FARNHAM v. WALMART STORES EAST LP

Filing 54

ORDER ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT denying 42 Motion for Summary Judgment By JUDGE JON D. LEVY. (nwd)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARKIE L. FARNHAM
Plaintiff,
v.
WALMART STORES EAST, L.P.
Defendant.

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) Case No. 1:13-cv-305-JDL
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ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This case involves a complaint brought by Markie Farnham against Walmart
Stores East, L.P. under the Maine Human Rights Act (“MHRA”), 5 M.R.S. § 4551 et.
seq., which Walmart removed to this Court. ECF No. 1; ECF No. 1-1. Farnham’s
complaint advances two theories of disability discrimination against Walmart:
specifically, that after she suffered a workplace injury, Walmart failed to reasonably
accommodate her injury and then wrongfully terminated her employment because of
the injury. ECF No. 1-1 at 2. Walmart has moved for summary judgment under both
theories. ECF No. 42. I deny the motion.
II. EVIDENTIARY CONSIDERATIONS
Before addressing the disputed and undisputed material facts for the purposes
of summary judgment, it is necessary to settle an evidentiary dispute between the
parties.1 The issue concerns a conversation Farnham had with a supervisor, Chad

The parties’ statements of material fact contain numerous evidentiary objections, not all of which
require detailed resolution. To the extent that any of the other facts that I find for the purpose of
summary judgment are the subject of an objection, I resolve the objection in favor of admission.
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Tozier, about Farnham’s use of prescription pain medication. ECF No. 47 at 17; ECF
No. 49 at 18. Farnham contends that “Tozier asked [her] whether she had taken the
[prescribed] doses too close together, and she told him that it was possible that she
could have taken [two] pills too close together, although her doctor had okayed her
taking more medication if she needed it during the day.” ECF No. 47 at 17. Walmart
seeks to exclude this statement from the summary judgment record, arguing that
Farnham’s report to Tozier about what her doctor told her is inadmissible hearsay.
ECF No. 49 at 18.
Hearsay is an out of court statement offered to prove the truth of the matter
asserted. Fed. R. Evid. 801(c). Here, Farnham’s statement is not offered for the truth
of whether Farnham’s doctor in fact indicated that it was acceptable for her to closely
dose her pain medication. Rather, the statement is offered to prove that Walmart
was aware that Farnham claimed she was taking her medication in accordance with
her doctor’s orders when it terminated her under its Alcohol and Drug Free
Workplace Policy.

Because Walmart’s policy requires the termination of any

employee who fails to follow the prescribed instructions for using a drug, see ECF No.
43 at 14; ECF No. 47 at 9, Tozier’s knowledge that Farnham claimed that she was
instructed by her doctor to take more medication if she needed it during the day, even
if that awareness was based on an incorrect statement by Farnham, is relevant to the
circumstances of Farnham’s termination. Accordingly, I admit Farnham’s statement
into the summary judgment facts for that specific purpose.

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III. FACTUAL BACKGROUND
The summary judgment record, viewed in the light most favorable to Farnham
as the non-moving party, reveals the following facts.
A.

Farnham’s Employment at Walmart
Farnham was employed as a pharmacy technician at Walmart’s store in Calais

from December 2003 until January 19, 2012. ECF No. 43 at 1; ECF No. 47 at 1. As
a pharmacy technician, Farnham was licensed by the Maine Board of Pharmacy and
required to adhere to the Board’s rules of professional conduct. ECF No. 43 at 2; ECF
No. 47 at 1.
B.

