US EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAL-MART STORES INC et al

Filing 51

ORDER ON MOTIONS FOR SUMMARY JUDGMENT denying 27 Motion for Partial Summary Judgment; denying 29 Motion for Summary Judgment By JUDGE JON D. LEVY. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
U.S. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,

)
)
)
Plaintiff,
)
)
v.
) 1:18-cv-00170-JDL
)
WAL-MART STORES, INC., et al., )
)
Defendants.
)
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
This case arises out of a request for a work-related accommodation made by a
Walmart 1 employee. The Equal Employment Opportunity Commission (“EEOC”)

alleges that Walmart failed to provide the employee with a reasonable
accommodation and subsequently terminated her because of her disability, in
violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. § 12101, et seq.
(West 2019). The parties have each filed motions for summary judgment. 2 For the
reasons detailed below, I deny both motions.
I. FACTUAL BACKGROUND
The following undisputed facts are drawn primarily from the parties’ joint
stipulation of facts (ECF No. 26-1), as well as the EEOC’s and Walmart’s separate
statements of fact.

1 Wal-Mart Stores, Inc., states that it changed its name to Walmart Inc. in March 2018. This order will refer
to Walmart Inc. and its codefendant, Wal-Mart Stores East LP, collectively as “Walmart.”
2

2.

The EEOC’s motion requests partial summary judgment on liability and a trial on damages. ECF No. 27 at

Veronica Resendez began working for Walmart in 1999 as a Cashier in Texas.
In 2009, Resendez transferred to the Walmart store in Augusta, Maine, where she
most recently worked as a Consumables Sales Associate. The parties stipulate that,
“[a]t all relevant times, Resendez had a disability, as that term is defined under the
ADA . . . .” ECF No. 26-1 ¶ 11. Beginning no later than January 2013, Resendez’s
disability 3 prevented her from performing the essential functions of her job as a
Consumables Sales Associate. In mid-January, Walmart provided Resendez with an
accommodation request form to complete.

A little over a week later, Resendez

returned the form and a medical questionnaire that had been completed by her
medical provider to Walmart, requesting that Walmart accommodate her in her thencurrent position by not requiring her to climb ladders or get on her knees. After
returning the completed accommodation request form, Resendez requested a medical
leave of absence through April 30, which Walmart approved.
Walmart’s Accommodation Service Center (“ASC”) is the division of the
company’s Benefits Department that processes employees’ accommodation requests.
In a letter dated February 3, 2013, Walmart denied Resendez’s request to be
accommodated in her then-current position because the medical restrictions imposed
by her doctor prevented her from performing several of the essential functions of her
position: lifting 25 pounds and moving up and down a ladder. Instead, Walmart
offered Resendez the alternative accommodation of reassignment to a different,

On her accommodation request form, Resendez reported that her disability was stenosis of the spine and bone
degeneration in the knee and spine.
2
3

vacant position. Walmart has a policy that governs reasonable accommodations for
employees (the “Accommodation Policy”), including reassignment.
When a disabled employee is eligible for reassignment, the Accommodation
Policy provides that the ASC will identify positions that constitute a lateral transfer
or demotion for which the employee is qualified, and will then conduct searches for
vacant positions that match that description within the employee’s “home facility” for
up to 90 days. ECF No. 26-3 at 2. The only positions at Walmart that constituted a
lateral transfer or demotion, and which Resendez was qualified to perform with or
without reasonable accommodation, were Fitting Room Associate and People Greeter
(together, “suitable positions”). Walmart informed Resendez in its February 3, 2013,
letter that the ASC had conducted an initial search for vacancies for suitable positions
at Resendez’s home store in Augusta but had not discovered any. Walmart also
advised Resendez that the company would continue to actively search for suitable
reassignment positions at the Augusta facility for up to 90 days.
During the 90-day period between February 4 and May 5, 2013, the ASC
conducted weekly searches for vacant Fitting Room Associate and People Greeter
positions at the Augusta store. Although Walmart did not search for positions at
other nearby stores, during the 90-day search period two Fitting Room Associate
positions were posted at the Waterville store. 4 The first was a temporary Fitting
Room Associate position, which was posted on March 6, 2013. That position was filled

4 The parties have stipulated that “[i]t would not have been an undue hardship, as that term is defined under
the ADA, for Walmart to have made a single limited exception to the reassignment process in its Accommodation
Policy in order to search for a vacant Fitting Room Associate position on a weekly basis from February 4, 2013, to
May 5, 2013, at the Waterville store for Resendez.” ECF No. 26-1 ¶ 30.

