Dominick v. Wal-Mart Stores Incorporated

Filing 38

ORDER granting in part and denying in part 30 Motion for Summary Judgment. Summary judgment is granted in Walmart's favor on Dominick's claims that are based on its failure to engage in the interactive process in good faith. In all other respects, Walmart's motion is DENIED. Signed by Judge John W Sedwick on 6/28/16. (JWS)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF ARIZONA 10 11 Mary Ann Dominick, 12 13 14 Plaintiff, vs. Wal-Mart Stores, Inc., 15 Defendant. ) ) ) ) ) ) ) ) ) ) 3:14-cv-08192 JWS ORDER AND OPINION [Re: Motion at Docket 30] 16 17 18 I. MOTION PRESENTED Defendant Wal-Mart Stores, Inc. (“Walmart”) moves at docket 30 for summary 19 judgment pursuant to Federal Rule of Civil Procedure 56, supported by a statement of 20 facts at docket 31. Plaintiff Mary Ann Dominick (“Dominick”) opposes at docket 35, 21 supported by controverting and additional statements of fact at docket 36. Walmart 22 replies at docket 37. Oral argument was requested but would not assist the court. 23 24 25 II. BACKGROUND Walmart hired Dominick as an Overnight Stocker in 2007. 1 Dominick claims that on May 25, 2013, she experienced an allergic reaction to the floor waxing chemicals 26 27 28 1 Doc. 36 at 1 ¶ 1. 1 that were used during her shift.2 She testified that she “started feeling burning in [her] 2 scalp, and [her] face, and [her] neck, and [her] throat was starting to close.”3 She had 3 complained to her Walmart managers about her chemical insensitivity before, she says, 4 but this was the most severe reaction she had ever had.4 5 On May 30 Dominick wrote an “Incident Report” to her W almart managers 6 describing this allergic reaction and stating that “[m]anagement could have avoided this 7 situation by not placing me in the area of waxing.”5 On June 6 Dominick submitted to 8 Walmart a formal reasonable accommodation request pursuant to the Americans with 9 Disabilities Act (“ADA”).6 She stated that she suffers from anaphylactic reactions to 10 “chemicals/floor stripper/waxing vapors” and requested assignments that were at least 11 six aisles away from the waxing crew.7 Walmart granted this request on July 9 and 12 informed Dominick that she would be given work assignments 134 feet away from 13 “chemical toxins with the fans blowing away from [her] location.”8 14 Dominick claims that her supervisor at the time, Renita Cruz (“Cruz”), was 15 “frustrated” that Dominick was granted this accommodation and tested its boundaries 16 constantly.9 For instance, on July 20 Cruz assigned Dominick to work in the Crafts 17 Department. The parties dispute this assignment’s proximity to the floor chemicals: 18 19 20 21 22 2 Id. at 6-7 ¶¶ 22-23. See also Doc. 31-1 at 4 lns. 14-17; Doc. 31-1 at 182; Doc. 36-1 at 3 ¶ 7. 3 Doc. 31-1 at 31. 4 23 Doc. 36-1 at 3 ¶¶ 8-10. 5 24 25 Doc. 31-1 at 182. 6 Id. at 191. 26 7 27 8 28 9 Id. Id. at 195. Doc. 36-1 at 4 ¶¶ 18, 20. -2- 1 Dominick claims she was only 82 feet from where the floor crews were working,10 2 Walmart claims she was “on the opposite side of the [s]tore.”11 Dominick states that 3 while working in the Crafts Department she “suffered another major reaction to the floor 4 crew’s chemicals.”12 She also claims that she was assigned to work less than 134 feet 5 from the floor crew on July 30 and August 6.13 Dominick wrote her Walmart managers 6 a letter dated August 8 in which she complained about being assigned work that 7 violates her accommodation. She stated that Cruz was knowingly placing her “in 8 assignments where [Cruz] knows the footage has violated that [accommodation] and is 9 a life threatening situation” and asked Walmart to assure her that this would not 10 11 continue.14 Dominick states that on August 8 she met with Cruz and Walmart Personnel 12 Coordinator Kellie Rogers (“Rogers”), and Cruz told her that she was being assigned to 13 the Chemical aisle.15 According to Dominick, Rogers told her that she needed to 14 provide Walmart with a list of chemicals to which she was allergic, a list of departments 15 where she could work, and make a second formal reasonable accommodation 16 request.16 17 18 On August 12 Dominick submitted her second reasonable accommodation request, asking to be kept at least 20 feet from the 13 substances that she listed in her 19 20 21 22 10 Doc. 36 at 11 ¶ 36; Doc. 36-1 at 4 ¶ 22. 