Employment Law Daily Wal-Mart need not accommodate employee after transfer when he had already been accommodated for 15 months
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Thursday, January 18, 2018

Wal-Mart need not accommodate employee after transfer when he had already been accommodated for 15 months

By Lisa Milam-Perez, J.D.

Although a Wal-Mart parts clerk’s functional limitations following a stroke had been accommodated for 15 months, he was unable to advance past summary judgment on his disability discrimination claims arising from his termination following his transfer to a new position. The employee was unable to perform in the new position, and the fact that he had been accommodated in his old job didn’t mean Wal-Mart had to continue to do so, a federal court in North Carolina held. “If courts allowed such actions to proceed as plaintiff suggests, employers would be discouraged from doing precisely what was done here, which was to temporarily lessen the physical requirements of a job in hopes that the employee’s functional capacity would be restored. Such a result would clearly be antithetical to the ADA and the ADAAA,” the court wrote (Moore v. Wal-Mart Stores East, LP, January 12, 2018, Cogburn, M. Jr.).

Impaired by a stroke. In his position as parts clerk in Wal-Mart’s Shelby, North Carolina Transportation Office, the employee regularly lifted over 50 pounds. Following a June 2014 stroke, medical leave, and extensive rehabilitation, he returned to his job without restrictions. He continued his rehab, though, and though he had trouble moving his left side, he expected that he would continue to improve. His supervisors told him they would to their best to accommodate him as long as he could continue to do most of the job. They noticed that certain tasks were left undone, and that he wasn’t safely and properly stocking the shelves. Still, they did not reprimand him, exercising restraint in light of his healthcare provider’s full release and their belief that his condition and his work would improve.

Transfer and termination. One day, however, one of his supervisors saw him fall backwards while trying to get on a forklift (because he couldn’t properly grasp the forklift with his left hand). This incident and other observations led the supervisors to determine that his condition wasn’t improving, and that he would likely require an accommodation. So the employee filed the requisite paperwork to seek an accommodation. The request was denied, as Wal-Mart determined he could no long perform the essential functions of the parts clerk position. The company did, however, transfer him to a driver coordinator position, which he was qualified to perform within his work restrictions. He had trouble adjusting to the new role, however, and when he couldn’t perform the job functions, he was discharged. He filed suit under the ADA alleging he was denied a reasonable accommodation and was unlawfully terminated due to his disability.

Disabled. Wal-Mart argued that the employee was not a “qualified individual with a disability” but the court, looking to the ADAAA, put the focus not on “qualified” (which, in Wal-Mart’s view, resolved the matter, because he was not) but on the substantial limitations on major life activities resulting from his stroke. The stroke significantly impacted the left side of his body, including the use of his left arm and the loss of peripheral vision in his left eye, and required him to use a leg brace and cane. Consequently, the employee was limited in performing manual tasks, seeing, walking, lifting, and working. As such, the court found he was disabled within the meaning of the ADA, as viewed through the lens of the stated goals of the ADAAA of expanding the protections of the statute.

Essential functions. The parts clerk job requires the ability to lift 50 pounds and to safely climb ladders in order to reach items on high shelves. These are essential functions: Wal-Mart deemed them essential, they are contained in the job description, and several employees had attested as much. And the employee gave no indication he was physically capable of carrying out these functions, with or without accommodation. He noted that other employees assisted him, retrieving objects on high shelves for him and such, but as the court pointed out, “[i]t is well-established that accommodations reallocating essential functions or requiring other employees to carry them out are not reasonable accommodations.” Nor would Wal-Mart be required to “implement an unsafe accommodation” of removing the safety protocol attendant to the position, which the employee could not carry out.

Reasonable accommodation. But the employee did not contend he could still perform the essential functions of the job with or without an accommodation. Nor did he claim that he suggested accommodations but Wal-Mart rejected them. Rather, he argued that he performed satisfactorily in the job for 15 months upon his return with no complaints from his supervisors. In his view, this showed that Wal-Mart accommodated him before and could continue to do so. But the court would not commit Wal-Mart to an indefinite term of allowing only partial performance, despite its having done so for an extended period following the employee’s return. It was uncontested that the employer let him perform only certain functions of the job after he returned to “full duty,” but it was with the understanding that his condition would eventually improve and he would be able to resume the full duties of the job. Wal-Mart “was not required to maintain that diminished level of exertion indefinitely, as the duty to provide an accommodation does not include creating a permanent light-duty position that does not otherwise exist,” the court wrote.

Transfer was reasonable accommodation. He also argued that Wal-Mart never engaged him in the interactive process, so he never had the chance to explore other potential reasonable accommodations. When the employee was unable to return to “full duty” as a parts clerk, however, Wal-Mart offered him a transfer to another position as a more permanent accommodation—which it was not required to do—and the employee accepted the accommodation. As such, Wal-Mart was entitled to summary judgment on the employee’s failure-to-accommodate claim.

Discrimination. As for the employee’s claim he was unlawfully discharged, the court found he could not clear the initial threshold of establishing that he was meeting Wal-Mart’s legitimate expectations in the driver coordinator position from which he was discharged. The employee did not contest Wal-Mart’s evidence of his repeated mistakes, or challenge the employer’s assertions that it provided him additional training and counseling, counted groups of mistakes together instead of individually in order to show leniency and afford him a bit more time to adjust to the job. For his part, the employee continued to point to his 15 acceptable months performing the parts clerk job in a light-duty capacity—and he now tried to argue that the discrimination occurred in the reassignment from that position. But even if the court were to allow him to amend his complaint accordingly, his claim would still fail, as he would be unable to show that he was reassigned for a discriminatory reason.

“While sympathetic to plaintiff’s plight, his disability, and his clear desire to work, courts cannot punish defendant for ‘bend[ing] over backwards’ to accommodate plaintiff by deeming defendant ‘to have conceded the reasonableness of so far-reaching an accommodation,’” the court wrote, granting summary judgment in Wal-Mart’s favor on his discrimination claim.

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