By Brandi O. Brown, J.D.
It was notable that the employee was disciplined only once in the decade before she took leave because of a disability but was then disciplined four times and fired in the year following her return.
A federal district court in Kansas denied, in large part, a motion for summary judgment filed by Walmart in an ADA and FMLA lawsuit brought by a pharmacy manager with a bad back and hip who was disciplined and fired after taking medical leave. The employer’s actions before, during, and after the employee took leave for surgery painted a picture that created genuine issues of material fact. The employee was only disciplined once in the decade before she took leave, her new manager complained repeatedly while she was out on leave, and then he disciplined her repeatedly upon her return, culminating in her termination. One unexhausted discipline-related claim was dismissed and some accommodation-related claims were abandoned or withdrawn, but otherwise the employer’s motion to dismiss was denied (Howard v. Walmart, Inc., April 23, 2020, Vratil, K.).
Leave for surgery. Ten years after the employee became a pharmacy manager for a Walmart in Kansas she was scheduled for surgery because of problems with her back and hip. She had begun using a chair to alleviate back pain a few years before, but had been instructed by her supervisor in late 2016 to file a medical accommodation form documenting her need to use the chair. Around the same time that the employer received her accommodation form, the employee’s supervisor was replaced. Shortly thereafter her request for accommodation was granted (with the exception of a request for automated pharmacy window shutters). Three months later the employee began a leave of absence for surgery.
Frustrated supervisor. While she was on leave her new supervisor called and texted her multiple times to ask when she would return, asked her to come into the pharmacy to perform inventory duties, and made his anger and frustration about her failure to return known. When she returned at the end of her three month leave, he was hostile towards her, acted like she should be punished for taking leave, and frequently “chewed [her] out.” According to witnesses, he required things of the employee that he did not require from other pharmacists and he wrote her up for things for which he did not discipline the other pharmacists.
Discipline and termination. Within two weeks of her return he gave her a First Written Coaching, which she disputed on several grounds, but to no avail. He also refused to let her coach her own staff, even though their mistakes were counted against her in the disciplinary coaching. That month he also denied her request to modify the schedule so that she would not be scheduled with back to back 12.5 hour shifts after consecutive days of work. She received a second coaching in February, a third in March, and in early July she was fired after a fourth disciplinary event. She disputed each of the disciplinary actions.
The employee filed a charge with the EEOC and subsequently filed suit against her employer, alleging that it had discriminated against her on the basis of her disability, failed to make reasonable accommodations, and retaliated against her for requesting accommodations and for taking medical leave. After discovery the employer filed a motion for summary judgment. With respect to the first disciplinary event, the court agreed with the employer that it had not been properly exhausted, as a discrete claim, so it granted the motion in regards to that claim.
Discrimination claims. However, as to the remaining disability discrimination claim under the ADA—based on the second and third disciplinary coachings, and the employee’s discharge—the court found they should proceed. Although the employer argued that temporal proximity between its discovery of the employee’s disability and the alleged adverse actions were not sufficient to sustain her claim, the court explained that the employee was not relying solely on that proximity.
Even while she was on leave her supervisor called and texted her several times and her coworkers told her that he was angry and frustrated with her. When she returned, moreover, she was confronted with “increased oversight, heavier scrutiny, and general hostility.” She was disciplined repeatedly in the months that followed, even though in the ten years preceding her disability she had only ever been disciplined one time. Those same considerations led the court to conclude that a reasonable jury could also find that the employer’s given reasons for its actions were pretext for disability discrimination.
Failure to accommodate. Although the employee abandoned her accommodation claim related to the automated shutters, she persisted with her accommodations claim based on the employer’s refusal to change the back-to-back 12.5 hour shifts in the schedule. In fact, the court concluded, the record revealed a genuine issue of material fact with respect to whether the employer engaged in a good-faith interactive process in order to identify a reasonable accommodation in that regard. Instead, the supervisor immediately rejected her request and told her the new schedule was “what we’re working with.” The employer also did not establish, as a matter of law, that the employee’s requested change was unreasonable or unnecessary.
Retaliation under ADA and FMLA. The record also created a genuine issue of material fact, the court explained, with regard to whether the employee’s accommodation requests (as claimed under the ADA) and her leave (as claimed under the FMLA) caused the adverse employment actions taken by the employer and whether the reasons given were pretextual. Again, the evidence of an about-face in the employee’s treatment was key. The employer received the employee’s first request for accommodation in February, she took three months of leave starting in June, during which the supervisor complained, called, and texted, and then when she returned she was met with increased and heavier scrutiny and oversight and overall hostility. She submitted another accommodation request in the month she returned. Two weeks after returning from leave she was disciplined, followed again in February and March and leading to her discharge in July.
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