Kelleher v. Wal-Mart Stores, Inc.

• Citation: 817 F.3d 624
• Decision Date: 31 March 2016
• Docket Number: No. 15–2105.,15–2105.
• Parties: Kathy KELLEHER, Plaintiff–Appellant v. WAL–MART STORES, INC., Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

817 F.3d 624

Kathy KELLEHER, Plaintiff–Appellant

v.WAL–MART STORES, INC., Defendant–Appellee.

No. 15–2105.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 5, 2015.

Filed: March 31, 2016.

Nicholas C. Thompson, argued, Danita L. Grant, on the brief, Dubuque, IA, for Plaintiff–Appellant.

Heidi Ann Guttau–Fox, argued, Omaha, NE, for Defendant–Appellee.

Before SMITH, COLLOTON, and KELLY, Circuit Judges.

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 "[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

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 the job codes and see what would fall in place for [Kelleher] so we don't have to terminate her. We need to find something that will work for her." Barnhart and Harding determined that the position of overnight cashier would work best.

Kelleher first heard about the search for a new position for her when she was called in to discuss the overnight cashier position. When Harding and Barnhart told her they could not "find another job for [her] at [that] point," Kelleher says she felt pressured to accept the new position.

Wal–Mart's description for "cashier" does not include ladder use as an "essential function" or "physical activity," and the position is less physically strenuous than stocking.³ The overnight cashier position also included a $.20/hour raise from Kelleher's stocker position. The overnight cashier duties were very similar to the stocking duties Kelleher had performed for fourteen years, but with some additional responsibilities associated with staffing the customer check-out lane. Generally, however, an overnight cashier performs more stocking than cashiering. During the overnight third shift, the Customer Service Manager stays at the front of the store all night cashiering, and only calls an additional cashier (an overnight cashier like Kelleher) to help if the store becomes busy. Otherwise, overnight cashiers stock the store.

Kelleher expressed fear that the new cashier position would be more difficult for her because of her speech and eyesight, and she was nervous that customers would make comments about her. She produced no medical evidence, however, that she could not perform the duties of her new position. After becoming a cashier, Kelleher continued to perform stocking duties within her restriction of no ladder use. Moreover, during the pendency of litigation, Wal–Mart allowed Kelleher to refrain from cashiering while continuing to stock.

Kelleher alleges that a change in her performance reviews indicated retaliatory treatment. She received "exceeds expectations" ratings and accompanying pay raises for her performance reviews from 1998 through 2010. On August 4, 2011, after she had submitted her RFA on June 15, 2011, she received a lower "solid performer" rating and a lesser pay raise. She received a $.40 pay raise rather than a $.50 pay raise. Kelleher's annual "solid performer" rating continued through 2014.

Kelleher also alleges that after she submitted her accommodation request in June 2011, store management began harassing her by forcing her to work alone, giving her assignments that were difficult, rolling their eyes at her and acting exasperated when she walked by, ostracizing her, holding her to a higher standard than other employees, and by giving her twice the workload of other employees. She alleged that management also asked her about the status of completion of her work more often than they asked other employees.

II. Discussion

We review the district court's grant of summary judgment de novo, viewing the facts in the light most favorable to Kelleher, the non-moving party. Robinson v. Am. Red Cross, 753 F.3d 749, 754 (8th Cir.2014)

.

A. Disability Discrimination and Failure to Accommodate⁴

Kelleher asserts a failure-to-accommodate claim under the Americans with Disabilities Act (ADA) and the Iowa Civil Rights Act (ICRA). The ADA prohibits employers from discriminating "against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a)

. This includes "not making reasonable accommodations to the known physical or mental limitations of...