BENSON v. WAL-MART STORES EAST INC

Filing 70

DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, granting 52 Motion for Summary Judgment By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MARGARET BENSON,
PLAINTIFF
V.

WAL-MART STORES EAST, L.P.,
DEFENDANT

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CIVIL NO. 2:16-CV-114-DBH

DECISION AND ORDER ON DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
This is a case asserting disability-based employment discrimination
contrary to the Maine Human Rights Act (MHRA), 5 M.R.S.A. § 4572(2). The
defendant removed it to this court based upon diversity of citizenship
jurisdiction, 28 U.S.C. § 1332.

There are two claims: failure to reasonably

accommodate, from October 2014 to June 2015, an employee’s medical
restrictions arising out of an injury in October; and actual discrimination in
failing to hire the employee for a different position within the company after the
October injury. The defendant Wal-Mart Stores East, L.P. (Wal-Mart) has moved
for summary judgment on its employee Margaret Benson’s claims. Because it is
a summary judgment motion, I take all disputed facts in Benson’s favor, and
draw all inferences favorable to her. The motion is GRANTED.

Reasonable Accommodation

Benson worked for Wal-Mart as a Grocery Reclamation/DSD Receiving
Associate.

It is undisputed that Benson’s “positions of Grocery Reclamation

Associate (primary job) and DSD Receiving (secondary job) required her to lift up
to 25 and 50 pounds, respectively.”1 It is also undisputed that after her injury
in October 2014 she could no longer perform these job requirements.2 Benson
has not asserted that these were not essential functions of that job.
Benson claims that for a period of time Wal-Mart failed to reasonably
accommodate her medical restrictions that arose out of her October injury. The
basis for her claim is that the company treats work-related injuries differently
from non-work-related injuries. For an employee with a work-related injury,
Wal-Mart creates a temporary position in a job category that the injury’s
limitations permit the employee to perform.3

For non-work-related injuries,

however, Wal-Mart refuses to create a temporary position and requires the
employee to meet the physical requirements of the position she occupied, or to
pursue an accommodation within that position.4 According to a Wal-Mart comanager at the store where Benson worked:
[I]f an associate is injured at work, we do what we can do to
accommodate their restrictions, meaning we are able to move
them to a job that’s not maybe their primary job in order to
accommodate them. . . . [But i]f you are injured away from
work and you can’t perform the essential functions of your

Def.’s Statement of Material Facts ¶ 58 (ECF No. 53) (Def.’s SMF); Pl.’s Resp. to Def.’s SMF ¶ 58
(ECF No. 60) (Pl.’s RSMF).
2 Def.’s SMF ¶¶ 56–59; Pl.’s RSMF ¶¶ 56–59.
3 Wal-Mart policy provides that an employee who suffers from a work-related injury may be
eligible for a temporary alternate duty (TAD), or light duty, position. Def.’s SMF ¶ 8; Pl.’s RSMF
¶ 8.
4 Def.’s SMF ¶¶ 4–5, 26; Pl.’s RSMF ¶¶ 4–5, 26; John Wayne Gottwald Decl. ¶ 8 (ECF No. 51-1).
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job, you need to go on a leave of absence until you can
perform the essential functions of your job because that is
your job.

Susan Bradstreet Dep. Tr. 15:9–17 (ECF No. 48-3).
Here, when Wal-Mart first learned of Benson’s injury, it believed that the
injury was work-related and therefore initially offered Benson a temporary
assignment5 as a people greeter, fitting room attendant, or paper shredder.6
Benson was willing to accept the offer after taking a three-day hiatus her doctor
recommended. When Benson returned to work three days later, however, WalMart withdrew that offer because it had concluded from a new medical
examination that Benson’s injury was not work-related.7

(Benson has not

argued that the non-work-related classification at that stage was inaccurate or
itself discriminatory.) Benson did have the option to “apply for those positions
[people greeter; fitting room attendant; paper shredder] as opposed to keeping
her current position.” Susan Bradstreet Dep. Tr. 16:3–4 (ECF No. 48-3). She
did not do so.8 Wal-Mart gave Benson an unpaid leave of absence. Several

