Lang v. Wal-Mart Stores E., L.P.

• Decision Date: 02 March 2016
• Docket Number: No. 15–1543.,15–1543.
• Citation: 813 F.3d 447
• Parties: Nicole LANG, Plaintiff, Appellant, v. WAL–MART STORES EAST, L.P., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

813 F.3d 447

Nicole LANG, Plaintiff, Appellant,

v.WAL–MART STORES EAST, L.P., Defendant, Appellee.

No. 15–1543.

United States Court of Appeals, First Circuit.

March 2, 2016.

Carole C. Cooke, with whom Heidi A. Nadel and Todd & Weld LLP were on brief, for appellant.

Christopher B. Kaczmarek, with whom Jennifer M. Duke and Littler Mendelson, P.C. were on brief, for appellee.

Before TORRUELLA, LYNCH, and THOMPSON, Circuit Judges.

THOMPSON

, Circuit Judge.

OVERVIEW

Nicole Lang once worked for Wal–Mart Stores East, L.P. While there, she claimed a disability arising from her "pregnancy status," though she insisted that she could perform the essential functions of her job with a reasonable accommodation. Seeing things differently, Wal–Mart refused her accommodation request. And then, later on, Wal–Mart terminated her.

Lang eventually sued, claiming violations of the federal Americans with Disabilities Act (popularly known as the "ADA") and the New Hampshire Civil Rights Act. After discovery, the district judge granted Wal–Mart summary judgment on all claims. The judge's fairly-lengthy ruling failed to convince Lang. But for reasons we explain later, we think that summary judgment is called for—which leads us to affirm.

HOW THE CASE GOT HERE

Taking all disputed facts in the light most sympathetic to Lang (as the party opposing summary judgment), see Soto–Padró v. Pub. Bldgs. Auth., 675 F.3d 1, 2 (1st Cir.2012)

, we believe the competent summary-judgment evidence tells the following tale.

Sometime in July 2010, Lang became an "unloader" at Wal–Mart's distribution center in Raymond, New Hampshire. An unloader (as the name implies) unloads merchandise hauled to the center in tractor trailers. Wal–Mart's job-description form says that the "essential functions" of an unloader include "unloading freight from trailer manually or with power equipment." But the form also adds that "[m]ov[ing], lift[ing], carry[ing], and plac[ing] merchandise and supplies weighing up to 60 pounds without assistance" are "physical activities ... necessary to perform one or more essential functions of this position." Asked at her deposition whether Wal–Mart "expected [her] to be able to lift ... up to 65 pounds" by herself, Lang said "yes." That jibes with this statement by the center's distribution manager, who said that unloaders are required to "lift[ ] merchandise or supplies weighing up to 60 pounds without assistance."

Wal–Mart randomly assigns unloaders to trailers—usually one unloader per trailer, about 20 unloaders per shift—in a way so that the "oldest" trailer gets unloaded first.¹ Some freight—typically freight weighing more than 65 pounds (furniture, for instance)—is labeled "team lift," meaning the assigned unloader needs to have another unloader (and possibly more) help out. Most freight has no label or marks indicating its weight, however. So unloaders often do not know the freight's weight before lifting it, though the record is uncontested on the point that the great majority of freight weighs more than 20 pounds.

Unloaders occasionally use forklifts and other power equipment to unload some trailers—like when the trailers have merchandise stacked on pallets. We say "occasionally use" and "some trailers" for several reasons. One is that cargo frequently shifts in transit, breaking the pallets and forcing unloaders to remove items by hand. A second is that if an unloader spills cargo while using power equipment, she would then have to pick up the spilled cargo by hand. A third is that many vendors try to pack as much merchandise into the trailers as humanly possible, the result being that many trailers—including what the parties call "RBD" trailers—have cargo stacked from floor to ceiling. And unloaders must unload these trailers by hand, a time-consuming process, to be sure. All in all, according to the unrebutted affidavit of the operations manager at this Wal–Mart center, about "70% of the trailers require some degree of manual labor to unload them."

In late September 2010—about two months after becoming an unloader—Lang learned that she was pregnant. Her doctor told her on October 7 not to lift anything over 20 pounds. Convinced that her bosses at Wal–Mart would have a problem with a 20–pound restriction, Lang asked the doctor if "we [could] just hold off on the note." The doctor said okay—but added, "don't lift" anything over 25 pounds.

A week or two later—still in October 2010—Lang told her manager, Brian Hug, about the pregnancy and the lifting restriction. Hug was "excited" to hear about the pregnancy ("excited" is the word Lang used in her deposition). Hug asked her if she had a doctor's note, to which she answered "no." Lang did not ask Wal–Mart to accommodate her condition at that time. Instead she kept on doing her regular unloader duties, including lifting—though she later recalled getting more RBD trailers than usual to unload, and she sometimes had to ask other unloaders to help her.