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by an external applicant two weeks later. Then, on March 22, 2013, a full-time
Fitting Room Associate position was posted at the Waterville store. An employee at
the Waterville store who had requested a reasonable accommodation because of
medical restrictions resulting from pregnancy was reassigned to that position.
Walmart’s searches did not reveal any vacancies for Fitting Room Associate or
People Greeter positions at the Augusta store. Therefore, at the end of the 90-day
period, Walmart sent Resendez a letter dated May 8, 2013, explaining that the
company had not identified any vacant, suitable positions to which Resendez could
be reassigned as a reasonable accommodation. Walmart continued to allow Resendez
to take an unpaid leave of absence for up to a year as a further accommodation and
informed Resendez that she could apply for open positions at her store in Augusta
and at other stores while she was on leave. While Resendez was on unpaid leave, she
learned that an employee named Doreen planned to retire from her Fitting Room
Associate position at the Augusta store and she approached the Augusta personnel
coordinator to ask about Doreen’s position. Resendez ultimately did not fill the
position. 5
On March 4, 2014, Resendez informed the personnel coordinator at the
Augusta store that her medical restrictions had not changed and that she could not
return to work in her prior position. In response, Walmart terminated Resendez’s
employment.

The EEOC asserts that Walmart did not offer Doreen’s Fitting Room Associate position to Resendez after
Doreen retired, a fact which Walmart denies on the basis that the personnel coordinator “could not recall during
her deposition whether or not she had made this offer to Resendez.” ECF No. 36 at 9. Resendez testified during
her deposition that she heard that Doreen’s position was later filled by a different Walmart employee. ECF No.
26-13 at 167:12-168:12.
4
5

II. LEGAL ANALYSIS
“Summary judgment is warranted if the record, construed in the light most
flattering to the nonmovant, presents no genuine issue as to any material fact and
reflects the movant’s entitlement to judgment as a matter of law.” Miceli v. JetBlue
Airways Corp., 914 F.3d 73, 80-81 (1st Cir. 2019) (quotation marks omitted). “In the
lexicon of Rule 56, ‘genuine’ connotes that the evidence on the point is such that a
reasonable jury, drawing favorable inferences, could resolve the fact in the manner
urged by the nonmoving party, and ‘material’ connotes that a contested fact has the
potential to alter the outcome of the suit under the governing law if the controversy
over it is resolved satisfactorily to the nonmovant.” Blackie v. Maine, 75 F.3d 716,
721 (1st Cir. 1996). When the parties have each filed motions for summary judgment,
the “court must consider each motion separately, drawing inferences against each
movant in turn.” Id.
“The ADA prohibits employers from discriminating against a ‘qualified
individual’—defined

as

‘an

individual

who,

with

or

without

reasonable

accommodation, can perform the essential functions of the employment position that
such individual holds or desires’—on the basis of disability.” Audette v. Town of
Plymouth, MA, 858 F.3d 13, 20 (1st Cir. 2017) (quoting 42 U.S.C.A. § 12111(8)).
Discrimination on the basis of disability includes “not making reasonable
accommodations to the known physical or mental limitations” of an employee, unless
the employer can demonstrate that the accommodation would impose an undue
hardship. 42 U.S.C.A. § 12112(b)(5)(A). To prevail at the summary judgment stage,
an employee claiming that an employer failed to reassign the employee as a
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reasonable accommodation must present sufficient evidence to show: (1) that the
employee was disabled under the ADA; (2) that the employee could perform the
essential functions of the position she desired either with or without a reasonable
accommodation; and (3) that the employer knew of the employee’s disability, yet
failed to reasonably accommodate it. Audette, 858 F.3d at 20-21. “Moreover, the
employee must demonstrate that there is an actual vacant position” to which she
could have transferred. Id. at 21.
Here, the parties agree that Resendez was disabled under the ADA and that
she could perform the essential functions of the Fitting Room Associate job. The
parties dispute whether there was an actual vacant position to which Resendez could
have transferred and, relatedly, whether Walmart failed to reasonably accommodate
her disability. I address each party’s motion for summary judgment, beginning with
the EEOC’s motion, which was filed first in time.
A.

