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U.S. Equal Employment Opportunity Commission v. Wal-Mart Stores Inc.

United States District Court, D. Maine

August 13, 2019

WAL-MART STORES, INC., et al., Defendants.



         This case arises out of a request for a work-related accommodation made by a Walmart[1] employee. The Equal Employment Opportunity Commission (“EEOC”) alleges that Walmart failed to provide the employee with a reasonable accommodation and subsequently terminated her because of her disability, in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. § 12101, et seq. (West 2019). The parties have each filed motions for summary judgment.[2] For the reasons detailed below, I deny both motions.


         The following undisputed facts are drawn primarily from the parties' joint stipulation of facts (ECF No. 26-1), as well as the EEOC's and Walmart's separate statements of fact.

         Veronica Resendez began working for Walmart in 1999 as a Cashier in Texas. In 2009, Resendez transferred to the Walmart store in Augusta, Maine, where she most recently worked as a Consumables Sales Associate. The parties stipulate that, “[a]t all relevant times, Resendez had a disability, as that term is defined under the ADA . . . .” ECF No. 26-1 ¶ 11. Beginning no later than January 2013, Resendez's disability[3] prevented her from performing the essential functions of her job as a Consumables Sales Associate. In mid-January, Walmart provided Resendez with an accommodation request form to complete. A little over a week later, Resendez returned the form and a medical questionnaire that had been completed by her medical provider to Walmart, requesting that Walmart accommodate her in her then-current position by not requiring her to climb ladders or get on her knees. After returning the completed accommodation request form, Resendez requested a medical leave of absence through April 30, which Walmart approved.

         Walmart's Accommodation Service Center (“ASC”) is the division of the company's Benefits Department that processes employees' accommodation requests. In a letter dated February 3, 2013, Walmart denied Resendez's request to be accommodated in her then-current position because the medical restrictions imposed by her doctor prevented her from performing several of the essential functions of her position: lifting 25 pounds and moving up and down a ladder. Instead, Walmart offered Resendez the alternative accommodation of reassignment to a different, vacant position. Walmart has a policy that governs reasonable accommodations for employees (the “Accommodation Policy”), including reassignment.

         When a disabled employee is eligible for reassignment, the Accommodation Policy provides that the ASC will identify positions that constitute a lateral transfer or demotion for which the employee is qualified, and will then conduct searches for vacant positions that match that description within the employee's “home facility” for up to 90 days. ECF No. 26-3 at 2. The only positions at Walmart that constituted a lateral transfer or demotion, and which Resendez was qualified to perform with or without reasonable accommodation, were Fitting Room Associate and People Greeter (together, “suitable positions”). Walmart informed Resendez in its February 3, 2013, letter that the ASC had conducted an initial search for vacancies for suitable positions at Resendez's home store in Augusta but had not discovered any. Walmart also advised Resendez that the company would continue to actively search for suitable reassignment positions at the Augusta facility for up to 90 days.

         During the 90-day period between February 4 and May 5, 2013, the ASC conducted weekly searches for vacant Fitting Room Associate and People Greeter positions at the Augusta store. Although Walmart did not search for positions at other nearby stores, during the 90-day search period two Fitting Room Associate positions were posted at the Waterville store.[4] The first was a temporary Fitting Room Associate position, which was posted on March 6, 2013. That position was filled by an external applicant two weeks later. Then, on March 22, 2013, a full-time Fitting Room Associate position was posted at the Waterville store. An employee at the Waterville store who had requested a reasonable accommodation because of medical restrictions resulting from pregnancy was reassigned to that position.

         Walmart's searches did not reveal any vacancies for Fitting Room Associate or People Greeter positions at the Augusta store. Therefore, at the end of the 90-day period, Walmart sent Resendez a letter dated May 8, 2013, explaining that the company had not identified any vacant, suitable positions to which Resendez could be reassigned as a reasonable accommodation. Walmart continued to allow Resendez to take an unpaid leave of absence for up to a year as a further accommodation and informed Resendez that she could apply for open positions at her store in Augusta and at other stores while she was on leave. While Resendez was on unpaid leave, she learned that an employee named Doreen planned to retire from her Fitting Room Associate position at the Augusta store and she approached the Augusta personnel coordinator to ask about Doreen's position. Resendez ultimately did not fill the position.[5]

         On March 4, 2014, Resendez informed the personnel coordinator at the Augusta store that her medical restrictions had not changed and that she could not return to work in her prior position. In response, Walmart terminated Resendez's employment.


         “Summary judgment is warranted if the record, construed in the light most flattering to the nonmovant, presents no genuine issue as to any material fact and reflects the movant's entitlement to judgment as a matter of law.” Miceli v. JetBlue Airways Corp., 914 F.3d 73, 80-81 (1st Cir. 2019) (quotation marks omitted). “In the lexicon of Rule 56, ‘genuine' connotes that the evidence on the point is such that a reasonable jury, drawing favorable inferences, could resolve the fact in the manner urged by the nonmoving party, and ‘material' connotes that a contested fact has the potential to alter the outcome of the suit under the governing law if the controversy over it is resolved satisfactorily to the nonmovant.” Blackie v. Maine, 75 F.3d 716, 721 (1st Cir. 1996). When the parties have each filed motions for summary judgment, the “court must consider each motion separately, drawing inferences against each movant in turn.” Id.

         “The ADA prohibits employers from discriminating against a ‘qualified individual'-defined as ‘an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires'-on the basis of disability.” Audette v. Town of Plymouth, MA, 858 F.3d 13, 20 (1st Cir. 2017) (quoting 42 U.S.C.A. § 12111(8)). Discrimination on the basis of disability includes “not making reasonable accommodations to the known physical or mental limitations” of an employee, unless the employer can demonstrate that the accommodation would impose an undue hardship. 42 U.S.C.A. § 12112(b)(5)(A). To prevail at the summary judgment stage, an employee claiming that an employer failed to reassign the employee as a reasonable accommodation must present sufficient evidence to show: (1) that the employee was disabled under the ADA; (2) that the employee could perform the essential functions of the position she desired either with or without a reasonable accommodation; and (3) that the employer knew of the employee's disability, yet failed to reasonably accommodate it. Audette, 858 F.3d at 20-21. “Moreover, the employee must demonstrate that there is an actual vacant position” to which she could have transferred. Id. at 21.

         Here, the parties agree that Resendez was disabled under the ADA and that she could perform the essential functions of the Fitting Room Associate job. The parties dispute whether there was an actual vacant position to which Resendez could have transferred and, relatedly, whether Walmart failed to reasonably accommodate her disability. I address each ...

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