11 23 Doc. 31 at 8 ¶ 36 (citing Vance Decl., Doc. 31-1 at 107 ¶ 31). 12 24 25 Doc. 36-1 at 4-5 ¶ 25. See also Doc. 31-1 at 198-200. 13 Doc. 31-1 at 198-99. 26 14 27 15 28 16 Id. at 199. Doc. 36-1 at 5 ¶ 28. Id. ¶ 29. -3- 1 request.17 She later submitted to Walmart a list of departments where she thought she 2 could work.18 According to her, Walmart never asked her for additional information 3 related to this second request.19 Walmart denied the request on October 3, stating that 4 it could not guarantee that she would not come into contact with the substances she 5 listed, and offering her the alternative accommodation of a mask to use while she 6 worked.20 Dominick claims that a mask would not be an effective accommodation.21 7 Walmart then offered to reassign Dominick to a position in the day shift, away 8 from the floor-waxing crew.22 Dominick declined, stating that doing so would interfere 9 with her medical appointments,23 decrease her wages,24 and prevent her from running 10 her own business during the day.25 Walmart also offered to reassign Dominick to back- 11 room, fitting-room, or cashier positions. Dominick declined these offers too, stating that 12 if she were to work in a fixed location, as opposed to one that rotates, she w ould be 13 exposed to the floor crews’ chemicals inevitably.26 For example, she testified that the 14 problem with being a cashier is that “when people buy this stuff it still goes through the 15 cashier.”27 16 17 17 18 18 19 19 20 21 22 Doc. 31-1 at 202-03. Doc. 31-1 at 208. Doc. 36-1 at 5 ¶ 30. 20 Doc. 31-1 at 210. 21 Doc. 1 at 7 ¶ 62. 22 23 Doc. 36 at 16 ¶ 52; Doc. 31-1 at 6 ¶ 39. 23 24 25 Id. 24 Doc. 31-1 at 9 lns. 15-19. 26 25 27 26 28 27 Id. at 83 lns. 3-17. See also id. at 84 lns. 9-10. Doc. 36 at 16-17 ¶ 53. Doc. 31-1 at 87 lns. 11-13. -4- Dominick reported a workplace knee injury in January 2014.28 She continued to 1 2 work on a light duty day shift for several months before she took medical leave for knee 3 surgery. She returned to work on the night shift with light duty restrictions in the end of 4 July.29 Dominick claims that, on the night she returned to work after her surgery, Cruz 5 assigned her to work closer than 134 feet to the floor crews and she suffered another 6 allergic reaction.30 7 Dominick states that Rogers and Walmart Store Manager Carmon Ramirez 8 called her into the office in September at the end of her shift and told her that if she 9 could not lift items that weighed 50 pounds, or obtain another reasonable 10 accommodation of her inability to satisfy that requirement, she would not be allowed to 11 return to work.31 She was put on unpaid medical leave, she states, and not allowed to 12 return until October 20, 2015. 32 Dominick filed the instant two-count action against Walmart in October 2014. 33 13 14 The first count alleges that Walmart violated the ADA by failing to engage her in the 15 interactive process required by the ADA, by failing to provide her with a reasonable 16 accommodation, and by discriminating and retaliating against her.34 The second count 17 alleges companion claims under the Arizona Civil Rights Act, A.R.S. § 41-1461, et 18 seq.35 19 20 21 22 28 Doc. 36 at 19 ¶ 61. 29 Id. 30 23 Doc. 36-1 at 7 ¶¶ 49-53. 31 24 25 Id. at 7-8 ¶¶ 54-55. 32 Id. at 8 ¶¶ 56-57. 26 33 27 34 28 35 Doc. 1. Id. at 8-10. Id. at 10-11. -5- 1 Dominick returned to work at Walmart in 2015.36 Her previous managers no 2 longer supervise her, she states, and her new managers have been “180-degrees 3 different” in accommodating her disability: they tell her where the floor crews are waxing 4 so she can avoid them, reassign the floor crews away from where she is working, 5 provide her with assistance with items that weigh more than 25 pounds, and rotate her 6 among departments to keep her at least 134 feet away from the floor crews.37 7 8 9 III. STANDARD OF REVIEW Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”38 The 10 materiality requirement ensures that “only disputes over facts that might affect the 11 outcome of the suit under the governing law will properly preclude the entry of summary 12 judgment.”39 Ultimately, “summary