The TAD position typically does not exceed 90 days. Def.’s SMF ¶ 10. The plaintiff’s response
says: “Deny that the position is temporary. Plaintiff remained in the position of ‘people greeter’
for the rest of her employment.” Pl.’s RSMF ¶ 10. That response does not contradict the
defendant’s statement that “[t]he TAD position duration should normally not exceed 90 days.”
Def.’s SMF ¶ 10 (citing John Wayne Gottwald Decl., Ex. B at 2 (ECF No. 57-1) (“The TAD position
duration should not exceed 90 days.”)).
6 Def.’s SMF ¶ 25; Pl.’s RSMF ¶ 25.
7 On October 20, 2014, Dr. Jeanne Scheddel of Concentra performed an examination and
determined that Benson’s injury was not work-related. Def.’s SMF ¶¶ 30–32; Pl.’s RSMF ¶¶ 30–
32.
8 In other words, Benson did not specifically apply for an open position in the category of people
greeter, fitting room attendant or paper shredder in place of her job as a Grocery
Reclamation/DSD Receiving Associate. See Def.’s SMF ¶¶ 44, 47; Pl.’s RSMF ¶¶ 44, 47; Margaret
Benson Dep. Tr. 135:8–13 (ECF No. 49). What she wanted as to those positions was the
accommodation Wal-Mart initially offered her in October 2014 when it considered her injury
work-related. Pl.’s Opp’n to Def.’s Mot. Summ. J. 2, 10–11, 12 (ECF No. 62). As her legal
memorandum recognizes, that offer was for a “temporary position,” id. at 10 (quoting the written
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months later after another medical examination, however, Wal-Mart concluded
that Benson’s injury was in fact work-related.

Then it gave her workers’

compensation benefits and revived its October offer of a TAD position. Benson
returned to work in the TAD position as a people-greeter in June 2015, but with
the benefits due a grocery reclamation associate, along with a pay raise.9 In the
interim, she had been on unpaid leave from October 2014 to June 2015, which
is the subject of her discrimination claim for failure to accommodate. She again
went out on leave in the spring of 2016 when her injury prevented her from doing
the job of people greeter.

Margaret Benson Dep. Tr. 155:1–3 (ECF No. 49).

Apparently she left the company altogether in February 2017. Pl.’s Opp’n to
Def.’s Mot. Summ. J. 8 (ECF No. 62).
Benson argues that Wal-Mart’s treatment of employees with work-related
injuries shows that letting her perform the duties of one of the three positions
(people greeter, fitting room attendant, paper shredder) from October 2014 to
June 2015 was a reasonable accommodation that would have caused no undue
hardship to Wal-Mart, and therefore that Wal-Mart’s failure to do so during that
period violated the reasonable accommodation requirement of Maine’s disability
discrimination law. See 5 M.R.S.A. §§ 4553(2)(E) & (9)(A) (defining reasonable
accommodation). But Wal-Mart cites EEOC guidance that permits employers to

offer), and Benson testified at her deposition that her eventual return to work was on “temporary
assignment duty.” Margaret Benson Dep. Tr. 151:16-25, 211:15-17 (ECF No. 49); Pl.’s RSMF
¶ 85 (“Wal-Mart offered the position as a Temporary Assignment Position.”). Wal-Mart did create
temporary positions in those categories for employees injured on the job, but Benson has not
shown that there was an opening in one of those positions aside from that limited willingness to
create a temporary new position.
9 Def.’s SMF ¶¶ 83–86; Pl.’s RSMF ¶¶ 83–86; Sherma Moody Dep. Tr. 43:2–7 (ECF No. 48-6).

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create temporary light duty positions for employees injured on the job without
requiring the employer to create positions for disabled workers who are disabled
from a non-work-related injury.10
Soto-Ocasio v. Federal Express Corp., 150 F.3d 14, 18 (1st Cir. 1998),
provides guidance on how to assess Benson’s reasonable accommodation
claim.11 According to Soto-Ocasio, “[i]t is plaintiff’s burden to prove that, at the
time she sought to resume her job, she had the ability to perform [its] essential
functions.”12 150 F.3d at 18. Here, Benson has presented no evidence that she
had the ability to perform the essential functions of Grocery Reclamation/DSD
Receiving Associate. The fact that Wal-Mart creates temporary positions such
as people greeter, fitting room attendant, or paper shredder for employees with
work-related injuries does not show that Benson has the ability to perform the
essential functions of a Grocery Reclamation/DSD Receiving Associate.

