Benson v. Wal-Mart Stores E., L.P., 20-1495

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: GELPÍ, District Judge.
• Citation: 14 F.4th 13
• Parties: Margaret BENSON, Appellant-Plaintiff, v. WAL-MART STORES EAST, L.P., Appellee-Defendant.
• Docket Number: No. 20-1495,20-1495
• Decision Date: 15 September 2021

14 F.4th 13

Margaret BENSON, Appellant-Plaintiff,
v.
WAL-MART STORES EAST, L.P., Appellee-Defendant.

No. 20-1495

United States Court of Appeals, First Circuit.

September 15, 2021

Guy D. Loranger for appellant.

Katherine I. Rand, with whom Daniel R. Strader and Pierce Atwood LLP were on brief, for appellee.

Before Howard, Chief Judge, Thompson, Circuit Judge, and Gelpí,^* District Judge.

GELPÍ, District Judge.

This case, in federal court on the basis of diversity of citizenship, 28 U.S.C. § 1332(a)(1)(c), involves ambiguous job requirements, unclear expectations, and continuous miscommunications between appellant Margaret Benson ("Benson") and appellee Wal-Mart Stores East, L.P. ("Wal-Mart"). Based on our review of the district court record, we conclude the disputed factual evidence as adduced and the fair inferences therefrom reasonably support a case for disability discrimination under the Maine Human Rights Act and for retaliation under the Maine Whistleblower Protection Act and the Maine Human Rights Act. Therefore, for the reasons explained below, we reverse the grant of summary judgment and remand for further proceedings consistent with this opinion.

I. Standard of Review

We review the district court's grant of summary judgment in favor of Wal-Mart de novo . United States ex rel. Jones v. Brigham & Women's Hosp., 678 F.3d 72, 83 (1st Cir. 2012). Summary judgment is proper if Wal-Mart can demonstrate that "there is no genuine dispute as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). At this stage of the proceedings, we construe the record and all reasonable inferences from it in favor of the party opposing the summary judgment motion, Benson. Martínez v. Novo Nordisk Inc., 992 F.3d 12, 16 (1st Cir. 2021) (citing Rodríguez-Cardi v. MMM Holdings, Inc., 936 F.3d 40, 46 (1st Cir. 2019) ). Notwithstanding, "[e]ven in employment discrimination cases where elusive concepts such as motive or intent are at issue, summary judgment is appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Brandt v. Fitzpatrick, 957 F.3d 67, 75 (1st Cir. 2020) (quoting Ray v. Ropes & Gray LLP, 799 F.3d 99, 116–17 (1st Cir. 2015) ).

We present below all undisputed facts, relying both on the district court's opinion and order as well as the parties' proposed

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statements of uncontested facts that are properly supported by evidence on the record. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (noting that under Rule 56, "the court should review the record as a whole"). Any genuinely disputed material fact shall also be detailed therein, where it is relevant to either party's argument.

II. Background

Benson's story is complicated, involving multiple lawsuits, countless medical appointments, and a series of Wal-Mart administrators. In order to provide the reader all relevant information in a comprehensible manner, we begin with an overview of the events that led to this case and then turn to a more detailed description of the testimony, as needed.

A. Overview

In February 2013, Benson began her employment at the Wal-Mart store in Windham, Maine, as a cashier. In October 2014, Benson—at the time a grocery reclamation associate—suffered a piriformis injury while at work.¹ The injury prevented her from working and she took a leave of absence. Initially, Wal-Mart refused to acknowledge her injury was "work-related," but eventually agreed that it was and offered Benson a Temporary Alternative Duty (TAD) position that she accepted. Benson worked, apparently without incident from June 2015 when she returned, until April 2016 when she took another leave of absence to cope with the side effects of treatment for her injury.

Around the same time, in March 2016, Benson, through counsel, filed an action against Wal-Mart in the United States District Court claiming discrimination for failure to accommodate related to this workplace injury. Benson v. Wal-Mart Stores E., L.P., No. 16-cv-114 (DBH), 2017 WL 2729491 (D. Me. June 23, 2017) (" Benson I"). Ultimately, the district court in that case entered summary judgment for Wal-Mart. The legal analysis in that case has no bearing upon the case before us, but, as we will discuss later, Benson cites Benson I as motivation for Wal-Mart's alleged retaliation.

