Employment Law Daily Transferring stocker with MS to overnight cashier job (with a raise) not adverse
Monday, April 4, 2016

Transferring stocker with MS to overnight cashier job (with a raise) not adverse

By Kathleen Kapusta, J.D. A Walmart stocker who suffered from Multiple Sclerosis did not experience an adverse employment action when, as a result of job restrictions, she was transferred to an overnight cashier position. While physically less strenuous, the new position had almost identical skill requirements and her acceptance of the job was accompanied by a $.20/hour raise. Because she failed to make out a prima facie case of discrimination, she could not prove that Walmart failed to accommodate her disability, ruled the Eighth Circuit, affirming summary judgment against her ADA and state-law disability bias claims (Kelleher v. Wal-Mart Stores, Inc., March 31, 2016, Kelly, J.). Accommodation requests. After being diagnosed with MS, the employee verbally reported to her supervisors that her doctor imposed a work restriction of no ladder use. Not only was this restriction accommodated from 1997 through 2011, Walmart also accommodated her 2006 request for extra time during her shift to take her medication. In 2009, she submitted a formal request for an extra 15-minute break. Although the local HR manager recommended denying the request because he felt she should be reassigned to a different position, store management continued to accommodate her. In January 2011, the employee underwent an appendectomy. Upon her return to work, her doctor provided a note with permanent lifting, pulling, and climbing restrictions. When the employee was told she could not return to her stocker position with those restrictions, her doctor provided a new note requiring only that she not climb ladders or work in extreme hot or cold conditions. Transfer. In June 2011, the employee submitted another formal request for a second additional 15-minute break, which was accompanied by a doctor’s certification noting standing, lifting, and walking restrictions. She was subsequently assigned to stock the cereal aisle, which she found difficult to do without a ladder. An accommodations services center manager eventually reviewed the employee’s accommodation request and determined that she could not perform the essential functions of a stocker. Not wanting to terminate her, store management transferred her to the overnight cashier position, which included stocking duties but no ladder use. The employee subsequently sued for disability discrimination and failure to accommodate, retaliation, and hostile work environment. Disability discrimination. Agreeing with the court below, the Eighth Circuit found that the employee did not experience an adverse employment action when she accepted the cashier position. Not only did she concede that it was less physically strenuous, she received a $.20/hour raise. While she argued she was forced into a new position she did not want and that she felt would humiliate her (she was afraid customers would comment on her speech and eyesight), her concerns were vague, unsupported by any medical evidence, and ultimately insufficient to establish her claim, said the appeals court. She may have been apprehensive about taking on new responsibilities but there was no evidence she was actually subject to harassment or comments by customers as a cashier; that there was any particular job responsibility she was medically unable to perform; or that management ever determined she was unable to fulfill her new responsibilities. Thus, the change did not amount to an adverse action. Retaliation. The employee also claimed that after she made the June 2011 formal accommodation request, her performance ratings were lowered and as a result she received a smaller pay increase. For its part, Walmart contended that the decrease in ratings was a result of unresolved timeliness issues and that the manager who gave her the lower rating was not aware of her accommodation request. While the employee relied on “suspicious timing” between her accommodation request and the lower performance evaluation, she failed to offer any proof of pretext beyond timing. In addition, there was undisputed evidence that store management wanted to keep her employed and tried to find a suitable position for her. Thus, said the court, with temporal proximity alone to support her argument for pretext, she failed to create a triable fact issue on her retaliation claim. Hostile work environment. Nor did she establish she faced a hostile work environment. While she alleged she was held to a higher standard and assigned more difficult tasks, she offered no examples or evidence of an increased workload beyond stating that she had four pallets to stock one night. As to her claim that store management rolled their eyes at her and acted exasperated when she walked by, any looks or misconduct were minor, not physically threatening, and did not interfere with her work performance.

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