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

• Decision Date: 23 June 2017
• Docket Number: CIVIL NO. 2:16-CV-114-DBH
• Parties: MARGARET BENSON, PLAINTIFF v. WAL-MART STORES EAST, L.P., DEFENDANT
• Court: U.S. District Court — District of Maine

MARGARET BENSON, PLAINTIFF v. WAL-MART STORES EAST, L.P., DEFENDANT

CIVIL NO. 2:16-CV-114-DBH

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

June 23, 2017

DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This is a case asserting disability-based employment discrimination contrary to the Maine Human Rights Act (MHRA), 5 M.R.S.A. § 4572(2). The defendant removed it to this court based upon diversity of citizenship jurisdiction, 28 U.S.C. § 1332. There are two claims: failure to reasonably accommodate, from October 2014 to June 2015, an employee's medical restrictions arising out of an injury in October; and actual discrimination in failing to hire the employee for a different position within the company after the October injury. The defendant Wal-Mart Stores East, L.P. (Wal-Mart) has moved for summary judgment on its employee Margaret Benson's claims. Because it is a summary judgment motion, I take all disputed facts in Benson's favor, and draw all inferences favorable to her. The motion is GRANTED.

Reasonable Accommodation

Benson worked for Wal-Mart as a Grocery Reclamation/DSD Receiving Associate. It is undisputed that Benson's "positions of Grocery Reclamation Associate (primary job) and DSD Receiving (secondary job) required her to lift up to 25 and 50 pounds, respectively."¹ It is also undisputed that after her injury in October 2014 she could no longer perform these job requirements.² Benson has not asserted that these were not essential functions of that job.

Benson claims that for a period of time Wal-Mart failed to reasonably accommodate her medical restrictions that arose out of her October injury. The basis for her claim is that the company treats work-related injuries differently from non-work-related injuries. For an employee with a work-related injury, Wal-Mart creates a temporary position in a job category that the injury's limitations permit the employee to perform.³ For non-work-related injuries, however, Wal-Mart refuses to create a temporary position and requires the employee to meet the physical requirements of the position she occupied, or to pursue an accommodation within that position.⁴ According to a Wal-Mart co-manager at the store where Benson worked:

[I]f an associate is injured at work, we do what we can do to accommodate their restrictions, meaning we are able to move them to a job that's not maybe their primary job in order to accommodate them. . . . [But i]f you are injured away from work and you can't perform the essential functions of yourjob, you need to go on a leave of absence until you can perform the essential functions of your job because that is your job.

Susan Bradstreet Dep. Tr. 15:9-17 (ECF No. 48-3).

Here, when Wal-Mart first learned of Benson's injury, it believed that the injury was work-related and therefore initially offered Benson a temporary assignment⁵ as a people greeter, fitting room attendant, or paper shredder.⁶ Benson was willing to accept the offer after taking a three-day hiatus her doctor recommended. When Benson returned to work three days later, however, Wal-Mart withdrew that offer because it had concluded from a new medical examination that Benson's injury was not work-related.⁷ (Benson has not argued that the non-work-related classification at that stage was inaccurate or itself discriminatory.) Benson did have the option to "apply for those positions [people greeter; fitting room attendant; paper shredder] as opposed to keeping her current position." Susan Bradstreet Dep. Tr. 16:3-4 (ECF No. 48-3). She did not do so.⁸ Wal-Mart gave Benson an unpaid leave of absence. Severalmonths later after another medical examination, however, Wal-Mart concluded that Benson's injury was in fact work-related. Then it gave her workers' compensation benefits and revived its October offer of a TAD position. Benson returned to work in the TAD position as a people-greeter in June 2015, but with the benefits due a grocery reclamation associate, along with a pay raise.⁹ In the interim, she had been on unpaid leave from October 2014 to June 2015, which is the subject of her discrimination claim for failure to accommodate. She again went out on leave in the spring of 2016 when her injury prevented her from doing the job of people greeter. Margaret Benson Dep. Tr. 155:1-3 (ECF No. 49). Apparently she left the company altogether in February 2017. Pl.'s Opp'n to Def.'s Mot. Summ. J. 8 (ECF No. 62).

