Berard v. Wal-Mart Stores Inc.

Filing 42

ORDER ATTACHED granting in part and denying in part 30 Motion for Summary Judgment. Signed by Judge Richard A. Lazzara on 10/4/2011. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

HEATHER BERARD,
Plaintiff,
v.

CASE NO: 8:10-cv-2221-T-26MAP

WAL-MART STORES EAST, L.P.,
Defendant.
/

ORDER
Before the Court is Defendant’s Motion for Summary Judgment (Dkt. 30),
Defendant’s Statement of Undisputed Facts (Dkt. 31), and various exhibits, affidavits and
depositions in support of the motion (Dkts. 32, 33 & 34), and Plaintiff’s Response in
Opposition with depositions and attachments, together with a Statement of Disputed
Facts. (Dkts. 40 & 41). After careful consideration of the motion, the submissions of the
parties, and the entire file, the Court concludes that the motion should be denied in part
and granted in part.

Background
Plaintiff Heather Berard, an employee of Wal-Mart Stores East, L.P. (Wal-Mart),1
suffered a diabetic event on March 10, 2010, during her shift in the meat department. She
began vomiting and had a seizure, and was dragged into the meat cooler.2 Someone went
to her locker, retrieved the insulin, and brought it to Plaintiff.3 Plaintiff administered the
loaded syringe to herself, but she was rushed to the emergency room.4 She never returned
to work for Wal-Mart.5 Plaintiff brings this suit pursuant to the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), the Florida Civil Rights Act
of 1992, Chapter 760, Florida Statutes (FCRA), and two state common law claims,
negligent and intentional infliction of emotional distress.6 The following facts are
presented in the light most favorable to the non-moving party, Plaintiff, as is required for

1

Defendant avers that Wal-Mart Stores East, L.P. is a wholly-owned subsidiary
of Wal-Mart Stores, Inc., “the ultimate parent corporation,” and as such, Wal-Mart Stores
East, L.P. is the proper party Defendant. See docket 33-2, Affidavit of Geoffrey W.
Edwards, Esq.
2

See docket 40, Exh. A, Deposition of Heather Berard, pp. 68-71.

3

See docket 40, Exh. A, Depo. of Berard, pp.71-72.

4

See docket 40, Exh. A, Depo. of Berard, pp. 71-72, 76.

5

See docket 40, Exh. A, Depo. of Berard, p. 79.

6

The Court notes, however, that the Disabilities Act Amendment Act of 2008
(the ADAAA) appears to apply to this case because the alleged discrimination took place
at the very least in November 2009, which is the time Plaintiff was employed by WalMart. See, e.g., Kintz v. United Parcel Serv., Inc., 766 F.Supp.2d 1245 (M.D. Ala. 2011).
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summary judgment purposes. See Arrington v. Cobb County, 139 F.3d 865, 871 (11 th Cir.
1998); Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11 th Cir. 1997).
Pertinent Facts
Plaintiff Heather Berard was employed by Defendant Wal-Mart from November 4,
2009, until March 10, 2010. Over one year prior to her employment, Plaintiff was
diagnosed with new onset Type I diabetes when she was hospitalized in August 2008.7
During most of Plaintiff’s employment with Wal-Mart, she was permitted to keep her
testing and maintenance equipment for her diabetic condition on a desk near the meat
department where she worked.8 Her supervisor John Holmes had always permitted her to
keep her needles, insulin, and tester in her purse near where she worked.9 Sometime in
February 2010, about two or three weeks prior to her last day at work with Wal-Mart,
however, she was told by a manager that she could no longer keep her diabetic equipment
on the desk.10 She then moved her belongings to the coat closet in the meat department
which was about a foot and a half behind the desk.11 One night her belongings were
locked in that coat closet, and she had to have the lock cut open.12
7

See docket 34-4, deposition of Anthony D. Morrison, M.D., pp. 9-11.

8

See docket 40, Exh. A, Deposition of Heather Berard, p. 57.

9

See docket 40, Exh. A, Depo. of Berard, pp. 56-57, 61-62.

10

See docket 40, Exh. A, Depo. of Berard, pp. 59-60, 63.

11

See docket 40, Exh. A, Depo. of Berard, p. 57.