In its memorandum, Walmart cites EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002
(Oct. 17, 2002), Def.’s Mot. Summ. J. 13–14 (ECF No. 52), but it appears that the proper citation
for this EEOC guidance on the creation of light duty positions is: U.S. Equal Emp. Opportunity
Comm’n, EEOC Enforcement Guidance: Workers’ Compensation and the ADA, No. 915.002,
1996 WL 33161338, ¶ 27 (1996). According to the First Circuit, EEOC interpretive guidance
“‘while not controlling upon the courts by reason of [its] authority, do[es] constitute a body of
experience and informed judgment to which courts and litigants may properly resort for
guidance.’” Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91,104 n.13 (1st Cir. 2007)
(quoting Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 672 (1st Cir.1995)). I do not specifically
rely on the EEOC Guidance, but the result I reach under First Circuit cases is consistent with
it.
11 The parties agreed at the Local Rule 56 Conference that Maine’s Law Court has not addressed
the issues presented in this case and that the Law Court would follow federal caselaw. Report
of Pre-Filing Conference 1 (ECF No. 42).
12 Accord Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 20 (1st Cir. 2004) (“To assert a claim
for failure to accommodate under the Rehabilitation Act, Calero would have to establish the
following: (1) that she suffered from a ‘disability’ within the meaning of the statute; (2) that she
was a qualified individual in that she was able to perform the essential functions of her job,
either with or without a reasonable accommodation; and (3) that, despite her employer’s
knowledge of her disability, the employer did not offer a reasonable accommodation for the
disability.”).
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In Soto-Ocasio, the First Circuit dealt with a record where the employee
had “presented no ‘specific, competent evidence’ [that she was able to perform
her essential job functions]. . . . Instead, she has concentrated on the argument
that [her employer] also had an ADA-imposed burden: to be responsive to
plaintiff’s request for reasonable accommodation,” i.e., to engage meaningfully in
an interactive process to identify a reasonable accommodation. 150 F.3d at 18–
19. The First Circuit ruled that:
[P]laintiff’s assertion that [her employer] failed to engage in
“meaningful” interaction with plaintiff regarding reasonable
accommodation is of no moment—or, more precisely, it puts
the cart well before the horse—because no reasonable trier
of fact could have found, on this record, that plaintiff was
capable of performing the duties [of her position], with or
without reasonable accommodation.

Id. at 19.
That is Benson’s situation here. She has not presented evidence of her
ability to perform the essential functions of a Grocery Reclamation/DSD
Receiving Associate. Although it is a stretch, she does present evidence that,
taken in the light most favorable to her, might show that Wal-Mart failed to
engage meaningfully in the interactive process over an accommodation, namely
the failure by certain members of management to respond to each one of her
many emails or phone calls.13 But aside from Wal-Mart’s distinction between
work-related

and

accommodation

non-work-related

that

Wal-Mart

injuries,

could

have

Benson
made

has
to

shown
the

no

Grocery

Pl.’s Statement of Material Facts ¶¶ 46–56 (ECF No. 61) (Pl.’s SMF); Def.’s Resp. to Pl.’s
Statement of Material Facts ¶¶ 46–56 (ECF No. 69) (Def.’s RSMF).

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Reclamation/DSD Receiving Associate position Benson actually held so as to
make it possible for her to continue in that position. The First Circuit has stated:
“To be sure, the term ‘reasonable accommodation’ may include ‘job restructuring
[and] part-time or modified work schedules.’ However, the ADA does not require
an employer ‘to reallocate job duties in order to change the essential function of
a job.’” Soto-Ocasio, 150 F.3d at 20 (citations omitted); accord Lang v. Wal-Mart
Stores East, L.P., 813 F.3d 447, 455–56 (1st Cir. 2016) (reasonable
accommodation does not require excusing employee from manual lifting
requirement of a position).
Instead, Benson argues that reassignment was required to accommodate
her injury. Pl.’s Opp’n to Def.’s Mot. Summ. J. 10–11 (ECF No. 62).  In particular,
she says:
Benson’s position as a Grocery Reclamation [sic] is not at
issue. The issue is whether Benson could perform the
essential functions for the positions of people greeter, fitting
room attendant or personnel associate.

