Although she was offered a temporary assignment because of her foot injury, she could not commute to the job and was fired for excessive absenteeism.
Reversing in part the decision of the court below, the Ninth Circuit, in an unpublished decision, found that Walmart was not entitled to summary judgment against the ADA and FMLA interference claims of its former order-filler who had injured her foot at work, was offered a temporary alternative (TAD) duty assignment to which she could not commute due to her injury, and was terminated for excessive absenteeism on the same day she requested FMLA leave. The court, however, affirmed summary judgment against her FMLA retaliation claim (Hazelett v. Wal-Mart Stores, Inc., October 6, 2020, per curiam, unpublished).
Injury. Four years after the employee began working at a retail store near her home, she became an order-filler at a Walmart distribution center that was much further away. While there, she injured her foot. She filed for workers’ comp and later requested a leave of absence. Although Walmart offered her a TAD assignment, she could not drive due to her injury and the offered position required her to report to work very early in the morning before public transportation was available.
TAD assignment. Because the TAD form stated that if she refused the offered position, her benefits could be suspended or denied, the employee accepted the assignment. Unable to find transportation, however, she called out sick each day, believing the absences were excused because they were related to her worker’ comp injury. Although Walmart used the same third-party administrator to handle both its workers’ comp cases and its leave requests, the employee claimed she did not understand that she had to separately communicate with different departments at the company for leave requests and workers’ comp issues. She was ultimately fired for excessive absenteeism on the same day she requested FMLA leave.
The employee sued Walmart under the ADA, FMLA, and state law and the district court granted summary judgment to the retail giant on all claims.
FMLA interference. On appeal, the Ninth Circuit found significant fact issues as to the employee’s FMLA interference claim. The court noted evidence that the employee called into work every day to report her leave; provided a doctor’s note that covered more than one-third of her leave; and was confused about having to notify two different departments in the same company regarding her workers’ compensation claim and her leave request. The court also found it unclear whether Walmart provided the employee with written notice of any alleged deficiencies from her medical certification and allowed her to cure the deficiency.
In addition, Walmart’s TAD offer instructed the employee that if she did not accept, she could lose her job and benefits, the court observed, and a reasonable juror could conclude the employee thought she had to sign the TAD offer form in order to keep her workers’ comp benefits even though she was unable to commute to the job location. Fact issues also existed as to whether the employee failed to comply with Walmart’s policies and procedures for requesting leave and whether the policies were ambiguous.
ADA claim. As to the employee’s ADA claim, the court found for purposes of this motion that she was disabled, qualified, and was fired. Further, said the court, it appeared that Walmart did not participate in the interactive process and did not provide the employee with two requested accommodations: that she be given leave until released to drive and an assignment to an alternative job to which she could commute.
Further, the court pointed out, although it was not required to under the ADA, Walmart could have let her work at her previous location, which was much closer to her home, until she was released to drive or permitted her to start her new transfer job that had been approved one week after her accident. “Despite the fact her disabling injury was suffered in service of Wal-Mart, none of these possible accommodations were discussed, much less offered” said the court, finding fact issues with regard to the possible accommodations offered to the employee and whether there was a meaningful interactive process.
FMLA retaliation. Dismissing her FMLA retaliation claim, however, the court noted that when asked at her deposition for evidence she was retaliated against, she admitted she had none beyond her personal belief.
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