Farnham’s Injury and Subsequent Treatment
On January 14, 2011, Farnham suffered a slip and fall while on duty at

Walmart, injuring her hip. ECF No. 43 at 3; ECF No. 47 at 2. The injury led to
Farnham filing a successful workers’ compensation claim. Id. During this period,
Farnham sought treatment from various doctors, including family practitioner Dr.
Larry Newman and orthopedic specialist Dr. Stephen Kelly. ECF No. 43 at 3; ECF
No. 47 at 2.
After her injury, Farnham made a written request for a workplace
accommodation to personnel manager Tracy Gardner, asking to be given longer and
more frequent breaks to accommodate her discomfort. ECF No. 43 at 3; ECF No. 47
at 2. Farnham also made a second written request to Gardner, asking that she be
permitted to sit down during certain periods at work. ECF No. 43 at 4; ECF No. 47
at 2. Both requests were granted. Id.

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In May 2011, Dr. Newman completed a Maine Workers’ Compensation Board
practitioner’s report (“M1 Form”) in which he noted that Farnham could return to her
full work capacity with no restrictions. ECF No. 43 at 4; ECF No. 47 at 2. However,
Farnham continued to take prescription pain medications. ECF No. 47 at 16-17; ECF
No. 49 at 17-18.
C.

Farnham’s Request for a Workplace Evaluation
In November 2011, Farnham had Drs. Kelly and Newman complete two

additional M1 Forms. ECF No. 43 at 4-5; ECF No. 47 at 3. In his M1 Form, from a
November 7 visit, Dr. Kelly recommended that Farnham have a workplace ergonomic
evaluation, make frequent position changes to manage her pain, and conduct activity
as her pain would tolerate. Id. In his M1 Form, from a November 9 visit, Dr. Newman
stated: “Per recommendation of Orthopedics, Portland: Get worksite evaluation,
frequent position changes to prevent stiffness, activity as tolerated [with] pain.” Id.
The purpose of the proposed workplace evaluations was to explore ways in which
Farnham’s work station could be arranged in order to reduce the hip pain she
experienced on the job. ECF No. 47 at 12; ECF No. 49 at 8-9.
Walmart has an “Accommodation in Employment” policy which requires
employees

requesting

disability

accommodations

to

submit

“Request

for

Accommodation” forms before accommodations are granted. ECF No. 43 at 2, ECF
No. 47 at 7. Farnham did not complete such a formal written request. ECF No. 43
at 12; ECF No. 47 at 7-8. However, in November, Farnham gave the M1 Forms from
Drs. Newman and Kelly to Tracy Gardner, her personnel manager. ECF No. 47 at

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11; ECF No. 49 at 4-5. Farnham also spoke multiple times to her direct supervisor,
Amanda Craig, informing Craig that her doctors had recommended workplace
evaluations. Id.
During this time, Farnham spoke with the staff at the Calais Regional Hospital
Rehabilitation Department about scheduling a potential worksite evaluation, who
recommended that the workplace evaluation take place inside the pharmacy at the
Calais Walmart.

ECF No. 43 at 6; ECF No. 47 at 4.

Farnham relayed this

information to Craig. Id. Craig spoke with District Manager Chad Tozier, who told
Craig that the evaluation would have to take place with the evaluator positioned
outside the pharmacy window while observing Farnham working inside the
pharmacy. ECF No. 43 at 7; ECF No. 47 at 4. Accordingly, Craig told Farnham that
Walmart would permit the evaluation only if the evaluator was positioned outside
the pharmacy window while observing Farnham working. Id. Walmart’s refusal to
allow the evaluator to come behind the pharmacy counter arose out of concerns about
potential violations of HIPAA requirements and Walmart’s Pharmacy Security Policy
that could result from having a third-party in an area with private patient
information. Id.
After hearing from Craig, Farnham informed staff at the Calais Regional
Hospital about the proposed restriction and was told that the evaluation had to be
conducted from behind the pharmacy counter in order for the evaluator to watch
Farnham perform her job duties closely. ECF No. 47 at 11; ECF No. 49 at 5-6.
Farnham reported this information to Craig and also told Craig that anyone who

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conducted the evaluation would be HIPAA trained. ECF No. 47 at 11; ECF No. 49 at
6-7. Craig told Farnham that she would discuss the request further with higher-level
management. Id. Farnham did not hear back from Craig or anyone else at Walmart
about scheduling the evaluation. Id.
D.