On November 7, 2010, Lang pulled a muscle lifting a heavy, unmarked box. As for which muscle, she said in her interrogatory answers that she had pulled a "groin muscle"; later at a deposition she said that she had pulled a muscle in her "uterus"; and still later in court papers she said again that she had pulled a "groin muscle." Anyway, Lang told Hug about the pull that day, November 7. Hug brought her to the center's first-aid office. And someone from Wal–Mart's human-resource department—Bridget Ronaghan—drove Lang home, though Ronaghan made a point of telling her that her "pregnancy was a liability" and that she should ask for leave under the federal Family Medical Leave Act ("FMLA"). Lang's doctor told her to take some Excedrin

, soak in a tub, and ice the injured area.

Lang felt "fine" (her word) the next day. But Wal–Mart told her to take the day off. That same day, November 8, Lang's husband—also a Wal–Mart employee—asked the human-resource manager, Andrea Rose, if Lang could get reassigned to a less-demanding post (sweeper, cleaner, etc. ) or if she could just unload non-RBD trailers with a forklift. Rose refused, saying "if I had to accommodate [her], I'd have to accommodate the rest."

After talking with a lawyer at the New Hampshire Commission for Human Rights ("NHCHR," for short), Lang formally asked Wal–Mart for an accommodation near the end of November 2010. On the request-for-accommodation form, she listed "pregnancy" as her "condition or impairment." And the medical questionnaire filled out by her doctor said that she could not lift more than 20 pounds. As for an accommodation, Lang asked Wal–Mart to either assign her to "trailers that don't need to be unloaded by hand," or to give her a "job that doesn't deal with lifting over 20 pounds." But Wal–Mart said no, concluding that her pregnancy "is considered temporary" and so "not eligible for an accommodation." Wal–Mart also added that the lifting restrictions imposed by her doctor "prevent [her] from performing the essential functions" of her job. Lang did two things in response: First, she asked for permission from Wal–Mart to take FMLA leave of absence through June 18, 2011. And even though she would exhaust her FMLA leave rights by the end of December 2010, Wal–Mart approved the full leave amount. Second, while on leave, she filed a charge of discrimination with the NHCHR, alleging (as relevant here) that Wal–Mart had discriminated against her because of her "pregnancy status" and had failed to reasonably accommodate her "medical disability." Rose knew about Lang's NHCHR complaint, Lang tells us, though she does not tell us what the NHCHR did with her discrimination charge.

Lang gave birth to a son on June 15, 2011. After taking a six-week maternity leave, she returned to work as an FID Processor (Wal–Mart had given her unloader position to someone else). Her new job required her to (a) use a forklift to bring pallets of cargo to designated areas; (b) scan and label the cargo boxes; and (c) then put the boxes on a conveyor belt. Supervisors kept "eyeing" her as she did her FID–Processor duties, however, like she was doing "something wrong"—conduct that made her feel "uncomfortable." Adding to her belief that Wal–Mart was "targeting" her, some higher-ups there (a) saw her talking to an associate at work and told her not to speak with other workers; (b) occasionally had her repeat tasks, e.g., re-dusting an area she had already dusted—though she conceded that sometimes the request made sense, like the time someone from corporate was coming to visit and her bosses wanted everything to look clean; and (c) took days to finally approve her request for extra time so that she could use her breast pump during breaks.

In mid-November 2011, Lang hurt her arm while putting a box on the conveyor belt. She told a supervisor about what had happened. And the supervisor asked whether she was "joking." Another Wal–Mart manager brought her to the hospital, where a doctor diagnosed her with a pinched ulnar nerve, gave her a brace, and told her to ice her arm and take ibuprofen

. Consistent with its workers' compensation procedure, Wal–Mart gave Lang a "temporary alternative duty" assignment (involving dusting), which would allow her to work while she recovered—if she could not return to her regular job after 90 days, Wal–Mart would place her on workers' compensation.

About a month later, in December 2011, Lang still had arm pain. So human-resource manager Rose—without consulting Lang—placed her in another temporary alternative duty position, this one involving label sorting. According to Lang's deposition, Rose "felt like if she extended my [light duty] that I'd keep my income."

Lang and her husband had long wanted to move to Florida. And Rose had known about the couple's wish to move there since at least November 2011. In February 2012, Lang's husband asked for and received a transfer to a Wal–Mart distribution center in the Sunshine State. Wal–Mart, though, apparently had a policy prohibiting persons on...