On October 14, 2016, with her first lawsuit still pending, Benson returned to work in another TAD position, as a People Greeter. Generally, People Greeters would welcome customers when they arrived at the store, provide front-end security, ensure customer safety in the greeting area, respond to electronic surveillance alarms, and provide customers with directions. On the days when Benson was scheduled to work, her assigned shift time was from 6:00 a.m. to 2:00 p.m. It was the practice of the store to have at least one People Greeter scheduled each day for each entrance while the store was open. If a People Greeter was absent, Wal-Mart tended to not replace them, so those functions went unfilled.

Upon Benson's return to work, two things happened that are important to her current claims. First, Benson informed management at the Windham store that she would continue to have regularly scheduled medical appointments for her work-related injury. In response, Nancy Little, a Wal-Mart store supervisor, assured her that "as long as [she] gave her notice [to the store's Personnel Coordinator] of when the time frame was, that they would take care of it and make [her]

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schedule fit accordingly." Second, Benson also learned of Wal-Mart's Attendance/Punctuality Policy-Maine ("Attendance Policy"), which had changed since Benson took a leave of absence earlier in the year.² With those facts in mind, we turn to the details of Wal-Mart's Policy and Benson's efforts to comply with them while attending to her health needs.

B. Wal-Mart's Attendance Policy

The Attendance Policy, effective October 2016 and applicable to Benson's claims, provides that it is understandable that employees "may have to miss work on occasion. However, regular and punctual attendance is a required and essential function of each associate's job." The Attendance Policy expressly states that "excessive absences or incomplete shifts" may result in termination. It further points out that "[w]hen possible, [an employee] should schedule time off in advance to avoid negatively affecting other associates, customers, and the company."

The Policy additionally states that "[a]n unauthorized absence may result from arriving late or leaving early, as well as missing entire scheduled shifts."³ The Attendance Policy specifically defines "unauthorized absences" as "any time [an employee is] away from a scheduled shift for a reason that is not [a]uthorized or approved by [a] supervisor or manager, unless [the employee] use[s] an income replacement benefit (such as PTO [or Paid Time Off], Sick Time or Personal Time)." Too many unauthorized absences could result in an employee being fired.

On the other hand, the Attendance Policy also provides a list of absences that are considered "authorized," and, therefore, per the Policy, need not be "approved by [a] supervisor or manager."⁴ Among those were "[w]orkers' compensation" absences. The "Responsibility to Notify Management" section of the Attendance Policy specifies that an employee "must make every effort to report absences or late arrivals (tardies) at least one hour prior to [the] scheduled start time, unless it would be unreasonable to expect [the employee] to report the absences due to circumstances outside of [the employee's] control." To notify management of an absence or late arrival, an employee must report by either calling a designated 1-800 number or using the "Wal-Mart One" website.⁵

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Benson understood, as she had discussed with Wal-Mart's management, that she could either provide verbal notice or make store management aware—via a written note—of her workers' compensation related absences. The term "workers' compensation," which is central to Benson's case, is not defined in the Attendance Policy.⁶

The Windham store manager, Susan Bradstreet ("Bradstreet" or "Manager Bradstreet"), interpreted "workers' compensation" to refer to "leaves of absence" authorized by Wal-Mart's third-party leave administrator for incapacity due to a workers' compensation related injury and/or time an associate was required to miss work in order to attend a medical appointment or receive treatment for a work-related injury. Manager Bradstreet did not consider time missed beyond that required to attend a medical appointment in connection with a workers' compensation injury to be authorized under the Attendance Policy. Manager Bradstreet expected associates who missed work due to a workers' compensation medical appointment to be able to produce documentation of such appointment upon request.⁷ Also, Bradstreet expected associates to schedule workers' compensation appointments during times when they were not scheduled to...