817 F.3d 624 (8th Cir. 2016), 15-2105, Kelleher v. Wal-Mart Stores, Inc.

Docket Nº:15-2105
Citation:817 F.3d 624
Opinion Judge:KELLY, Circuit Judge.
Party Name:Kathy Kelleher, Plaintiff - Appellant v. Wal-Mart Stores, Inc., Defendant - Appellee
Attorney:For Kathy Kelleher, Plaintiff - Appellant: Danita L. Grant, Nicholas C. Thompson, FUERSTE & CAREW, Dubuque, IA. For Wal-Mart Stores, Inc., Defendant - Appellee: Heidi Ann Guttau-Fox, Christopher R. Hedican, BAIRD & HOLM, Omaha, NE.
Judge Panel:Before SMITH, COLLOTON, and KELLY, Circuit Judges.
Case Date:March 31, 2016
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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817 F.3d 624 (8th Cir. 2016)

Kathy Kelleher, Plaintiff - Appellant


Wal-Mart Stores, Inc., Defendant - Appellee

No. 15-2105

United States Court of Appeals, Eighth Circuit

March 31, 2016

Submitted November 5, 2015

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Appeal from United States District Court for the Northern District of Iowa - Dubuque.

For Kathy Kelleher, Plaintiff - Appellant: Danita L. Grant, Nicholas C. Thompson, FUERSTE & CAREW, Dubuque, IA.

For Wal-Mart Stores, Inc., Defendant - Appellee: Heidi Ann Guttau-Fox, Christopher R. Hedican, BAIRD & HOLM, Omaha, NE.

Before SMITH, COLLOTON, and KELLY, Circuit Judges.


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KELLY, Circuit Judge.

Kathy Kelleher filed this action in the Iowa District Court in and for Dubuque County on December 31, 2013, alleging disability discrimination, failure to continue to accommodate, retaliation, and harassment. Wal-Mart later removed the case to the United States District Court for the Northern District of Iowa. The district court1 granted summary judgment in favor of Wal-Mart on all claims. We have jurisdiction pursuant to 28 U.S.C. § 1291 and, finding no error, we affirm.

I. Background

Kathy Kelleher began working for Wal-Mart in 1995 as a truck unloader for the Dubuque Wal-Mart store. After approximately two years, she switched positions to stocker, working the overnight third shift. Wal-Mart's job description for the stocker position states, among a list of requirements, that " mov[ing] up and down a ladder" is a physical activity " necessary to perform one or more essential functions" of the position. All stockers are subject to assignment in different areas of the store and move from department to department.

In 1997, Kelleher was diagnosed with Multiple Sclerosis (MS). She verbally reported to her work supervisors that her physician had imposed a work restriction of no ladder use. It is undisputed that from 1997 through 2011, Wal-Mart accommodated Kelleher's verbal request. Kelleher also submitted a series of other similar requests throughout that time period. In 2006, Kelleher submitted a formal Request for Accommodation (RFA) to take extra time during her shift to take her medication. Wal-Mart granted the request.

In 2009, Kelleher submitted an RFA seeking an extra fifteen-minute break. Wal-Mart's policy at that time required Kelleher's store to send the RFA to the local Market Human Resources Manager (MHRM) for a decision. The MHRM recommended that the store deny Kelleher's request for lack of proper medical documentation. The MHRM also noted that because Kelleher's physician indicated that she could not work on ladders, reassignment to a different position not requiring ladder use was recommended. Despite the MHRM's recommendation, store management continued to accommodate Kelleher by allowing her to remain a stocker and not use ladders. The store also allowed her the extra fifteen-minute break.

In January 2011, Kelleher requested and was granted FMLA leave for an appendectomy. Kelleher's physician provided her a return-to-work note listing a 10-pound weight lifting restriction, no pulling of pallets, no climbing of ladders, and no overhead lifting. The note also states that

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" [t]hese are permanent/medical restrictions." Since " mov[ing], lift[ing], [and] carry[ing] . . . merchandise and supplies weighing less than or equal to 50 pounds without assistance," and " pulling" were also necessary physical activities of the stocker position, the Personnel Coordinator at Kelleher's store informed Kelleher that she would be unable to return to her position as a stocker with those permanent work restrictions. In response, Kelleher contacted her physician, requesting a change to the restrictions. Kelleher's physician agreed to provide her with a new note, requiring only that she not climb ladders and not work in extreme hot or cold conditions. Management then allowed Kelleher to return to her stocker position without requiring her to use a ladder.

In June 2011, Kelleher submitted another RFA, seeking a second extra 15-minute break. The store preliminarily granted her request. Wal-Mart's procedure for determining appropriate employee accommodations, however, was centralized in 2010, so this time Kelleher's store was required to submit the RFA to corporate headquarters. A doctor's certification from Kelleher's physician accompanied her RFA, which stated that Kelleher's major life activities were affected as follows: she (1) could stand for 45 minutes before needing a 3-minute break; (2) could not lift over 10 pounds; (3) could not lift overhead; (4) could not walk over 300 feet; (5) could not climb ladders; and (6) could not work in temperature extremes. It is unclear from the record whether the restrictions identified were relevant to the request for a second extra 15-minute break, but it is undisputed that Kelleher did not ask her physician to modify the note to lift any of the additional restrictions.

After Kelleher's June 2011 RFA, her shift manager began assigning her to stock the cereal aisle, whereas previously she had been regularly assigned to stock the domestics and small furniture departments. Kelleher found the top shelves of the cereal aisle difficult to stock without a ladder. Kelleher's manager stated in her deposition that Kelleher was asked to stock the grocery sections of the store because Wal-Mart did not " have [the] staffing" that they used to, and " the priority for the night is always the consumables."

It was not until October 2011 that Accommodations Services Center manager Kirk Hancock, at Wal-Mart's corporate headquarters, reviewed Kelleher's June 2011 RFA and determined that the restrictions from her physician did not allow her to perform the essential functions of her job as a stocker. Hancock sent a letter to Kelleher's store on October 31, explaining his determination and indicating that Kelleher should be placed on unpaid personal leave for up to 90 days while Wal-Mart tried to find a suitable reassignment meeting her work restrictions. It seems that no one received the letter, as Kelleher continued to work as a stocker. On January 21, 2012, Hancock sent another letter stating that Wal-Mart was unable to find a suitable open position for Kelleher. He indicated that she could take FMLA or personal leave and apply for open positions within her work restrictions.2

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After he received Hancock's second letter, Robert Wallace Harding, Kelleher's store manager, instructed Jeri Barnhart, the store's personnel manager, " to go through...

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