judgment will not lie if the . . . evidence is such that 13 a reasonable jury could return a verdict for the nonmoving party.”40 However, summary 14 judgment is mandated under Rule 56 “against a party who fails to make a showing 15 sufficient to establish the existence of an element essential to that party’s case, and on 16 which that party will bear the burden of proof at trial.”41 17 The moving party has the burden of showing that there is no genuine dispute as 18 to any material fact.42 Where the nonmoving party will bear the burden of proof at trial 19 on a dispositive issue, the moving party need not present evidence to show that 20 21 22 36 Doc. 36 at ¶ 64. 37 23 Doc. 36-1 at 8 ¶¶ 58-64. See also Doc. 36 at 20-21 ¶¶ 64-65. 38 24 25 Fed. R. Civ. P. 56(a). 39 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 26 40 27 41 28 42 Id. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Id. at 323. -6- 1 summary judgment is warranted; it need only point out the lack of a genuine dispute as 2 to any material fact.43 Once the moving party has met this burden, the nonmoving party 3 must set forth evidence of specific facts showing the existence of a genuine issue for 4 trial.44 All evidence presented by the non-movant must be believed for purposes of 5 summary judgment, and all justifiable inferences must be drawn in favor of the 6 non-movant.45 However, the non-moving party may not rest upon mere allegations or 7 denials, but must show that there is sufficient evidence supporting the claimed factual 8 dispute to require a fact-finder to resolve the parties’ differing versions of the truth at 9 trial.46 10 11 IV. DISCUSSION A. The Interactive Process 12 The ADA broadly prohibits employers from discriminating against employees on 13 the basis of disability.47 To help accomplish this objective, it imposes on employers an 14 affirmative duty to make “reasonable accommodations” to their employees’ “known 15 physical or mental limitations” unless doing so would impose an undue hardship. 48 In 16 some instances it is easy for an employer to identify the appropriate reasonable 17 accommodation. Where that is not the case, the employer must “initiate an informal, 18 interactive process with the individual with a disability” to “identify the precise limitations 19 resulting from the disability and potential reasonable accommodations that could 20 21 22 43 23 Id. at 323-25. 44 24 25 Anderson, 477 U.S. at 248-49. 45 Id. at 255. 26 46 27 47 28 48 Id. at 248-49. 42 U.S.C. § 12112(a). 42 U.S.C. § 12112(b)(5)(A). -7- 1 overcome those limitations.”49 As the en banc Ninth Circuit panel in Barnett explained, 2 this interactive process “is at the heart of the ADA’s process and essential to 3 accomplishing its goals. It is the primary vehicle for identifying and achieving effective 4 adjustments which allow disabled employees to continue working without placing an 5 ‘undue burden’ on employers.”50 6 The interactive process includes the following four steps: the employer must 7 (1) identify the essential functions of the employee’s position, (2) consult with the 8 employee to identify his or her specific limitations, (3) identify potential accommodations 9 and assess the effectiveness of each, and (4) implement the accommodation that is 10 “most appropriate for both the employee and the employer.”51 Employers must engage 11 in the interactive process in good faith. Where an employee accuses an employer of 12 failing to do so, as here, courts should attempt to isolate the cause of the breakdown in 13 the interactive process and assign responsibility.52 An employer is liable if it failed to 14 engage in the interactive process in good faith and a reasonable accommodation would 15 have been possible if it had acted differently.53 “[A]n employer cannot prevail at the 16 summary judgment stage if there is a genuine dispute as to whether the employer 17 engaged in good faith in the interactive process.”54 18 19 20 21 22 49 29 C.F.R. § 1630.2(o)(3). See also Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1111 (9th Cir. 2000), vacated on other grounds sub nom. U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). 