12

See docket 40, Exh. A, Depo. of Berard, p. 60.
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She then started placing her medical supplies in the drawer in the desk she
originally used for her purse.13 At that time, she was told by Wendy Mincheff, an
assistant manager, that she had to put her testing kit and insulin in the back of the store in
a locker and that she would be terminated if she left during her work hours to go back to
the locker.14 Plaintiff objected to this new requirement because the location of the desk
and coat closet was significantly cooler and closer than the back of the store where the
lockers where located.15 Plaintiff contended that she needed to keep the insulin at a
cooler location than the back where it was not sufficiently cooled by air-conditioning.16
She was told that the refrigerator was cleaned out at 9:00 p.m. every night and her shift
did not end until 10:00 p.m.; therefore, her testing and treatment supplies would be
thrown out before her shift was over.17 She also testified that she tested her blood sugar
often and needed her equipment closer to her than the back of the store where the lockers
were located.18
13

See docket 40, Exh. A, Depo. of Berard, p. 61.

14

See docket 40, Exh. A, Depo. of Berard, pp. 63, 66.

15

See docket 40, Exh. A, Depo. of Berard, pp. 52, 66.

16

See docket 40, Exh. A, Depo. of Berard, pp. 52-53.

17

See docket 40, Exh. A, Depo. of Berard, p. 53.

18

See docket 40, Exh. A, Depo. of Berard, pp. 66, 73. The Court is well aware
that Wendy Mincheff’s testimony is contradictory to Plaintiff’s testimony. For instance,
Mincheff claims that she never told Plaintiff that she had to move her medicine and
testing kits, and Plaintiff never mentioned needing an accommodation for her medicine
and testing kit. See docket 34-6, Depo. of Wendy Mincheff. Matters of witness
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With respect to Plaintiff’s responses to questions asked about whether there was
any essential function or physical activity of her job she could not perform, she responded
that she could perform all of the essential functions and physical activities of the position
of meat sales associate.19 The essential functions of the job of meat sales associate
include providing customer service, maintaining merchandise presentation, maintaining
specific areas, receiving and stocking merchandise, following company policies, and
providing meat products to customers.20 The listed physical activities required of a meat
sales associate entail the following: visually locating merchandise; reading small print;
reaching overhead and below the knees with bending, twisting, pulling, and stooping;
observing associate behavior; moving, lifting and carrying supplies weighing less than
twenty-five pounds; moving up and down a ladder; and grasping, turning and
manipulating objects requiring fine motor skills.21
Standard of Review
Summary judgment is proper only when “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). The facts must be viewed, and all reasonable inferences

credibility, however, may not be considered at the summary judgment stage, and the
parties are in the best position to attempt to predict their chances at trial.
19

See docket 34-1, 34-2, Depo. of Berard, pp. 41-43, Exhs. 4 & 5.

20

See docket 34-2, Depo. of Berard, Exh. 5.

21

See docket 34-2, Depo. of Berard, Exh. 5.
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drawn, in the light most favorable to the non-moving party. See Anderson v. Liberty
Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986); Matsushita
Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348,
1356, 89 L.Ed.2d 538 (1986). Credibility determinations, however, are best addressed at
trial. Anderson, 477 U.S. at 255, 106 S.Ct. at 1513-14.
Plaintiff’s Disability
To show a prima facie case of discrimination based on the failure to accommodate,
Plaintiff must show three elements: (1) that she has a disability; (2) that she is a “qualified
individual” such that she could perform the essential functions of her position with or
without accommodation; and (3) that she was discriminated against because of her
disability. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11 th Cir. 2001). For
purposes of this summary judgment, Defendant Wal-Mart concedes that Plaintiff’s
diabetes is a disability as defined under the ADA, and thus meets the first prong of a

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prima facie case.22 Wal-Mart does not concede, however, that Plaintiff can show the
second and third prongs of a prima facie case.
Reasonable Accommodation
Wal-Mart focuses on the second prong— that Plaintiff could perform the essential
functions of a meat department associate with or without accommodation. Specifically,
Wal-Mart contends that Plaintiff could perform the essential functions of her job without
accommodation because there was no essential function of her job that she could not
perform due to her diabetes. Essentially, Wal-Mart argues that there was no need for a