Farnham’s Termination
On December 30, 2011, Farnham worked in the pharmacy with a visiting

pharmacist, Ryan Frost. ECF No. 43 at 13; ECF No. 47 at 8. Frost reported to Tozier
and Craig that Farnham had asked him to refill her pain medication prescription
before it was due to be refilled, which he declined to do. Id. Farnham claims that
Frost refused her request to speak with Dr. Newman about the prescription refill,
and that she did not witness Frost speak with Dr. Newman that day. ECF No. 47 at
14; ECF No. 49 at 11-12. Frost, however, reported to Walmart that he did, in fact,
speak with Dr. Newman and was told not to refill the prescription early. ECF No. 43
at 13; ECF No. 47 at 8-9. Frost characterized the incident to Tozier as Farnham
exhibiting drug-seeking behavior. ECF No. 43 at 13; ECF No. 47 at 8.
On January 5, 2012, Farnham worked a shift with Amanda Craig. ECF No.
43 at 13-14; ECF No. 47 at 9. At the end of her shift, Craig sent an e-mail to Tozier
in which she reported that Farnham had appeared to be moving slowly and slurring
her speech at work. Id. Following this e-mail, on January 6, Farnham was asked to
participate in a meeting with Walmart managers, which Tozier joined by phone, to
discuss her prescription medication usage. ECF No. 43 at 14; ECF No. 47 at 9.
Farnham told Tozier that she did not take more than the amount of medication she

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was prescribed and that she did not feel impaired at work. ECF No. 47 at 17; ECF
No. 49 at 18. She did admit that it was possible that she could have taken two pills
too closely together, although she noted that her doctor had told her it was alright to
do so. Id. However, regardless of what Farnham told Tozier during the January 6
meeting, Tozier documented that Farnham had admitted to feeling slightly impaired
and taking more medication than she was prescribed. ECF No. 43 at 14; ECF No. 47
at 9.
Following Farnham’s conversation with Tozier, Farnham was suspended
without pay on January 6. ECF No. 43 at 14; ECF No. 47 at 9. Walmart has an
Alcohol and Drug Free Workplace Policy that requires the termination of any
employee who exceeds a prescribed dose or fails to follow the prescribed instructions
for using a prescription medication.

Id.

On January 19, 2012, Farnham’s

employment was terminated based on this policy. ECF No. 43 at 15; ECF No. 47 at
9.
IV. SUMMARY JUDGMENT STANDARD
A.

Federal Rule of Civil Procedure 56
Summary judgment is appropriate only if “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); see Ahmed v. Johnson, 752 F.3d 490, 495 (1st
Cir. 2014). In making that determination, a court must view the evidence in the light
most favorable to the non-moving party. Johnson v. University of Puerto Rico, 714
F.3d 48, 52 (1st Cir. 2013). “[A] judge’s function at summary judgment is not to weigh
the evidence and determine the truth of the matter but to determine whether there
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is a genuine issue for trial.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (citations
and quotations omitted).
B.

Local Rule 56
Local Rule 56 defines the evidence that this court may consider in deciding

whether genuine issues of material fact exist for purposes of summary judgment.
First, the moving party must file a statement of material facts that it claims are not
in dispute, with each fact presented in a numbered paragraph and supported by a
specific citation to the record. See Loc. R. 56(b).
Second, the non-moving party must submit its own short and concise
statement of material facts in which it admits, denies, or qualifies the facts alleged
by the moving party, making sure to reference each numbered paragraph of the
moving party’s statement and to support each denial or qualification with a specific
citation to the record. Loc. R. 56(c). The non-moving party may also include its own
additional statement of facts that it contends are not in dispute. Id. These additional
facts must also be presented in a numbered paragraph and be supported by a specific
citation to the record. Id.
Third, the moving party must then submit a reply statement of material facts
in which it admits, denies, or qualifies the non-moving party’s additional facts, if any.
Loc. R. 56(d). The reply statement must reference each numbered paragraph of the
non-moving party’s statement of additional facts and each denial or qualification
must be supported by a specific citation to the record. Id.

