To support a failure-to-accommodate claim under the Americans with Disabilities Act, a plaintiff must establish both a prima facie case of discrimination and an employer’s failure to accommodate it. But how far must an employer go to fulfill the “interactive process” requirement of the ADA in deciding upon and implementing a reasonable accommodation? A recent decision by the 8th U.S. Circuit Court of Appeals may provide some useful guidance. Kelleher v. Wal-Mart Stores, Inc., 8th Cir., No. 15-2105, March 31, 2016.
Kathy Kelleher began working for Wal-Mart as a truck unloader in 1995. In 1997, she switched positions to “stocker,” working the third/overnight shift. In that same year, Kelleher was diagnosed with multiple sclerosis, and her doctor imposed a work restriction of “no ladder use.”
Using the ladder was an integral part of the stocker job. However, between 1997 and 2011, Wal-Mart accommodated Kelleher’s restriction, along with several other verbal requests for accommodations, including extra time during her shift to take medication and an extra 15-minute break in addition to her normal breaks. In fact, in 2009, a local human resources manager recommended that the request for extra break be denied for lack of medical support, but store management honored the request, allowing Kelleher to continue in her position, and implementing her requested accommodation.
In January 2011, Kelleher requested and was granted FMLA leave for an appendectomy. Upon her return, Kelleher’s permanent restrictions included no ladder climbing and no working in extreme temperatures, both of which were accommodated. In June of that year, Kelleher submitted a request for a second extra 15-minute break.
Months earlier, Wal-Mart’s procedure for determining accommodations had been centralized, so Kelleher’s her request was reviewed by corporate headquarters under the new procedure. Corporate headquarters suggested that Kelleher be taken out of her position and placed on leave until a “suitable reassignment meeting her work restrictions” could be found. Kelleher’s store manager began to look for such a position, stating to the store’s personnel manager that he wanted to “find something that would work for” Kelleher.
Kelleher then was placed in an overnight cashier position, which included a $.20/hour raise from the stocker position. The duties of the new position were very similar to the stocker duties, but with some additional responsibilities, including occasionally staffing a customer check-out lane.
Kelleher expressed that she was “nervous” that customers might make comments about her impairments. However, she provided no medical evidence that she was unable to perform the duties of the new position.
Although she began to work in the new position – with her “no ladder” restriction in place – she ultimately filed a lawsuit claiming that Wal-Mart had failed to accommodate her disability, and that she had been harassed and retaliated against, as well. Kelleher specifically claimed that Wal-Mart managers discriminated and retaliated against her by lowering her performance evaluation from “exceeds expectations” from “solid performer” and by “forcing her to work alone, giving her assignments that were difficult, rolling their eyes at her and acting exasperated when she walked by.”
The lower court granted summary judgment in Wal-Mart’s favor on all claims, and that decision was upheld on appeal to the Eighth Circuit. While the appellate court premised its decision on its finding that Kelleher did not suffer the requisite “adverse action” to support her claims, the specific facts that form the basis of the holding indicate that in this case, the company took actions that positively influenced the court’s decision, including the following:
- There was no documentation or evidence that Kelleher actually was subjected to harassment or comments by customers in her job as a cashier, or complained of such;
- There was no particular job responsibility that Kelleher was medically unable to perform in the position into which the company chose to move her;
- The company allowed the “no ladder” restriction to remain in place;
- The hourly wage in the new position was $.20/hour higher than in the old position; and
- The company fully documented the business-related reason for the decrease in Kelleher’s performance evaluation.
In this case, the time and effort spent by the employer to take seriously the medical restrictions, continue to attempt to allow the plaintiff to work productively, consider alternative jobs when changing her position became appropriate, and making a general effort to treat plaintiff fairly, all culminated in a dismissal of Kelleher’s claims that the company discriminated against her by failing to accommodate her disability.