EEOC’s Motion for Summary Judgment
The EEOC argues that it is entitled to partial summary judgment on liability

because Walmart violated the ADA by failing to transfer Resendez to one of several
vacancies at the Augusta, Waterville, and Rockland/Thomaston Walmart stores as a
reasonable accommodation even though such a transfer would not have caused
Walmart undue hardship. See ECF No. 28 at 3. To survive the EEOC’s motion for
summary judgment, Walmart must “set forth specific facts showing that there is a
genuine issue for trial.” Thomas v. Harrington, 909 F.3d 483, 490 (1st Cir. 2018).
The EEOC argues that there exist no genuine disputes of material fact.

6

In Walmart’s additional statement of material facts in opposition to the
EEOC’s motion, Walmart asserts that “[n]ear the time of the May 8th letter, either
during the 90-day search period or soon after it ended,” the store manager and
personnel coordinator for the Augusta store met with Resendez in person and “offered
her a full-time position in the Augusta Fitting Room,” but Resendez rejected the offer
because she did not like the required hours. ECF No. 36 at 22. The EEOC denies
this fact, asserting that Walmart never offered Resendez any positions, and requests
that the fact be stricken from Walmart’s response under Local Rule 56. Rule 56(b)
provides that, “[i]n the event the parties file a stipulated statement of material facts,
such stipulated facts shall control and take precedence over any conflicting statement
of fact filed by any party to the stipulation.” D. Me. L.R. 56(b). The parties’ joint
stipulation of facts states that, during the “90-day period between February 4, 2013
and May 5, 2013, there were no Fitting Room Associate or People Greeter vacancies
in the Augusta facility.” ECF No. 26-1 ¶ 23. Thus, whether Walmart’s asserted fact
conflicts with the stipulated fact depends upon whether the purported job offer took
place “during” or “soon after” the 90-day search period. Because it is unclear whether
there is a conflict and, for reasons I will explain, this dispute of fact is both genuine
and material, I deny the EEOC’s request to strike Walmart’s fact.
First, the dispute is genuine because a jury could resolve the fact in the manner
urged by Walmart, the nonmoving party. To support its assertion, Walmart cites to
the deposition testimony of the Augusta store manager and personnel coordinator,
both of whom testified that the alleged conversation and job offer took place, though
they differed in their recollections of when it took place relative to the 90-day search
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period. See ECF No. 26-8 at 28:22-31:10; ECF No. 26-14 at 35:8-37:24. Second, the
fact is material because if Walmart did offer Resendez the opportunity to transfer to
a position for which she was qualified as a reasonable accommodation, and Resendez
rejected the position, Walmart would not be liable under the ADA for failure to
accommodate. See 29 C.F.R. § 1630.9(d) (West 2019) (a person is no longer a qualified
individual under the ADA if she “rejects a reasonable accommodation, aid, service,
opportunity or benefit that is necessary to enable the individual to perform the
essential functions of the position held or desired”); see also Freadman v. Metro. Prop.
& Cas. Ins. Co., 484 F.3d 91, 104 (1st Cir. 2007) (employee cannot refuse a reasonable
accommodation and then argue later that employer should have offered something
different). Because Walmart has raised a genuine dispute as to a material fact, the
EEOC is not entitled to partial summary judgment on liability. 6
B.

Walmart’s Motion for Summary Judgment
Walmart argues that it is entitled to summary judgment because it fulfilled its

obligations under the ADA when the ASC performed its initial search for suitable
vacancies at the Augusta store in early 2013, when Resendez was first offered the
accommodation of reassignment, and did not discover any. ECF No. 29 at 1. At that
point, Walmart asserts, it “could have simply notified Resendez of this fact and either
terminated her employment” or placed her on unpaid leave indefinitely. Id. A
plaintiff opposing summary judgment “bears ‘the burden of producing specific facts
sufficient to deflect the swing of the summary judgment scythe.’” Miceli, 914 F.3d at
6 Walmart also requested that portions of the EEOC’s Reply Statement of Material Facts be stricken for failure
to comply with Local Rule 56(d). See ECF No. 48 at 1-4; D. Me. L.R. 56(d)-(e). Because none of the objected-to
sections of the EEOC’s Reply Statement of Material Facts are material to my analysis of the EEOC’s motion for
partial summary judgment, I deny the request to strike as moot.
8