22

The Court notes that under 42 U.S.C. § 12102(2), a “disability” is defined, for
purposes of this case under the first of three definitions, as an individual with “a physical
. . . impairment that substantially limits one or more of the major life activities of such
individual.” 42 U.S.C. § 12102(2)(A). Under the old, pre-2008 amendment standard,
determining whether a particular physical impairment is sufficient to establish a disability
looked to the “mitigating measures . . . in judging whether an individual possesses a
disability.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 565, 119 S.Ct. 2162, 2169,
(1999) (reversing summary judgment, holding that amblyopia is not necessarily a
disability for each individual afflicted by it, citing Sutton v. United Air Lines, Inc., 527
U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)). Under the new standard of the
Americans with Disabilities Amendments Act of 2008 (ADAAA), “[t]he determination of
whether an impairment substantially limits a major life activity shall be made without
regard to the ameliorative effects of mitigating measures such as . . . medication, medical
supplies, equipment, or appliances.” 42 U.S.C. § 12102(4)(E)(i)(I), which became
effective January 1, 2009. By the ADAAA’s adoption, “Congress has expressly
instructed courts that ‘[t]he definition of disability in [the ADA] shall be construed in
favor of broad coverage of individuals.’” Fikes v. Wal-Mart, Inc., 322 Fed.Appx. 882 n.
1 (11th Cir. 2009) (unpublished opinion) (refraining from applying ADAAA because
ADA “was in effect at the time of the alleged discrimination”); Kintz v. United Parcel
Serv., Inc., 766 F.SUPP.2d 1245, 1253 (M.D. Ala. 2011) (noting Sutton’s inapplicability
to cases under the ADAAA). In this case, there is no question that Plaintiff did not even
work for Wal-Mart until November 2009, long after the effective date of the ADAAA.
Thus, the ADAAA would apply to Plaintiff.
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reasonable accommodation because there is no issue regarding an accommodation at all.
In other words, to determine whether an individual is “qualified,” before even reaching
the issue of whether any reasonable accommodation can enable the individual to perform
the essential functions of the job, it must be determined whether the individual can
perform the essential functions of the job. Here, Wal-Mart takes the position that because
Plaintiff testified that she could perform all of the essential functions of her job, the issue
of reasonable accommodations should never be reached. To support its position, WalMart cites Grabow v. Independent School Dist. No. I-008, 86 F.3d 1166, 1996 WL
282166 (10th Cir. 1996) (unpublished opinion) (table), Chandler v. City of Dallas, 2 F.3d
1385, 1393-94 (5th Cir. 1993), cert. denied, 511 U.S. 1011, 114, S.Ct. 1386, 128 L.Ed.2d
61 (1994), and Novella v. Wal-Mart Stores, Inc., 226 Fed.Appx. 901, 903 (11 th Cir. 2007)
(unpublished opinion).
While Wal-Mart’s argument is legally sound, it assumes that Plaintiff is able to
control her sugar levels on the job through testing and administration of slow and fastacting insulin. In this particular case, Plaintiff had been granted ready access to her
equipment until a particular point in time a couple of weeks before the diabetic incident.
Thus, Plaintiff reached a point where she could not perform the essential requirements of
her job if she did not have ready access to her equipment, or, at least, if you accept
Plaintiff’s version of the facts, that is the case. Thus, a genuine issue of fact exists as to
whether Plaintiff was a qualified individual with a disability.

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Wal-Mart next argues that even assuming Wal-Mart did have a duty to provide a
reasonable accommodation, Plaintiff cannot prove discrimination for failure to permit her
to keep her insulin and testing materials in the meat department as opposed to the back of
the store in a locker. To resolve the issues at hand, the medical testimony and records
must be considered. The medical evidence consists of three depositions with medical
records attached as exhibits: (1) Dr. Anthony Morrison, an endocrinologist practicing at
USF; (2) Nancy Groves, his ARNP23 who treats diabetic patients, and (3) Linda
Hubsmith, another ARNP from a different physician’s group, who had been treating
Plaintiff before the onset of diabetes. A review of the dates of office visits suggests that
Plaintiff was treated by all three from the time of her first hospitalization in August 2008
through March 2010. Based on the medical testimony, it is apparent that individuals with
Type I diabetes suffer with bouts of both high and low blood sugar.24 Diabetic
ketoacidosis (DKA) may occur with high blood sugar, and a diabetic seizure may occur
with low blood sugar.25 Although Dr. Morrison opined that Plaintiff probably suffered
from DKA in August 2008,26 the hospital records from Plaintiff’s first hospitalization are

23

Advanced Registered Nurse Practitioner.

24

See docket 34-4, depo. of Dr. Morrison, pp. 18-20.

25

See docket 34-4, depo. of Dr. Morrison, pp. 18-21.