Benson argues that Wal-Mart's treatment of employees with work-related injuries shows that letting her perform the duties of one of the three positions (people greeter, fitting room attendant, paper shredder) from October 2014 to June 2015 was a reasonable accommodation that would have caused no undue hardship to Wal-Mart, and therefore that Wal-Mart's failure to do so during that period violated the reasonable accommodation requirement of Maine's disability discrimination law. See 5 M.R.S.A. §§ 4553(2)(E) & (9)(A) (defining reasonable accommodation). But Wal-Mart cites EEOC guidance that permits employers tocreate temporary light duty positions for employees injured on the job without requiring the employer to create positions for disabled workers who are disabled from a non-work-related injury.¹⁰

Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 18 (1st Cir. 1998), provides guidance on how to assess Benson's reasonable accommodation claim.¹¹ According to Soto-Ocasio, "[i]t is plaintiff's burden to prove that, at the time she sought to resume her job, she had the ability to perform [its] essential functions."¹² 150 F.3d at 18. Here, Benson has presented no evidence that she had the ability to perform the essential functions of Grocery Reclamation/DSD Receiving Associate. The fact that Wal-Mart creates temporary positions such as people greeter, fitting room attendant, or paper shredder for employees with work-related injuries does not show that Benson has the ability to perform the essential functions of a Grocery Reclamation/DSD Receiving Associate.

In Soto-Ocasio, the First Circuit dealt with a record where the employee had "presented no 'specific, competent evidence' [that she was able to perform her essential job functions]. . . . Instead, she has concentrated on the argument that [her employer] also had an ADA-imposed burden: to be responsive to plaintiff's request for reasonable accommodation," i.e., to engage meaningfully in an interactive process to identify a reasonable accommodation. 150 F.3d at 18-19. The First Circuit ruled that:

[P]laintiff's assertion that [her employer] failed to engage in "meaningful" interaction with plaintiff regarding reasonable accommodation is of no moment—or, more precisely, it puts the cart well before the horse—because no reasonable trier of fact could have found, on this record, that plaintiff was capable of performing the duties [of her position], with or without reasonable accommodation.

Id. at 19.

That is Benson's situation here. She has not presented evidence of her ability to perform the essential functions of a Grocery Reclamation/DSD Receiving Associate. Although it is a stretch, she does present evidence that, taken in the light most favorable to her, might show that Wal-Mart failed to engage meaningfully in the interactive process over an accommodation, namely the failure by certain members of management to respond to each one of her many emails or phone calls.¹³ But aside from Wal-Mart's distinction between work-related and non-work-related injuries, Benson has shown no accommodation that Wal-Mart could have made to the GroceryReclamation/DSD Receiving Associate position Benson actually held so as to make it possible for her to continue in that position. The First Circuit has stated: "To be sure, the term 'reasonable accommodation' may include 'job restructuring [and] part-time or modified work schedules.' However, the ADA does not require an employer 'to reallocate job duties in order to change the essential function of a job.'" Soto-Ocasio, 150 F.3d at 20 (citations omitted); accord Lang v. Wal-Mart Stores East, L.P., 813 F.3d 447, 455-56 (1st Cir. 2016) (reasonable accommodation does not require excusing employee from manual lifting requirement of a position).

Instead, Benson argues that reassignment was required to accommodate her injury. Pl.'s Opp'n to Def.'s Mot. Summ. J. 10-11 (ECF No. 62). In particular, she says:

Benson's position as a Grocery Reclamation [sic] is not at issue. The issue is whether Benson could perform the essential functions for the positions of people greeter, fitting room attendant or personnel associate.

Id. at 11 (emphasis added). Benson then argues that "[e]ssential function means the fundamental duties of the employment position the individual with a disability holds or desires." Id. (emphasis added). Both the MHRA, 5 M.R.S.A. § 4553(8-D), and the ADA, 42 U.S.C. § 12111(8), do refer to "the essential functions of the employment position that such individual holds or desires," but the "or desires" language covers employees who seek reassignment to a vacant position. See Audette v. Town of Plymouth, No. 15-2457, 2017 WL 2298070, at *6 & n.10 (1st Cir. May 26, 2017) ("[T]he employee must demonstrate that there is an actual vacant position to which she can transfer. 'An employer is notrequired by the ADA to create a new job for an employee . . . .'"(citations omitted)). Benson has not shown that any of these positions was in fact vacant, only that Wal-Mart was willing to create a temporary position for workers injured on the job.¹⁴

I conclude that under the standards of Soto-Ocasio, Wal-Mart is entitled to summary judgment on Benson's claim under the reasonable accommodation requirement.

Discrimination in Failure to Hire (Count II)

The dispute here is over a "UPC Office" position in the Windham Wal-Mart store that Benson wanted and did not obtain.

When Benson was injured in the fall of 2014, Wal-Mart employed two UPC Office employees at the Windham store. Benson's burden to establish a...