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Equal Employment Opportunity Commission v. Kohl's Dep't Stores, Inc.

United States Court of Appeals, First Circuit

December 19, 2014


Page 128


Donna J. Brusoski, Attorney, Office of the General Counsel, with whom P. David López, General Counsel, Carolyn L. Wheeler, Acting Associate General Counsel, and Jennifer S. Goldstein, Acting Assistant General Counsel, were on brief, for appellant.

Melinda J. Caterine, with whom Fisher & Phillips LLP, was on brief, for appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges. KAYATTA, Circuit Judge, dissenting.


Page 129

TORRUELLA, Circuit Judge.

Appellant Equal Employment Opportunity Commission (" EEOC" ) asserts that Appellee Kohl's Department Stores, Inc. (" Kohl's" ) refused to provide former employee Pamela Manning (" Manning" ) with reasonable accommodations in violation of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12112. The EEOC also asserts that by failing to comply with the ADA, Kohl's constructively discharged Manning. The district court entered summary judgment in favor of Kohl's on both claims. We affirm.

I. Background

The following undisputed facts are summarized in the light most favorable to the EEOC, the nonmoving party. See, e.g., McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014). Manning suffers from type I diabetes. In October 2006, Manning was hired as a part-time sales associate at Kohl's. She held this position until January 2008, when she was promoted to a full-time sales associate. As a full-time associate working thirty-six to forty hours per week, Manning worked predictable shifts which usually started no earlier than 9:00 a.m. and ended no later than 7:00 p.m. In January 2010, Kohl's restructured its staffing system nationwide, resulting in a reduction in hours for Manning's department. Manning maintained her full-time status because she performed work for various other departments depending on the store's needs.

Due to the restructuring, Kohl's scheduled Manning to work various shifts at different times during the day, and her scheduled hours became unpredictable as a result.[1] For example, Manning worked more " swing shifts" -- a night shift followed by an early shift the next day. In March 2010, Manning informed her immediate supervisor, Michelle Barnes (" Barnes" ), that working erratic shifts was aggravating her diabetes and endangering her health. Barnes told Manning to obtain a doctor's note to support her accommodation request. Manning visited her endocrinologist, Dr. Irwin Brodsky (" Dr. Brodsky" ), who determined that the stress Manning experienced due to working erratic hours deleteriously contributed to her high glucose levels. Dr. Brodsky wrote a letter to the store manager of Kohl's, Tricia Carr (" Carr" ), requesting that Kohl's schedule Manning to work " a predictable day shift (9a-5p or 10a-6p)," R. at 74, so that Manning could better manage her stress, glucose level, and insulin therapy.

Upon receiving Dr. Brodsky's letter, Carr contacted Kohl's human resources department seeking guidance in responding to Manning's request. She emailed a copy of the letter to Michael Treichler (" Treichler" ) in Human Resources and told him that Manning had submitted a written doctor's " request[] that I accommodate [Manning] with day time hrs only." Id. at 75. Treichler told Carr that with Manning

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" being a full-time associate[,] she would still need to be required to work nights and weekends and that definitely we would make sure she had no swing shifts, [and] that we would make sure . . . that she really took her breaks." Id. at 160 (Carr Dep.). Treichler asked Carr to meet with Manning and propose the no-swing-shift option. Carr's deposition testimony describing this sequence of events is consistent with an email she received from Treichler responding to her request for guidance, which stated, in part: " Clearly we can not have [Manning] not work nights. BUT, we can work with her to avoid the 'swing shifts' - A [sic] close followed by an open." Id. at 76.

Subsequently, Carr and Barnes arranged to meet with Manning on March 31, 2010, to discuss Manning's concerns. During their meeting, Manning requested " a steady schedule, [but] not specifically 9:00 to 5:00." Id. at 282 (Manning Dep.). As she described it, " I was asking for a midday shift, what I had before, the hours that I had before [the departmental restructuring]." Id. at 281 (Manning Dep.). Manning also expressed a willingness to work on weekends.

Carr responded that she had spoken to " higher-ups" at the corporate management level, and that she could not provide a consistently steady nine-to-five schedule.[2] Manning became upset, told Carr that she had no choice but to quit because she would go into ketoacidosis[3] or a coma if she continued working unpredictable

Page 131

hours, put her store keys on the table, walked out of Carr's office, and slammed the door. Concerned, Carr followed Manning into the break room outside, asking what she could do to help. During this conversation, Carr attempted to calm Manning down and requested that she reconsider her resignation and discuss other potential accommodations. Manning responded, " Well, you just told me Corporate wouldn't do anything for me." Id. at 458-59 (Manning Medical Examination). Manning did not discuss any alternative accommodations with Carr, but instead cleaned out her locker and left the building. A few days later, on April 2, 2010, Manning contacted the EEOC, seeking to file a discrimination claim.

On April 9, 2010, Carr called Manning to request that she rethink her resignation and consider alternative accommodations for both part-time and full-time work. Manning asked Carr about her schedule, and Carr informed her that she would need to consult with the corporate office about any accommodations. After this phone call, Manning had no further contact with anyone at Kohl's. Because it had not heard from Manning, Kohl's treated her departure as voluntary and terminated her employment later that month.

The EEOC brought this current suit on Manning's behalf in the United States District Court for the District of Maine in August 2011. The district court entered summary judgment in favor of Kohl's, concluding on the ADA claim that Manning had failed to engage in an interactive process in good faith and on the constructive discharge claim that a reasonable person in Manning's position would not have felt compelled to resign.

II. Discussion

The EEOC appeals the district court's grant of summary judgment in favor of Kohl's on both the ADA discrimination claim and the constructive discharge claim. We review a district court's grant of summary judgment de novo. E.g., Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 136 (1st Cir. 2012). We draw " 'all reasonable inferences in favor of the nonmoving party,'" id. (quoting Sánchez-Rodríguez v. AT & T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012)), " 'without deference to . . . the district court,'" id. (quoting Hughes v. Bos. Mut. Life Ins. Co., 26 F.3d 264, 268 (1st Cir. 1994)).

Summary judgment is appropriate if the moving party demonstrates that there is " no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Acevedo-Parrilla, 696 F.3d at 136. There is no genuine dispute of material fact when the moving party demonstrates that the opposing party has failed " to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. ...

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