81 (quoting Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003)). In doing
so, “[t]he nonmovant must point to materials of evidentiary quality,” Irobe v. U.S.
Dep’t of Agric., 890 F.3d 371, 377 (1st Cir. 2018), and cannot rely on “mere allegations
or denials” to sustain their burden. Thomas, 909 F.3d at 490.
The EEOC points to several vacancies at the Augusta, Waterville, and
Rockland/Thomaston Walmart stores, which it argues Walmart should have
reassigned Resendez to as a reasonable accommodation. Among these is a vacancy
that the EEOC argues was created after an employee at the Augusta store, Doreen,
retired from her Fitting Room Associate position in late 2013. Walmart responds that
the EEOC has not demonstrated that a vacancy, as that term is defined under the
ADA, existed after Doreen’s retirement. For reasons I will explain, I conclude that
the EEOC has met its burden of producing specific facts to generate a trialworthy
issue regarding whether Walmart failed to reasonably accommodate Resendez by
failing to offer her a Fitting Room Associate position at the Augusta store following
Doreen’s retirement.
There is no First Circuit authority delineating what constitutes a vacant
position, but the Supreme Court has concluded that nothing in the ADA “suggests
that Congress intended the word ‘vacant’ to have a specialized meaning.”

U.S.

Airways, Inc. v. Barnett, 535 U.S. 391, 399 (2002). The Tenth Circuit has held that
“positions within [a] company are ‘vacant’ for the purposes of the ADA when they
would be available to similarly-situated nondisabled employees to apply for and
obtain.” Duvall v. Georgia-Pac. Consumer Prod., L.P., 607 F.3d 1255, 1263 (10th Cir.
2010).

Additionally, several courts of appeals and the District of Maine have
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concluded that “[t]he term ‘vacant position’ not only includes positions that are
presently vacant, but also those that the employer reasonably anticipates ‘will
become vacant in a short period of time.’” Cravens v. Blue Cross & Blue Shield of
Kan. City, 214 F.3d 1011, 1019 n.5 (8th Cir. 2000) (quoting Monette v. Elec. Data Sys.
Corp., 90 F.3d 1173, 1187 (6th Cir. 1996), abrogated on other grounds by Lewis v.
Humboldt Acquisition Corp., 681 F.3d 312, 314-17 (6th Cir. 2012)); see also Smith v.
Midland Brake, Inc., 180 F.3d 1154, 1175 (10th Cir. 1999) (same); Rowe v. Aroostook
Med. Ctr., No. 1:09-cv-182-DBH, 2010 WL 3283065, at *11 (D. Me. Aug. 17, 2010), R.
& R. adopted, 2010 WL 3851607 (D. Me. Sept. 28, 2010) (same).
Both Resendez and the Augusta personnel coordinator testified during their
depositions that an employee named Doreen retired from her position as a Fitting
Room Associate at the Augusta store while Resendez was on unpaid leave, and that
Resendez asked about filling the position. See ECF No. 26-13 at 156:5-157:2, 166:17167:11; ECF No. 26-14 at 33:18-34:20, 35:10-25.

Walmart first argues that no

admissible evidence establishes that Doreen retired while Resendez was on leave
because the Augusta personnel coordinator did not recall specifically when it occurred
and answered “I believe so” when asked whether Doreen retired before Resendez’s
employment with Walmart terminated in March of 2014. ECF No. 44 at 7; see also
ECF No. 26-14 at 35:12. Walmart relies on Feliciano v. Rhode Island, 160 F.3d 780,
(1st Cir. 1998), in which the First Circuit rejected as inadmissible the plaintiff’s
deposition testimony, offered to show that a vacancy existed, “that she told someone
that she heard by ‘word of mouth’ that some unknown receptionist was going to
retire.” Id. at 787.
10

Several facts distinguish this case from Feliciano, however. First, although
Resendez did testify that she heard from other employees that Doreen was retiring,
she also testified that she saw photos of Doreen’s retirement party on Facebook, after
which she inquired about the position.