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The court may disregard any statement of fact that is not supported by a
specific citation to the record, Loc. R. 56(f), and the court has “no independent duty
to search or consider any part of the record not specifically referenced in the parties’
separate statement of fact.” Id.; see also, e.g., Borges ex rel. S.M.B.W. v. SerranoIsern, 605 F.3d 1, 5 (1st Cir. 2010); Fed. R. Civ. P. 56(e)(2). Properly supported facts
that are contained in a statement of material or additional facts are deemed admitted
unless properly controverted. Loc. R. 56(f).
V. LEGAL ANALYSIS
The Maine Human Rights Act makes it unlawful for an employer to
discriminate against a qualified individual on the basis of physical disability. See 5
M.R.S. § 4572. Farnham is proceeding under two separate theories of unlawful
discrimination: First, that Walmart discriminated against her by failing to
reasonably accommodate her disability. Second, that Walmart discriminated against
her by terminating her employment because of her disability. ECF No. 1-1 at 2.
Walmart seeks summary judgment on each claim. ECF No. 42 at 1.
A.

Disability Discrimination Based on a Failure to Accommodate
In order to make a claim for failure to accommodate, Farnham must

demonstrate that: (1) she is a qualified individual with a disability within the
meaning of the MHRA; (2) she works (or worked) for an employer covered by the
statute; (3) the employer, despite knowledge of her limitations, failed to reasonably
accommodate those limitations; and (4) the employer’s failure to do so affected the
terms, conditions, or privileges of her employment. See Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999). Walmart does not suggest an
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absence of evidence as to the first, second, and fourth elements of Farnham’s case.
See ECF No. 42 at 7-15.

Accordingly, my analysis centers on the third factor

identified in Higgins: whether Walmart knowingly failed to provide Farnham with a
reasonable accommodation.
In order to establish that her employer had knowledge of her limitations,
Farnham must show that she made a “sufficiently direct and specific” request for
accommodation that “explain[ed] how the accommodation requested [was] linked to
some disability.” Freadman v. Metropolitan Prop. and Cas. Ins. Co., 484 F.3d 91, 102
(1st Cir. 2007) (quoting Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir.
2001)). The law “does not provide that a request cannot be conveyed verbally or that
an employer cannot be found to have denied a request that is never formally
submitted in writing.” See Venable v. T-Mobile USA, Inc., 2008 WL 4937810, *10 (D.
Me. Nov. 14, 2008). Whether or not an employee’s action constitutes a sufficiently
direct and specific request for accommodation that is linked to some disability is a
question of fact. See Freadman, 484 F.3d at 103-104.
Turning to reasonability, the plaintiff carries the burden of proposing an
accommodation that is “at least on the face of things, reasonable.” Kvorjak v. Maine,
259 F.3d 48, 55 (1st Cir. 2001). Once a plaintiff has done so, an employer has the
opportunity to defeat liability by showing that an accommodation would impose an
undue hardship. See Carmichael v. Verso Paper, LLC, 679 F.Supp.2d 109, 129 (D.
Me. 2010).

