Durham v. Wal-Mart Inc
ORDER granting deft's 38 Motion for Summary Judgment and dismissing pltf's complaint with prejudice. Signed by Judge D. P. Marshall Jr. on 10/12/11. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WAL-MART STORES, INC.
Kim Durham claims that Wal-Mart violated the Americans with
Disabilities Act when it failed to grant her the reasonable accommodation she
requested-a meeting with her store manager.
1. The material facts are undisputed. Conseco Life Insurance Co. v.
Williams, 620 F.3d 902, 907 (8th Cir. 2010).
Durham suffers from
schizophrenia. Her condition frequently caused her to miss days or weeks of
work. So in late October 2009, Durham submitted a request for intermittent
leave under the Family Medical Leave Act. Because of her part-time status,
however, Durham was ineligible for FLMA leave. Instead, she had to apply
for a leave of absence under Wal-Mart's Personal Leave Policy. She began but
never finished the application process.
Durham quit coming to work in early November. Instead, she asked for
a meeting with store manager Sue Goss about the calculation of her hours and
her eligibility under the FMLA. Goss scheduled a meeting with Durham for
November 28th. Goss had to cancel that meeting and rescheduled it for
November 30th. Goss had to cancel that meeting too because she was
summoned to a meeting at another store; she had an assistant manager notify
Durham to come to work on her next scheduled day and just meet with Goss
at some point during the day. The canceled meetings caused Durham
emotional stress. Durham said that she "could not endure the stress of
coming into work and wondering what was going to happen[.]" Document No.
48, at 1. She therefore resigned on December 4th. She now claims that Wal
Mart violated the ADA by not accommodating her with a meeting with Goss
about hours worked and F1VILA eligibility.
2. A modified burden-shifting analysis governs Durham's claim.
Fenney v. Dakota, Minnesota & Eastern Railroad Co., 327 F.3d 707, 712 (8th Cir.
2003). She" must first make a facial showing that [she] has an ADA disability
and that [she] has suffered adverse employment action." Ibid. If she makes
that showing, "[t]hen [she] must make a facial showing that [she] is a
'qualified individual.'" Brannon v. Luco Mop Co., 521 F.3d 843, 848 (8th Cir.
2008). Wal-Mart does not dispute Durham's disability. It argues, however,
that she suffered no adverse employment action and was not a "qualified
individual" within the meaning of the ADA.
A resignation is usually not an adverse employment action. Fenney, 327
F.3d at 717. Durham's claim can survive, however, if she can show that Wal
Mart constructively discharged her. "A constructive discharge occurs when
an employer deliberately renders the employee's working conditions
intolerable and thus forces [her] to quit [her] job." Thompson v. Bi-State
Development Agency, 463 F.3d 821, 825 (8th Cir. 2006) (quotation omitted). In
Darby v. Bratch, the Eighth Circuit held that constructive discharge would not
be a viable argument for a plaintiff who resigned shortly after returning from
FMLA leave because she "had been back at work for only a short period of
time. We do not believe a reasonable trier of fact could have found that
[Darby] had stuck it out long enough to conclude reasonably that working
conditions were intolerable." 287 F.3d 673, 682 (8th Cir. 2002).
Here, Durham had not been back at work at all. She had been calling
in sick for almost a month. She could not reasonably have found her working
conditions intolerable because she was not working. Because Durham was
not constructively discharged, she suffered no adverse employment action,
and her ADA claim fails.
Durham cannot show that she was a "qualified individual" within the
meaning of the ADA either. Part of being a qualified individual is that the
employee can" perform the essential job functions, with or without reasonable
accommodation." Brannon, 521 F.3dat848 (quotation omitted). And "regular
attendance at work is an essential function of employment." Brannon, 521
F.3d at 849. The ADA does not require an employer" to provide an unlimited
absentee policy." Brannon, 521 F.3d at 849 (quotation omitted). Durham has
likewise failed to demonstrate that her requested accommodation, a meeting
with the store manager, "would have enabled her to have consistent
attendance at work. ... Therefore, she failed to make a facial showing that she
was a qualified individual[.]" Ibid.
3. Because Durham cannot make the threshold showings that she
suffered an adverse employment action and was a qualified individual, her
ADA claim fails as a matter of law.
Wal-Mart's motion for summary
judgment as supplemented, Document Nos. 38 & 68, is granted. Durham's
complaint is dismissed with prejudice.
D.P. Marshall Jr.
United States District Judge
12 October 2011
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