23 50 24 51 25 52 26 Barnett, 228 F.3d at 1113. Id. at 1114 (quoting 29 C.F.R. Pt. 1630, App. § 1630.9). Barnett, 228 F.3d at 1115 (citing Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)). 27 53 28 54 Id. at 1116. Id. -8- 1 Dominick’s complaint alleges that Walmart failed to engage in the interactive 2 process in good faith,55 but the factual basis for this allegation is unclear.56 In her 3 opposition she mentions the general rules governing the interactive process but does 4 not respond directly to Walmart’s assertion that it met each of those requirements in 5 this case. In fact, Dominick concedes that the interactive process with Walmart 6 produced an appropriate reasonable accommodation: Walmart’s agreement that she 7 would work no closer than 134 feet to chemical toxins.57 Dominick is not challenging 8 the way in which Walmart engaged in the interactive process, but rather the actions of 9 her managers that violated the accommodation produced by that successful process.58 10 Because there is no genuine dispute that Walmart engaged in the interactive process 11 itself in good faith, which led to an effective reasonable accommodation, Walmart will 12 be granted summary judgment on this claim. 13 B. 14 Reasonable Accommodation Walmart spends several pages of its opening brief arguing that its denial of 15 Dominick’s second reasonable accommodation request was appropriate.59 Because 16 Dominick is not challenging that denial, this argument misses the mark. According to 17 Dominick’s opposition, her failure-to-accommodate claim involves three distinct 18 challenges: (1) to Walmart’s “refusal to engage with Ms. Dominick” (discussed above); 19 (2) to Walmart’s refusal to “abide by her approved accommodation at the store 20 management level;” and (3) to Walmart’s refusal “to accommodate Ms. Dominick with 21 22 55 23 56 24 57 25 26 Doc. 1 at 9 ¶ 76. Dominick baldly asserts that Walmart “refus[ed] to engage with” her. Doc. 35 at 6. Doc. 35 at 7-8. See also id. at 9 (“Once Plaintiff had an approved Accommodation from Wal-Mart, the failure to accommodate stemmed from the store managers’ refusal to abide by that Accommodation, causing Plaintiff to suffer bodily harm and miss work and lose pay.”) (emphasis in original). 27 58 28 59 Doc. 35 at 9; Doc. 36 at 10-11 ¶ 35. Doc. 30 at 11-14. -9- 1 light duty after her knee injury.”60 Because Dominick is not challenging Walmart’s 2 denial of her second reasonable accommodation request, nor could she because she 3 concedes that the approved accommodation is effective, Walmart’s argument lacks 4 merit. 5 Walmart is correct, however, that Dominick’s complaint does not allege that 6 Walmart is liable for refusing to grant her light duty work after her knee injury. The 7 court need not consider Dominick’s arguments related to this non-existent claim.61 8 C. 9 Discrimination and Retaliation ADA discrimination and retaliation claims are subject to the McDonnell Douglas 10 burden-shifting framework.62 Under that framework, the employee has the initial burden 11 of establishing a prima facie case of discrimination or retaliation. The employee does 12 so by establishing three elements: (1) he or she was engaged in protected activity; 13 (2) he or she suffered an adverse action; and (3) there was a causal link between the 14 two.63 If the employee can establish a prima facie case, the burden of production shifts 15 to the employer to present legitimate reasons for the adverse action. If the employer 16 does so, “the burden shifts back to the employee to demonstrate a triable issue of fact 17 as to whether such reasons are pretextual.”64 18 Dominick argues that she has established a prima facie case because her initial 19 reasonable accommodation request was a protected activity, for which she alleges that 20 Walmart retaliated against her by (1) assigning her work too close to the floor crews; 21 22 23 60 24 61 25 62 Doc. 35 at 6. See Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 574 (2007). Curley v. City of N. Las Vegas, 772 F.3d 629, 632 (9th Cir. 2014). 26 27 28 63 See T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015). 