Id. at 11 (emphasis added). Benson then argues that “[e]ssential function means
the fundamental duties of the employment position the individual with a
disability holds or desires.” Id. (emphasis added). Both the MHRA, 5 M.R.S.A.
§ 4553(8-D), and the ADA, 42 U.S.C. § 12111(8), do refer to “the essential
functions of the employment position that such individual holds or desires,” but
the “or desires” language covers employees who seek reassignment to a vacant
position. See Audette v. Town of Plymouth, No. 15-2457, 2017 WL 2298070, at
*6 & n.10 (1st Cir. May 26, 2017) (“[T]he employee must demonstrate that there
is an actual vacant position to which she can transfer. ‘An employer is not
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required by the ADA to create a new job for an employee . . . .’”(citations
omitted)). Benson has not shown that any of these positions was in fact vacant,
only that Wal-Mart was willing to create a temporary position for workers injured
on the job.14
I conclude that under the standards of Soto-Ocasio, Wal-Mart is entitled
to summary judgment on Benson’s claim under the reasonable accommodation
requirement.
Discrimination in Failure to Hire (Count II)

The dispute here is over a “UPC Office” position in the Windham Wal-Mart
store that Benson wanted and did not obtain.
When Benson was injured in the fall of 2014, Wal-Mart employed two UPC
Office employees at the Windham store. Benson’s burden to establish a prima
facie case for her failure to obtain one of these positions has four elements. She
must show that (1) she is “a member of a protected class;” (2) that she “applied
for an open position” with Wal-Mart; (3) that she “was not selected”; and (4) that

Benson also refers briefly to a position in the Crafts Department. Pl.’s Opp’n to Def.’s Mot.
Summ. J. 7, 12 (ECF No. 62); see also Pl.’s SMF ¶¶ 70–71; Def.’s RSMF ¶¶ 70–71. Benson
testified at her deposition that the co-manager of Crafts told her in February 2015 that she
“would hire [Benson] with 15-pound restrictions for crafts.” Margaret Benson Dep. Tr. 183:23–
184:17 (ECF No. 49). In contrast, the co-manager testified that at the time she didn’t know what
Benson’s restrictions were or whether they would meet the job requirements for Crafts and that
with Benson’s actual restrictions, Benson would not have qualified for the Crafts position. Mandi
Cotter Dep. Tr. 9:9–10:24 (ECF No. 59-1). That difference in testimony alone might simply create
a dispute for the fact-finder. However, Benson also testified that in the same conversation the
co-manager told her that the Crafts position “wouldn’t have the hours,” Benson Dep Tr. 184:8–
9, 199:7–8, that Benson would “have to check with personnel to see what the restrictions were
and personnel said no,” id. at 199:8–9, and that personnel told Benson “I didn’t meet the
restrictions,” id. at 199:12–13. Benson testified that she never asked the co-manager or
personnel to change the restrictions. Id. at 200:7–15. I conclude on this record Benson has not
shown that there was an open Crafts position (“wouldn’t have the hours”) or that she could
perform the essential functions of that position.
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Wal-Mart “hired another individual with similar qualifications.”

Clifford v.

Barnhart, 449 F.3d 276, 281 (1st Cir. 2006). If she does so, then Wal-Mart must
articulate a legitimate, non-discriminatory reason for the failure to hire her. If it
does so, then “any presumption of discrimination [is] dispelled, and the burden
[is] on [Benson] to generate a material issue that disability discrimination was a
determinative factor in the hiring decisions.” Id.
With respect to these elements, it is undisputed that (1) Benson was
disabled. Contrary to Wal-Mart’s assertion, there is evidence that would allow a
fact-finder to conclude that (2) Benson applied for the second UPC Office position
when it initially became open in September 2015, and (3) was denied.15 She
swore to that in her response to the defendant’s Interrogatory 14, ¶ h. Benson
Dep. Ex. 8 at 11 (ECF No. 49-1) (Wal-Mart’s attorney referred to this assertion
during her deposition. Benson Dep. Tr. 201:10–16 (ECF No. 49)). Contrary to
Wal-Mart’s assertion, there is also evidence that Benson identified the UPC Office
position in her career preferences on the Wal-Mart website. Benson Dep. Tr.
180:23–182:3 (ECF No. 49). Wal-Mart contests these assertions, but that creates