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Here, Farnham did not complete Walmart’s designated “Request for
Accommodation” form. ECF No. 43 at 12; ECF No. 47 at 7-8. However, Farnham
submitted copies of the M1 Forms from Drs. Kelly and Newman to Tracy Gardner,
Walmart’s personnel manager, ECF No. 47 at 11; ECF No. 49 at 4-5, in which both
doctors indicated the need for a worksite evaluation to prevent or reduce the stiffness
and pain Farnham experienced as a result of her hip injury, ECF No. 43 at 4-5; ECF
No. 47 at 3. In addition to giving these forms to Tracy Gardner, Farnham spoke
several times with her direct supervisor, Amanda Craig, about her need for a worksite
evaluation. ECF No. 47 at 11; ECF No. 49 at 4-5. I conclude that this evidentiary
foundation would permit a reasonable jury to find that Farnham made a sufficiently
direct and specific request for accommodation that was linked to her disability. See
Carmichael, 679 F.Supp. at 133 (D. Me. 2010) (finding that request for
accommodation was sufficiently direct and specific when plaintiff produced two M1
Forms listing his work restrictions and “specifically complained” to management.).
Walmart contends, however, that even if Farnham made a legally sufficient
request for accommodation, summary judgment is warranted on the question of
whether Farnham’s request for accommodation was reasonable. ECF No. 48 at 2-3.
I conclude that summary judgment is inappropriate on this basis for several reasons.
First, Farnham’s request for accommodation was not unreasonable as a matter
of law. Walmart argues that the request was per se unreasonable because it would
have violated Federal law. ECF No. 42 at 13. However, the summary judgment
record does not establish that the request to have an employee from Calais Regional

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Hospital conduct an in-person workplace evaluation of Farnham at the pharmacy
would have led to a HIPAA violation. See ECF No. 43 at 7 (“[h]aving third parties
inside the pharmacy . . . raises concerns about . . . potential HIPAA violations.”)
(emphasis added).
Second, whether Farnham’s request for accommodation was reasonable is a
question of disputed fact for a jury to resolve. Walmart suggests that, on the basis of
the summary judgment record, no reasonable jury could conclude that it was
reasonable for Farnham to ask that a Calais Regional Hospital employee conduct an
in-person workplace evaluation from behind the pharmacy counter. See ECF No. 42
at 10. However, viewing the facts in the light most favorable to Farnham, the
summary judgment record reveals that under some circumstances, Walmart allowed
third parties behind the pharmacy counter, ECF No. 47 at 12-3; ECF No. 49 at 9; any
employee of Calais Regional Hospital who would have conducted Farnham’s
evaluation would have been HIPAA-trained, ECF No. 47 at 13; ECF No. 49 at 9; there
are ways to protect the privacy of patient data, ECF No. 47 at 11-12; ECF No. 49 at
7; and this type of evaluation may have been permitted by the Maine Board of
Pharmacy Rules, ECF No. 43 at 8; ECF No. 47 at 4.
Walmart does have a policy that places restrictions on who may enter a
Walmart pharmacy. ECF No. 43 at 7; ECF No. 47 at 4. However, there appears to
be a genuine dispute as to whether the policy gives management discretion as to who
to allow into the pharmacy. ECF No. 43 at 8; ECF No. 47 at 4. Even if there were no
genuine disputes of fact on this point, whether or not it was reasonable for Farnham

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to ask that a workplace evaluator be allowed in the pharmacy, in light of Walmart’s
policy, is a question for a jury to determine.
Lastly, Walmart’s insistence that it offered Farnham a reasonable alternative
accommodation does not dispose of this matter on summary judgment. Walmart
relies on 5 M.R.S. § 4613(2)(B)(8)(b), which precludes an award of damages against a
defendant to a reasonable accommodation claim who “demonstrates good faith efforts,
in consultation with the person with the disability who has informed the covered
entity that accommodation is needed, to identify and make a reasonable
accommodation[.]” This provision “provides an employer with an affirmative defense
to a disability discrimination claim regarding a failure to accommodate pursuant to
the MHRA.” Kezer v. Central Maine Med. Ctr., 2012 ME 54, ¶ 27, 40 A.3d 955.
Just as a jury must determine the reasonableness of Farnham’s request, see
supra, a jury must also determine the reasonableness of Walmart’s alternate proposal
to conduct the evaluation from outside of the pharmacy area. On this issue, the
summary judgment record indicates that Kris Mesman, the Director of Rehabilitation
at Calais Regional Hospital, wrote a letter indicating to Walmart that it would be
impossible to complete a full workplace evaluation without an evaluator having
access to the pharmacy area. ECF No. 47 at 12; ECF No. 49 at 7-8. The record as a
whole is uncertain as to whether such an evaluation would be possible. See ECF No.
43-5 at 7; ECF No. 43-14 at 5 (Kris Mesman: “I can’t say one way or the other whether
they could have.”); ECF No. 43-10 at 4 (Dr. Kelly: “[I]t’s asking me to speculate”).
Moreover, there is a genuine dispute of fact as to whether a person standing outside

