E.E.O.C. v. Wal-Mart Stores, Inc.

• Decision Date: 13 February 2007
• Docket Number: No. 06-1583.,06-1583.
• Citation: 477 F.3d 561
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. WAL-MART STORES, INC., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

477 F.3d 561

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. WAL-MART STORES, INC., Appellee.

No. 06-1583.

United States Court of Appeals, Eighth Circuit.

Submitted: November 16, 2006.

Filed: February 13, 2007.

Barbara L. Sloan, argued, EEOC, Washington, D.C., for appellant.

Denise M. Anderson, argued, Kansas City, MO, for appellee.

Before RILEY, HANSEN, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

The Equal Employment Opportunity Commission (EEOC) brought this action against Wal-Mart Stores, Inc. ("Wal-Mart"), alleging that Wal-Mart violated the Americans with Disabilities Act (ADA). The EEOC contends that Wal-Mart improperly refused to hire Steven Bradley because of mobility limitations caused by cerebral palsy. The district court granted Wal-Mart's motion for summary judgment, concluding that (1) Bradley's impairment rendered him unqualified for the positions of greeter and cashier and that (2) insufficient evidence existed from which a reasonable factfinder could conclude that Wal-Mart's reasons for not hiring Bradley were pretextual. We hold that material facts remain in dispute and therefore reverse.

I. Background

We recite the facts in the light most favorable to the EEOC, the nonmoving party. Cerebral palsy limits Bradley's use of his legs. The condition forces Bradley to use forearm crutches for short-distance walks and a wheelchair for longer distances. Standing for more than 10 to 15 minutes is also difficult for him. With support, however, Bradley can walk, climb stairs, and get on and off of a stool—albeit slowly. Bradley's condition also restricts his third and fourth fingers, as they generally work as a unit and preclude him from using his fourth finger, for example, when typing. His limited hand dexterity, however, does not limit his ability to write, hold things, or complete "daily living" tasks, such as carrying laundry or groceries or doing his own housekeeping. Bradley's grip strength is normal, and his arm strength allows him to lift heavy objects even from his wheelchair.

Bradley applied for a "Greeter/Customer Assistant" position at his local Wal-Mart in July 2000 while he was employed as a proofreader at Banta Publishing, Inc ("Banta").¹ On his application, Bradley indicated that he was seeking part-time employment, was willing to work from 4:30 p.m. until close during the weekdays, and stated that working on weekends was "negotiable." In response to a question on the July 2000 application asking whether Wal-Mart could contact Bradley's current employer, Bradley checked "no," explaining that his employer would fire him if it found out that he was seeking part-time work. Wal-Mart did not hire Bradley in July 2000.

In early 2001, Wal-Mart expanded its store in Richmond, Missouri, into a Supercenter, which required it to hire additional employees. Wal-Mart received hundreds of applications for the new positions. To facilitate the hiring process, Wal-Mart created a hiring committee, comprised of several new managers, including Maxine Hicks, to assist in conducting interviews and reviewing applications. The committee screened applications based primarily on work history and availability. If an application made it past the initial screening process, a member of the committee would schedule an interview. The committee member who interviewed the applicant, however, was not necessarily the member who screened the application.

After the initial interview, if the committee member considered the applicant a potential hire, he or she would place the applicant's application in a pile so that the applicant's references could be checked. Store Manager David Penny normally made all hiring decisions. However, during the transition to a Supercenter, Personnel Manager Janet Daugherty made the hiring decisions, including whether to conduct a second interview based on the recommendations of the committee member who conducted the initial interview.

In February 2001, Bradley submitted an application to work at the Wal-Mart Supercenter. On the application, he indicated that he was applying for the position of "Associate/Any Department," was seeking full-time or part-time employment, and was willing to work from 4:00 p.m. to 10:00 p.m. every evening, including Saturday and Sunday. Bradley's application indicated that he had completed two years of college. Bradley's employment history showed that he currently worked at Banta as a proofreader and that he had previously worked at Ray County Fellowship as an administrator. Bradley did not answer the application question asking whether Wal-Mart could contact his employer.