The record is somewhat unclear as to when Benson claims the failure to hire occurred. The
Amended Complaint refers only to January and September 8, 2015. Am. Compl. ¶¶ 15, 24 (ECF
No. 9). Wal-Mart’s memorandum in support of its motion for summary judgment focuses on
September 8, 2015. Def.’s Mot. Summ. J. 2, 16-18 (ECF No. 62). In her response, Benson seems
at one point to address September 2015 and the spring of 2016. Pl.’s Opp’n to Def.’s Mot. Summ.
J. 8–9 (ECF No. 62) (arguing that Wal-Mart discriminated against Benson by refusing to consider
her for the UPC position). But later, in a collective citation of many paragraphs of her Statement
of Material Facts, id. at 13 (citing Pl.’s SMF ¶¶ 22, 66–69, 82–95), she includes paragraphs that
address the January 2015 time period (¶¶ 66–69). See also Pl.’s Opp’n to Def.’s Mot. Summ. J.
7 (ECF No. 62) (“The UPC position, however, was open in January of 2015.”). For her contention
that there was an open position in January 2015, however, paragraph 69 of her Statement of
Material Facts refers to her deposition. There she testified that her basis for believing there was
an open position in January 2015 was “word of mouth,” not an actual Wal-Mart posting she had
seen. Benson Dep. Tr. 189:2–191:13 (ECF No. 49). That is insufficient evidence to show that
the position was actually open in January 2015. Therefore, I proceed to the later dates.
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a dispute for the fact-finder. As to both (4) and the legitimate non-discriminatory
reason for the failure to hire, Wal-Mart says that the reason Benson was not
hired in September for the second and open UPC Office position is that it decided
to hire no one and eliminated the second position altogether in the Windham
store for legitimate business reasons. Def.’s Mot. Summ. J. 17 (ECF No. 52);
Def.’s SMF ¶ 90. Benson has presented no contrary evidence to show that WalMart did hire someone else for the second position or that the second position
continues to exist.

She has also advanced no evidence of pretext in the

September decision.
However, the sole remaining UPC Office position did open in March of
2016, when the previous incumbent left and Wal-Mart hired a different person.16
This was not the subject of a discrimination claim in Benson’s Amended
Complaint, she has not met the Clifford v. Barnhart standards to advance it now
for the first time, and, while she summarily mentions it in her legal
memorandum, Pl.’s Opp’n to Def.’s Mot. Summ. J. 8–9, 13 (ECF No. 62), she has
not developed it. Even if I interpret her testimony to mean that she previously
altered her career preferences on the Wal-Mart computer website in a manner
that would include this unforeseen UPC Office position and thereby “applied” for
it and was denied, Benson has presented no evidence that Wal-Mart “hired

Pl.’s SMF ¶ 92 (Jean Bennett, the new UPC employee, “had been in the position about two or
three months as of July 2016”); Def.’s RSMF ¶ 92 (“On or about March 14, 2016, after Ms.
Blackmon left, the ‘UPC position’ became open and available. At that time, however, Plaintiff
was on a leave of absence from Wal-Mart. On or about March 19, 2016, Jean Bennett was placed
in the ‘UPC position.’ Prior to Ms. Bennett, Kathy Blackmon had filled the ‘UPC position” for at
least six years.”).

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another individual with similar qualifications” as Clifford requires. 449 F.3d at
281.

The store manager’s testimony is uncontradicted that if someone falls

“within the applicant pool,” Wal-Mart “pick[s] the best three applicants in that
pool, and then you go from there.”17 Moody Dep. Tr. 46:8–11. Moreover, WalMart has advanced a legitimate nondiscriminatory reason for its failure to hire
Benson in that position in March 2016: that, at the time, Benson was on a leave
of absence, no longer being able to perform her duties in the TAD position of
people greeter.18 Finally, Benson has failed to provide any evidence of pretext in
what occurred in March 2016. On the summary judgment record, therefore,
Benson cannot succeed on her claim that Wal-Mart’s failure to hire her in a UPC
position amounted to disability discrimination.
I conclude that Wal-Mart is entitled to summary judgment on both Counts.
I need not address the dispute over whether punitive damages would be available
if either claim survived.
SO ORDERED.
DATED THIS 23RD DAY OF JUNE, 2017
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

The store manager did not know whether Benson was in the applicant pool, Moody Dep. Tr.
46:8–11, and Benson has presented no evidence that she was, except for the computer system
reference. But for purposes of the summary judgment motion, I treat the record as if she was in
the pool. Nevertheless she has presented no evidence that the person hired had similar
qualifications or that Wal-Mart’s reason for failing hire Benson was pretextual.
18 See supra note 16; see also supra 4 (referring to Benson’s deposition testimony that she
became unable to perform the people-greeter job and went out again on leave of absence, Benson
Dep. Tr. 155:1–15 (ECF No. 49)).
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