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the pharmacy is able to see a person working in the pharmacy from the waist down.
ECF No. 43 at 9; ECF No. 47 at 5. This evidence would permit a jury to find that
Walmart’s preferred alternative was an unreasonable one.
I conclude that the summary judgment record would allow a reasonable jury
to determine that Farnham’s request to have a workplace evaluation conducted
behind the pharmacy counter was reasonable and that Walmart’s alternate proposal
was unreasonable. Accordingly, Farnham’s claim for failure to accommodate should
proceed to trial.
B.

Disability Discrimination Based on Adverse Action
In order to prove disability discrimination under the MHRA, Farnham must

demonstrate the following: (1) that she suffers from a disability within the meaning
of the statute; (2) that she is qualified to perform the essential functions of her job
with or without reasonable accommodation; and (3) that Walmart treated her
adversely in whole or in part because of her disability. See Doyle v. Dep’t of Human
Servs., 2003 ME 61, ¶ 14, 824 A.2d 48. After the plaintiff establishes a presumption
of discrimination by satisfying these elements, the burden of production shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the adverse
employment action. Id. at ¶ 15. The burden then shifts back to the plaintiff to
demonstrate that this nondiscriminatory reason is pretextual and that unlawful
discrimination brought about the adverse employment action. Id.
Walmart does not suggest an absence of evidence as to the first or second
prongs of this analysis. ECF No. 42 at 15-17. As such, I focus on the causation prong
and the subsequent burden-shifting framework.
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1. Causation
Walmart argues that Farnham has not introduced evidence sufficient for a
reasonable jury to conclude that her disability was the but-for cause of her
termination.

ECF No. 42 at 16.

standard in this context.

However, but-for causation is not the correct

The proper causation standard in an employment

discrimination action under Maine law is whether the claimed discrimination “was a
substantial, even though perhaps not the only, factor motivating the employee’s
dismissal.” See Walsh v. Millinocket, 2011 ME 99, ¶ 25, 28 A.3d 610; Caruso v.
Jackson Laboratory, 2014 ME 101, ¶ 13, 98 A.3d 221.2
There is sufficient evidence for a reasonable jury to conclude that Farnham’s
disability was a substantial factor motivating her dismissal. Walmart employed
Farnham for more than eight years, apparently without incident. ECF No. 43 at 1;
ECF No. 47 at 1. Farnham’s termination came after she suffered a workplace injury
that required multiple accommodations. ECF No. 43 at 3-4; ECF No. 47 at 2. Her
termination came shortly after she made repeated requests for a workplace
evaluation that could help her adjust to working with a hip injury. ECF No. 47 at 11;

In Caruso, the Law Court observed that the substantial factor test could be seen as “[a]nother way
of restating” the but-for causation test. Caruso, 2014 ME 101, ¶ 17, 98 A.3d 221. However, the opinion
reiterates that “[t]o demonstrate a causal link [in a WPA claim], the plaintiff must show that the
protected activity . . . was a substantial . . . factor motivating the employee’s dismissal.” Id. ¶ 13
(quotations and citations omitted). Moreover, there is no indication in Caruso that the Law Court
intended to overrule Walsh, in which the Law Court reiterated that “the proper inquiry on an
employment discrimination claim is whether the discrimination itself—in this case retaliation against
an employee who engaged in protected conduct pursuant to the WPA—was a substantial, even though
perhaps not the only, factor motivating the employee’s dismissal.” Walsh, 2011 ME 99, ¶ 25, 28 A.3d
610 (internal quotations and citations omitted). Accordingly, the protected activity need not be the
sole or primary factor motivating an adverse employment action. Even if more than one factor affects
the decision to dismiss an employee, the employee may prevail if one factor is unlawful and, in fact, it
made a difference in determining whether the employee was to be retained or discharged, such that a
jury could conclude that protected activity was a substantial factor motivating the dismissal.
2

