Monday, April 25, 2016

8th Circuit Finds Employee's Transfer to Overnight Cashier Not An Adverse Employment Action

An item often litigated in employment discrimination cases is whether an action an employer takes amounts to an "adverse employment action."  In Kelleher v Wal-Mart Stores, Inc, (8thCir, March 31, 2016, Kelly, J.), that was the topic as the defendant Wal-Mart Stores was granted summary judgment as to all of the plaintiff's claims (disability discrimination, failure-to-accommodate, retaliation, and harassment).

The plaintiff, Kathy Kelleher, began working for Wal-Mart in 1995 as a truck unloader.  After about 2 years, she then switched to stocker, working the overnight third shift.  In 1997, Kelleher was diagnosed with Multiple Sclerosis (MS), which she verbally reported to her supervisors that her physician imposed a work restriction of no ladder use (ladder use was necessary to perform one or more essential functions of a stocker).  For the next few years, Kelleher submitted several requests for accommodation (RFA's).  IN June 2011, Wal-Mart's Accommodations Services Center manager determined that Kelleher's restrictions did not allow her to perform the essential functions of a stocker and she was later moved to the overnight cashier position as that position's functions seemed to align with her restrictions.  

Kelleher expressed fear that the new overnight cashier position would be more difficult because of her speech and eyesight and because she was nervous customers would make comments about her.  However, Kelleher did not provide any medical documentation evidencing that she could not perform the duties of her new position.  After she became a cashier, Kelleher continued to perform stocking duties within her restriction of no ladder use and allowed her to refrain from cashiering while continuing to stock.

Kelleher alleged that a change in her performance reviews indicated retaliatory treatment and 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.  

Disability Discrimination and Failure to Accommodate

For Kelleher to have established a prima facie case of discrimination based on disability, she had to show that she had (1) a qualifying disability, (2) qualifications to perform the essential functions of her position with or without reasonable accommodation, and (3) an adverse employment action due to her disability.  Both parties agreed that Kelleher is disabled withing the meaning of the ADA, but they did dispute whether she was qualified for her position, but the court did not have to address that issue because they decided that she did not suffer an adverse employment action, the third prong.  After all, Kelleher conceded that the overnight cashier position is less strenuous than stocking and it was accompanied by a $.20/hour raise.  The court did note that a transfer to a new position may be considered an adverse employment action if the plaintiff cannot perform the responsibilities of the new position due to disability.  Thus, because Kelleher could not show an adverse employment action, both her discrimination and failure to accommodate claims fell.

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