Equal Emp't Opportunity Comm'n v. Wal-Mart Stores, Inc.

• Decision Date: 18 December 2018
• Docket Number: 17-cv-739-bbc
• Citation: 345 F.Supp.3d 1046
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. WAL-MART STORES, INC. and Wal-Mart Stores East, LP, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

345 F.Supp.3d 1046

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.WAL-MART STORES, INC. and Wal-Mart Stores East, LP, Defendants.

17-cv-739-bbc

United States District Court, W.D. Wisconsin.

Signed December 18, 2018

Carrie Vance, U.S. Equal Employment Opportunity Commission, Milwaukee, WI, Gregory Gochanour, Jean P. Kamp, Laurie S. Elkin, U.S. Equal Employment Opportunity Commission, Chicago, IL, Laurie Ann Vasichek, U.S. Equal Employment Opportunity Commission, Minneapolis, MN, for Plaintiff.

Carlos R. Pastrana, Emery K. Harlan, Warren E. Buliox, MWH Law Group, LLP, Milwaukee, WI, for Defendants.

OPINION AND ORDER

BARBARA B. CRABB, District Judge

Paul Reina, who has multiple disabilities, worked as a cart pusher for defendants Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP, from 1998 to 2015. Plaintiff Equal Employment Opportunity Commission has filed this lawsuit under Americans with Disabilities Act, 42 U.S.C. § 12112(a) et seq., contending that defendants failed to provide Reina with a reasonable accommodation and terminated his employment because of his disabilities. Now before the court is defendants' motion for summary judgment. Dkt. # 21. For the reasons explained below, I am denying the motion because I conclude that disputed issues of material fact remain that must be resolved by a jury. Fed. R. Civ. P. 56(a).

From the parties' proposed findings of fact, I find the following facts to be material and undisputed.

UNDISPUTED FACTS

A. Background

Paul Reina is 40 years old and deaf with developmental, visual and intellectual impairments. He spent the first six years of his life in an institution, after which Rose Slaght and her husband became his foster parents. Slaght is Reina's legal guardian. Reina is nonverbal, but his family and job coaches communicate with him using different forms of sign language. His receptive skills are better than his expressive skills.

Reina's first job during high school was working in a laundromat, and he later worked in a delicatessen. In October 1998, Reina's high school program helped him become a cart pusher (also sometimes referred to as a "cart attendant" or "courtesy associate") at the Wal-Mart store in Beloit, Wisconsin, where he worked until June 12, 2015.

While Reina was working at the Beloit store, defendants had policies in place to foster equal employment opportunities, provide accommodations in employment for people with disabilities, prevent unlawful discrimination on the basis of a protected characteristic (including disability) and provide for prompt investigation and documentation of reported violations of the policies. Defendants train their employees on the Americans with Disabilities Act and disability rights, including issues of accommodation and accessibility. Between January 6, 2014 and June 12, 2015, defendants also had a policy prohibiting any form of violence in the workplace.

Defendants' policies provide that reasonable accommodation requests should be acted upon and communicated to the employee as soon as possible and that managers should determine whether the employee can continue to perform his job while the request is pending. Although managers generally make accommodations at the store level, defendants have an Accommodations Services Center, which is a corporate division devoted to requests for accommodation. Defendants' policies instruct managers to inform the center if they decide to deny an accommodation request for any reason.

Employees and managers had access to defendants' policies through the company's intranet, which is referred to as "the Wire." In 2015, employees could access the Wire only from computers located inside Wal-Mart facilities.

B. Reina's Accommodations and Job Duties

In February 1999, the store agreed to provide Reina the following accommodations: (1) he could work with his job aide; (2) he would not have to handle fragile merchandise; and (3) he would not be assigned to do tasks that he was incapable of handling. While employed with defendants, Reina always worked with a job coach, including Slaght, Matt Coppernoll, Margie Polizzi and Mike Fallon. Coppernoll was Reina's primary job coach from 2005 to 2015, and the other individuals filled in for Coppernoll on a substitute basis. (Defendants point out that there is no evidence that any of these individuals were professionally trained as job coaches or that they provided job training or placement services, but for ease of reference, I will continue to refer to them as job coaches, as the parties do.) Reina's family arranged for the job coaches, who were paid through the Medicaid waiver program. One job coach, Polizzi, submitted to a background check and fingerprinting. (The parties do not say whether defendants requested these things.)