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ECF No. 49 at 4-5. Her termination also followed a report from her supervisor,
Amanda Craig, that although Farnham “hasn’t thus far seemed to be drug impaired
. . . [it] appears that in order to be able to work physically she does need to be
medicated.” ECF No. 47 at 14; ECF No. 49 at 13. The timing of Farnham’s dismissal,
coupled with Craig’s acknowledgment, would allow a reasonable jury to conclude that
Farnham’s disability and corresponding need for prescription medication were a
substantial factor in her termination. Accordingly, summary judgment as to the
causation factor is inappropriate.
2. Pretext
Even if Farnham can satisfy the prima facie case of disability discrimination,
Walmart argues that Farnham has not introduced sufficient evidence for a
reasonable jury to conclude that Walmart’s non-discriminatory rationale for
Farnham’s termination (that she violated company drug policy) was pretextual and
that the real reason was disability discrimination. ECF No. 42 at 17.
“One way a plaintiff can establish pretext is by showing weaknesses,
inconsistencies and contradictions in the employer’s proffered legitimate reasons for
termination.” Trafton v. Sunbury Primary Care, P.A., 689 F.Supp.2d 180, 197 (D.
Me. 2010). Viewed in the light most favorable to Farnham, the facts demonstrate
several weaknesses and inconsistencies in Walmart’s claim that Farnham was fired
for violation of the company’s prescription medication policy.
First, it is uncertain whether Farnham actually violated Walmart’s
prescription medication policy. Walmart’s policy requires the termination of any

16

employee who exceeds a prescribed dose of prescription medication or who fails to
follow the prescribed instructions for using a drug. ECF No. 43 at 14; ECF No. 47 at
9. However, there is a genuine dispute as to whether Farnham ever admitted to
exceeding her prescribed amount of medication or admitted to feeling impaired at
work. See id. While Walmart claims that Farnham made these admissions in a
January 6, 2012 meeting with District Manager Chad Tozier, Farnham denies
making the admissions. Id. This dispute presents a credibility determination that is
properly left to a jury. Moreover, while Farnham admitted that it was possible she
could have taken her pills too closely together, she also claims she told Tozier that
her doctor had instructed her that this was approved. ECF No. 47 at 17; ECF No. 49
at 18. In addition, at least three other employees, namely Amanda Craig, Kara
Preston, and Tracy Gardner, worked with Farnham on January 5 without expressing
any concerns to Farnham about her alleged impairment on that day. ECF No. 47 at
15-16; ECF No. 49 at 15-16.
Finally, there is evidence that Walmart’s investigation into Farnham’s
behavior may have been less than thorough. In particular, Tozier and store manager
Laura Donovan failed to view a video of Farnham at work on January 5, despite
Farnham’s insistence that the video would show her to be functioning normally. ECF
No. 47 at 17; ECF No. 49 at 19.
Walmart may persuade a jury that Farnham violated the company’s
prescription medication policy and was let go for doing so. However, the potential
weaknesses that Farnham has identified in Walmart’s non-discriminatory rationale

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for her termination could also lead a jury to conclude that Farnham’s termination for
violating Walmart’s prescription medication policy was pretextual.

Accordingly,

summary judgment on this issue is inappropriate.
VI. CONCLUSION
For the foregoing reasons, defendant’s Motion for Summary Judgment is
DENIED.
SO ORDERED.
Dated: December 8, 2014

/s/ Jon D. Levy
U.S. District Judge

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