26

See docket 34-4, depo. of Dr. Morrison, pp. 20 & 48-49.
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not a part of the record.27 The hospital records do show that Plaintiff suffered from DKA
on March 10, 2010;28 yet, there remains evidence that Plaintiff suffered seizure-like
symptoms at Wal-Mart on that day.
A review of the medical testimony reveals conflicts regarding the needed
proximity of Plaintiff’s testing and medical equipment.29 Based on these genuine issues
of fact concerning the failure to provide reasonable accommodation, the Court finds
summary judgment inappropriate.
Constructive Discharge
To prove a constructive discharge, the Plaintiff must show that the employer
“imposes working conditions that are so intolerable that a reasonable person in [the
employee’s] position would have been compelled to resign.” Fitz v. Pugmire LincolnMercury, Inc., 348 F.3d 974, 977 (11th Cir. 2003) (quoting Poole v. Country Club of
Columbus, Inc., 129 F.3d 551, 553 (11th Cir. 1997)). Although Wal-Mart argues that the
facts do not rise to the level of egregiousness required for constructive discharge, viewed
in the light most favorable to Plaintiff, a jury could find that requiring a diabetic such as

27

Hospital records show that she was hospitalized in January 2010 for DKA. See
docket 34-2.
28

See docket 32-2, Exh. B.

29

While for purposes of summary judgment the Court must accept that Plaintiff
requested an accommodation, the record shows that this issue is contested and denied by
Wal-Mart, and at trial, it is very conceivable that a jury may find that Plaintiff never
requested accommodation at all.
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Plaintiff to keep her testing kit and insulin in a locker in the back of the poorly-cooled
store, and threatening termination if she goes to the locker during her shift, constitutes
constructive discharge.30
Negligent and Intentional Infliction of Emotional Distress
Florida has a long history of invoking the “impact rule” for the tort of negligent
infliction of emotional distress. R.J. v. Humana of Florida, Inc., 652 So.2d 360 (Fla.
1995) (citing its origin in International Ocean Tel. Co. v. Saunders, 32 Fla. 434, 14 So.
148 (1893)). In this case, the impact rule precludes recovery for negligent infliction of
emotional distress because Berard cannot show that her emotional distress flowed from
physical injuries “sustained in an impact.” R.J., 652 So. 2d at 362.31 The record is clear
that she suffered no physical injuries stemming from a physical impact. Plaintiff suffered
a diabetic event and her co-workers moved her to a safer place away from on-lookers.
She was not otherwise injured in the move.
Characterized as an exception to the impact rule, intentional infliction of emotional
distress may be actionable where the conduct causing the emotional distress is
30

Accord Countryman v. Nordstrom, Inc., 2007 WL 38912, * 6 (D. Minn. Jan. 5,
2007) (discussing that “a reasonable person could conclude that restricting the ability of a
newly diagnosed diabetic to take frequent breaks to test her blood sugar and prevent or
treat insulin attacks which could result in serious health problems, constitutes intolerable
working conditions.”).
31

See also Rivers v. Grimsley Oil Co., Inc., 842 So.2d 975 (Fla.Dist.Ct.App.
2003) (holding that employee cannot recover from employer for psychological condition
suffered as a result of robbery at place of employment; side effects from medication do
not constitute physical injury under impact rule).
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outrageous. R.J., 652 So.2d at 363 (citing Eastern Airlines, Inc. v. King, 557 So.2d 574
(Fla. 1990)). The conduct must have been “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in a civilized community.” R.J., 652 So.2d at 363 n. 2 (quoting
from §46 of the Restatement (Second) of Torts (1965)). First, the record is devoid of any
malevolent intent on the part of the people who moved her to injure her or subject her to
ridicule, and second, even if Wal-Mart did intentionally refuse her the ability to obtain
quick access to her supplies, such conduct does not amount to the outrageousness
required by law. See Golden v. Complete Holdings, Inc., 818 F.SUPP. 1495, 1499 (M.D.
Fla. 1993); Gillis v. Sports Auth., Inc., 123 F.Supp.2d 611 (S.D. Fla. 2000). This record
is devoid of any harassment. Accordingly, summary judgment is granted as to both
negligent and intentional infliction of emotional distress.
It is therefore ORDERED AND ADJUDGED that Defendant’s Motion for
Summary Judgment (Dkt. 30) is DENIED in part and GRANTED in part. Summary
judgment is granted as to Counts II and III for negligent and intentional infliction of
emotional distress. The case will proceed as to Count I only.
DONE AND ORDERED at Tampa, Florida, on October 4, 2011.

s/Richard A. Lazzara
RICHARD A. LAZZARA
UNITED STATES DISTRICT JUDGE

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COPIES FURNISHED TO:

Counsel of Record

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