The primary purpose and function of a cart pusher or cart attendant has remained the same during Reina's employment with defendants. The job description for a cart attendant, as revised on July 31, 2007, identifies the following as essential functions:

• Maintains availability of and organizes carts and flatbeds, assists customers with transporting items, loads merchandise into customer vehicles and properly and safely utilizes cart retrieval equipment (or the "cart caddy").

• Provides customer service by acknowledging the customer, identifying customer needs, assisting with purchasing decisions, locating merchandise, resolving customer issues and concerns and promoting products and services, while maintaining a safe shopping environment.

Employees working in other positions at the store provide customer assistance, such as stockers who load and unload items for customers, and greeters who direct and assist customers. Defendants do not require cart attendants to use the cart caddy unless they are pushing more than 10 carts at a time. Managers can direct cart attendants to use the cart caddy, but one is not always available. (Although Reina's job coaches say that Reina was as efficient or more efficient at clearing carts manually than other cart pushers who used the cart caddy, defendants question the basis of their knowledge.)

Although the parties dispute whether all of the functions of a cart attendant were considered essential for Reina's position and whether and to what extent his job coaches may have performed his job for him, they do not dispute the following:

• Coppernoll watched for oncoming cars when Reina was retrieving carts and directed Reina's attention to the location of carts as needed.

• Coppernoll and Polizzi tried to make sure Reina stayed focused on his job duties.

• When Reina was pushing a long line of carts, Polizzi would steer the front with one finger. Fallon grabbed the front cart to keep it in line. (It is unclear from the job coaches' testimony whether Reina could have steered a lesser number of carts on his own.)

• When a cart caddy was used, Reina collected and loaded the carts onto the caddy and his job coach operated the mechanism to drive the machine. (The parties dispute to what extent and how safely Reina was able to operate the cart caddy by himself.)

• When Reina was collecting carts, Coppernoll held the lead cart for Reina to prevent it from rolling away.

• Reina picked up trash in the parking lot, wiped down carts if they were wet and broke down boxes.

• Reina waved and smiled at customers on occasion and helped them load items into their cars. Slaght alerted Reina if a customer said hello or needed help. Polizzi encouraged Reina to interact with customers. About once a week, Coppernoll would coach Reina to carry a customer's groceries to his or her car, and Reina loaded and unloaded the cart. Polizzi noted that other cart pushers had walkie talkies to alert them when a customer needed assistance but that Reina was not provided a walkie talkie.

• Polizzi worked alongside Reina as he collected carts or picked up trash either to model the job for Reina or to remain active while Reina worked. Defendants never told Polizzi that this was not acceptable.

Defendants never told Slaght that they did not want Reina's job coach to operate the cart caddy, steer carts or hold the lead cart.

Several different managers rated Reina's performance between 1998 and 2014, and their evaluations were generally positive and complimentary, noting that Reina was a "solid performer" and was meeting expectations. The following are examples of the comments that managers made about Reina on his evaluations:

• According to Reina's 1999 evaluation, he took "direction very well from job coach," "does his job to the best of his abilities," "works very well with fellow associates."

• Reina's 2000 evaluation states that "Paul brightens everyone's day with his endearing personality," "finds enjoyment in all he does" and "every person here finds Paul a very special young man."

• Reina's 2001 evaluation notes that he is "always prompt with good attendance," "steadily pushes carts" and "keeps up well."

• Reina's 2002 evaluation states that "Paul has been a great cart pusher" and his "job coach has kept him more active which he seems to like—works steady always."

• Reina's 2003 evaluation notes that "Paul is very dependable and hard working. Constantly maintaining carts in corrals" and "[l]oved to keep busy."

• Reina's 2004 evaluation states that he "worked to the best of his ability" but advised him to "remember to push under 10 carts at a time" and to "constantly monitor carts."

• Reina's 2013 evaluation states that "Paul does well with making sure carts are full in the bay. Paul is good at making sure that there are no stray carts all over and makes sure that all the carts are cleaned up around the building."

• Reina's 2014 evaluation stated:

Paul is a pleasure to work with. Paul knows his expectations and does his job. Paul gets along with his fellow associates as well is friendly to the customers. Paul's attendance is decent having not missed any of his shifts, which shows his dedication to the job. Paul is good about making sure the carts are cleaned out of

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