64 Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). -10- 1 (2) assigning her work where she was required to lift heavy items;65 and (3) placing her 2 on unpaid medical leave because she could not lift heavy items.66 Walmart does not 3 dispute that Dominick’s reasonable accommodation request was a protected activity, 4 but does dispute that Dominick has otherwise established a prima facie case. 5 Walmart first argues that Dominick’s work assignments were not “adverse 6 employment actions.” It cites two cases where courts found that an adverse action did 7 not occur because the employee’s new work assignment did not differ in any material 8 way from the old assignment.67 By drawing factual parallels to those cases, W almart is 9 apparently arguing, unpersuasively, that there is nothing materially different about work 10 assignments that cause its employees to suffer allergic reactions or render them unable 11 to do their jobs and those that do not. 12 Walmart’s next argument is that Dominick has not “identified any similarly 13 situated Associates who were not disabled and were treated more favorably, part of her 14 prima facie case.”68 Walmart cites no authority for the proposition that a showing of 15 disparate treatment of similarly situated employees is a necessary element of a prima 16 facie ADA retaliation case. 69 This argument lacks merit as well. 17 18 19 65 20 66 21 67 22 23 24 25 26 27 28 See Doc. 36-1 at 5 ¶ 26. Doc. 35 at 13-14. Doc. 37 at 8-9 (citing Sillars v. Nevada, 385 F. App’x 669, 671 (9th Cir. 2010) (“Sillars has presented no evidence that the position to which she was moved differed in any material way from the position she occupied prior to her complaints, either with respect to her responsibilities or the conditions under which she performed them.”); Scott v. City of Phoenix, No. CV-09-0875-PHX-JAT, 2011 WL 3159166, at *6 (D. Ariz. July 26, 2011) (“Scott has not provided any evidence that there was something objectively undesirable with the south side of the building and a work space near the other members of his auditing team.”). 68 Doc. 37 at 9. 69 But see Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (“A showing that the County treated similarly situated employees outside Vasquez’s protected class more favorably would be probative of pretext.”). -11- 1 Next, Walmart argues that Dominick cannot establish causation for her July 20 2 and July 30 assignments because Cruz could not have known that Dominick would be 3 working so close to the floor waxing crews on those dates. 70 Because this issue turns 4 on questions of disputed material fact,71 it cannot be resolved in Walmart’s favor at 5 summary judgment. 6 Finally, Walmart argues that, even if Dominick can establish a prima facie case, 7 she cannot establish that W almart’s reasons for assigning her inappropriate work were 8 pretextual.72 It contends that Dominick’s assignments were not retaliatory because they 9 were good faith attempts to honor her reasonable accommodation, and Dominick lacks 10 any evidence showing that she was singled out due to her accommodation request. 11 Dominick “cannot have it both ways,” Walmart argues, by demanding to be moved 12 away from the waxing and then complaining that her new work assignments were 13 retaliatory.73 14 This argument fails as well. Dominick has submitted evidence showing that 15 before she made her formal accommodation request Walmart was able to adequately 16 accommodate her disability by reassigning her to different locations in the store. She 17 has also submitted evidence showing that her current Walmart supervisors are able to 18 do the same. There remains a question of material fact whether Dominick’s 19 intermediate supervisors gave her inappropriate work assignments in retaliation for her 20 reasonable accommodation request. Summary judgment is inappropriate. 21 V. CONCLUSION 22 Based on the preceding discussion, Walmart’s motion at docket 30 is GRANTED 23 in part and DENIED in part as follows: summary judgment is granted in Walmart’s favor 24 25 70 Doc. 30 at 16. 26 71 27 72 28 73 See Doc. 36-1 at 4 ¶¶ 22-23. Doc. 37 at 10-11. Doc. 30 at 16-17. -12- 1 on Dominick’s claims that are based on its failure to engage in the interactive process in 2 good faith. In all other respects, Walmart’s motion is DENIED. 3 DATED this 28th day of June 2016. 4 5 /s/ JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13-

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