Based on his application and resume, Bradley was called in for an interview. He arrived for the interview in his wheelchair, and Hicks conducted the interview. Hicks questioned Bradley about his physical ability to work from his wheelchair and told him that she thought he was "best suited for a greeter job."

The Wal-Mart store did not hire Bradley; however, the parties dispute who actually made the decision not to hire Bradley. The EEOC cites EEOC Investigator Michael Katz's interview notes to support its position that a factual dispute exists as to whether Hicks or Daugherty made the decision. In his interview notes, Katz wrote that Hicks indicated that the "primary reason" for not hiring Bradley was "the absence of a history of job stability," and a "secondary factor" in "her decision" was "limits on his availability" because working weekends was "negotiable." In her deposition, however, Hicks stated that she had "no idea" why Bradley was not hired. In contrast, Daugherty testified that she was the decisionmaker who decided not to hire Bradley for a position. Wal-Mart maintains, based on Daugherty's statement, that Daugherty, not Hicks, made the decision not to hire Bradley.

In her deposition, when asked why Wal-Mart did not hire Bradley after his February 2001 application, Daugherty testified that Bradley was not hired for a position based on "a lot of factors." She stated that the "main reason" that Bradley was not hired was because of his job history, as she was personally aware of short-term jobs that Bradley had held in their "small town" that he failed to list on his application. Those "short-term jobs" included Bradley working at a Texaco service station ("Texaco"), at Shirkey Leisure Acres ("Shirkey"), at Station Casino, and as a police dispatcher. When asked whether she had information that Bradley had worked at Texaco, Shirkey, Station Casino, and as a police dispatcher at the time she made the decision not to hire him, she responded, "I'm not—I don't know." She said that she personally saw Bradley working at Texaco; however, she admitted that she was "not sure if in all honesty if he worked at Texaco before or after the application." (Emphasis added). She also admitted that she was unsure whether Bradley worked at Shirkey or Station Casino before or after she decided not to hire him.

Bradley, however, never worked at Station Casino; he only attended a six-week training course there. In addition, he started working at Shirkey in June 2001, after Wal-Mart rejected his application. Likewise, he began working for the Richmond Police Department as a police dispatcher in August 2001, after Wal-Mart rejected his application. Finally, Bradley only worked at Texaco for one day.²

In assessing Bradley's availability, Daugherty admitted that she conflated Bradley's July 2000 and February 2001 applications. She conceded that she "would hire him" with the availability listed on the February 2001 application. When asked why the availability listed on his February 2001 application was still a reason for not hiring him, she replied:

Because he was currently still employed at Banta. He was full-time there. So you figure—and this is just my assumption on it. You figure he works approximately 40 hours a week there. What I was looking for was that would fit that availability, that 4:30 to 10 would be a part-time person. You add those hours on and you're talking 60 hours a week. The availability wasn't there versus this person's availability because they didn't have the full-time job. I felt like they could do it. I felt like this would be a hardship. My opinion. Not that he indicated that. I mean I had come to that, my own conclusion there, that that would be a hardship. That didn't rule him out by any means.

(Emphasis added). With regard to his July 2000 application, Daugherty testified that, at the time that Bradley submitted his February 2001 application, she "remembered looking at [the July 2000] application" in which Bradley indicated that his hours were `negotiable' on "Saturday and Sunday." She said she did not "have time to fool with somebody that's negotiable." While she never pulled Bradley's July 2000 application, she stated that she remembered it when reviewing his February 2001 application. A further concern that Daugherty had, based on the July 2000 application, was Bradley's indication that Wal-Mart could not contact his then current employer, Banta, as a reference. Bradley, however, did not limit contact of his employer on his February 2001 application.

When asked whether there were any other reasons why she decided not to further process Bradley's application, Daugherty replied "yes" and stated:

"One [reason] was remember his—the way he responded to associates in the store as a customer, typically at the return center. Also, we had loss prevention that were suspecting. Availability from a previous application which was before this time frame, but typically when someone puts down availability, they will do whatever they can to get their foot in the door, but typically they want to stick with that availability. At the time that we were hiring, his availability was limited from 4:30 to 10. We really needed people that had open availability that were able to work anytime, not that there couldn't have been an exception because there could have been. That's...