ECF No. 26-13 at 167:2-11.

Second,

Resendez’s testimony is not the only evidence of the vacancy—the Augusta personnel
coordinator also testified that Doreen retired and that, although she did not recall
exactly when it happened, she believed it was before Resendez left Walmart in March
2014.

ECF No. 26-14 at 34:1-2, 35:10-15.

Walmart asserts that the Augusta

personnel coordinator’s testimony is not admissible because “[s]tatements made upon
information and belief, as opposed to personal knowledge, are not entitled to weight
in the summary judgment balance.” Cadle Co. v. Hayes, 116 F.3d 957, 961 (1st Cir.
1997); ECF No. 44 at 7. But this elevates form over substance. In Cadle, the First
Circuit was referring to a conclusory assertion made by the defendant which was
unsupported by the evidence. 116 F.3d at 961. Here, in contrast, the Augusta
personnel coordinator’s statement about the timing of Doreen’s retirement can
reasonably be interpreted as her best recollection of a fact for which she would have
had contemporaneous personal knowledge.

Therefore, unlike in Feliciano,

inadmissible hearsay is not the only evidence of the vacancy created by Doreen’s
retirement.
Walmart also raises the argument that, even if the evidence regarding
Doreen’s retirement is admissible, it is not sufficient to establish that a vacancy
existed because the EEOC has not shown that Walmart posted a Fitting Room
Associate position after Doreen retired or otherwise sought to fill the position.
11

Walmart contends that it could have chosen not to fill the position at all and cites to
Audette, 858 F.3d at 21, for the proposition that evidence of a backlog of work does
not establish the existence of a vacancy. But Audette is distinguishable. In that case,
the First Circuit concluded that testimony that the employer was “several months
behind” on data entry was insufficient to establish that there was a vacancy that the
plaintiff could have filled. Id. Here, there was an existing job at the Augusta
Walmart store that an employee planned to vacate and, as defined above, a “vacancy”
encompasses positions that an employer reasonably anticipates will become vacant
in the near future.

See Cravens, 214 F.3d at 1019 n.5.

Furthermore, when

considering Walmart’s motion I must draw reasonable inferences in favor of Resendez
as the nonmoving party. Doing so leads to the conclusion that a vacancy existed when
Doreen gave notice of her retirement because, at that point, Walmart could
reasonably anticipate that the Fitting Room Associate position would become vacant
in a short period of time.
Finally, Walmart argues that Resendez’s reassignment to the Fitting Room
Associate position in Augusta would not have been a reasonable accommodation as a
matter of law because the position was not vacant or expected to become vacant when
Resendez submitted her accommodation request in early 2013. But such a brightline approach ignores the individualized assessment that is “essential” to disability
claims. García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000)
(quoting School Bd. v. Arline, 480 U.S. 273, 287 (1987)). After Walmart notified
Resendez by letter in May 2013 that it had not identified any vacant positions to
which she could be reassigned, Walmart allowed Resendez “to take an unpaid leave
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for up to a one-year period as a further accommodation, during which time Resendez
could apply for open positions.” ECF No. 26-1 ¶ 25. Because “[t]he duty to provide
reasonable accommodation is a continuing one . . . and not exhausted by one effort[,]”
a jury could reasonably conclude that the ADA required Walmart to reassign
Resendez to a vacancy that occurred while she was on leave. Ralph v. Lucent Techs.,
Inc., 135 F.3d 166, 172 (1st Cir. 1998); cf. Criado v. IBM Corp., 145 F.3d 437, 444-45
(1st Cir. 1998) (allowing a disabled employee to take a leave of absence “does not
absolve an employer’s duty to accommodate”).
For the foregoing reasons, I conclude that the EEOC has produced specific facts
“sufficient to deflect the swing of the summary judgment scythe.” Miceli, 914 F.3d at
81. Walmart is, therefore, not entitled to summary judgment.
III. CONCLUSION
For the reasons set forth above, it is ORDERED that the EEOC’s Motion for
Partial Summary Judgment on Liability (ECF No. 27) and Walmart’s Motion for
Summary Judgment (ECF No. 29) are both DENIED.

SO ORDERED.
Dated this 13th day of August, 2019.
/s/ JON D. LEVY
CHIEF U.S. DISTRICT JUDGE

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