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.

Thursday, April 14, 2016

Wisconsin Federal Court Allows Teacher's ADA and Retaliation Claims to Proceed to Trial

The plaintiff, Jamie Cole ("Cole") began working for the defendant Kenosha Unified School District Board of Education ("the District") in 2006 teaching special education at a high school in that district.  Since beginning her work with the District, Cole had worked at various other schools in the District.  Cole has Type 1 diabetes, which she has been controlling since 2003, and major depression, which was diagnosed in 2010.

Over the course of a few school years, Cole submitted numerous requests for accommodation for her disabilities, which were the focus of contested material facts in the motion for summary judgment filed by the District (the opinion goes into great detail about these requests).  Given the definite uncertainty as to when the District's duty to accommodate began, whether the District actually reasonably accommodate Cole, who was to blame for the multiple breakdown in communications between the parties, and whether Cole was retaliated against for her accommodation requests and EEOC complaint, the Court is allowing this case to proceed to trial.

Employer's Duty to Accommodate

To show a failure to accommodate, a plaintiff must establish that: 1) the plaintiff is a qualified individual with a disability; 2) the employer was aware of the disability; and 3) the employer failed to reasonably accommodate the plaintiff's disability.  Furthermore, employees must make their employers aware of any nonobvious, medically necessary accommodations with corroborating evidence such as a doctor's note or at least orally relaying a statement from a doctor, before an employer may be required under the ADA's reasonableness standard to provide a specific modest accommodation the employee requests.

After an employee has disclosed that she has a disability, the ADA requires an employer to "engage with the employee in an 'interactive process' to determine the appropriate accommodation under the circumstances."  An employee need only show that an accommodation seems reasonable on its dace, i.e., ordinarily or in the run of cases.  Once an employee has made this showing, the employer must then demonstrate undue hardship.

Disputed Facts

The Eastern District of Wisconsin found that there remained a significant number of disputed facts.  The District did not dispute the first and second elements of Cole's failure to accommodate claim (1. that she is a qualified individual with a disability, and 2. that they were aware of her disability).  However, based on the documents submitted into the record, there are present some dispute as to when the District's duty to accommodate Cole's disabilities attached.  Given it is the employee's duty to inform the employer of "nonobvious, medically necessary accommodations," it is disputed when Cole did this given she suffers from two disabilities. 

The court further noted that, "the third element of Cole's reasonable accommodation claim-whether the District failed to reasonably accommodate her disabilities-is undoubtedly in dispute."  The District did not argue that Cole's transfer request out of special education was not "unreasonable," but they do argue that the accommodations they did provide enabled Cole to perform the essential functions of her job, and that it had no duty to reassign Cole to a different position because either there was no position available for the transfer, she was not qualified for the positions that were available, or she rejected the opportunities to transfer, when offered.

The Court also only very briefly addressed Cole's retaliation claim finding that, "both the manner in which Cole was allegedly encouraged to withdraw her EEOC complaint and the various emails exchanged between District employees indeed suggest that Cole's requests may not have been handled promptly due to her 'history' with the District."  Given this, the Court held that Cole's retaliation claim could not fairly be disposed of before trial.

The case is Cole v. Kenosha Unified School District Board of Education, E.D. Wis., April 11, 2016, J.P. Stadtmueller)

Wednesday, April 6, 2016

Wisconsin State Bar Names THIS Blog 1 of 64 to Follow!

Though I have been severely slacking lately due to a heavy case load, the State Bar of Wisconsin recently named this blog as 1 of 64 in the state to follow!  You can see the other here.

I will do my best to put more current content up to remain worthy of these honors and mentions!