Kahriman v. Wal-Mart Stores, Inc., et al.

Filing 77

Judge Douglas P. Woodlock: MEMORANDUM AND ORDER entered granting 54 Motion for Partial Summary Judgment, except to the extent that the plaintiff may pursue a constructive discharge claim. (Woodlock, Douglas)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
BEHIJA KAHRIMAN
Plaintiff,
v.
WAL-MART STORES, INC.,
WAL-MART STORES EAST, L.P.,
and JOSEPH E. DEVUONO II,
Defendants.

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CIVIL ACTION NO.
12-11887-DPW

MEMORANDUM AND ORDER
July 14, 2015
This is an action alleging employment discrimination by
defendants Wal-Mart Stores, Inc., and Wal-Mart Stores East,
L.P., and by defendant Joseph E. Devuono II, the manager of a
Wal-Mart store in Lynn, Massachusetts.

The plaintiff, Behija

Kahriman, was employed in several roles at the Lynn store from
April 2002 until February 2010.

Kahriman alleges that the

defendants intentionally discriminated against her on the basis
of her handicap/physical disability in violation of state and
federal antidiscrimination laws, and further that Devuono
intentionally inflicted emotional distress upon her and
interfered with a contractual or advantageous business

relationship she had with Wal-Mart.1

Now before me is the

defendants’ motion for partial summary judgment.
I. BACKGROUND
A.

Factual Background
1.

Kahriman’s Employment at Wal-Mart

Kahriman began working at the Wal-Mart store in Lynn,
Massachusetts (store number 2139, hereinafter “the Lynn store”)
in April 2002.

Devuono began working for Wal-Mart in 2001 and

was Kahriman’s supervisor and then store manager at the Lynn
store from at least January 1, 2009 to August 10, 2010.
Kahriman’s first role at the Lynn store was as a cashier.
At the time, she understood that this position would require
some heavy lifting.
or early 2004.

She became a sales floor associate in 2003

An essential function of that position was

frequently lifting and carrying items weighing up to and greater
than 50 pounds, while moving up and down a ladder.

In November

2007, Kahriman was promoted to department manager of the men’s
department.

An essential function of that position was

The parties dispute whether the Lynn store was operated by –and
correspondingly whether Kahriman was an employee of –defendant
Wal-Mart Stores, Inc., or defendant Wal-Mart East, L.P. Rather
than make this a dispute at issue in this case, the parties are
satisfied to proceed on the basis that the two named defendants
will be treated as potentially jointly and severally liable.
For simplicity, I will refer in this Memorandum to both
defendants jointly as “Wal-Mart.”
2
1

constantly picking up, lifting, sorting, carrying, and placing
items weighing up to 30 pounds without assistance and over 30
pounds with team lifting.

In February 2009, Kahriman became a

manager of the apparel department.

Among the physical

activities necessary to perform one or more essential functions
of this position is moving merchandise and supplies weighing
less than or equal to 25 pounds without assistance.

For each of

these positions, Kahriman affirmed that she had “the ability to
perform the essential functions of this position either with or
without a reasonable accommodation.”

Throughout her employment

at Wal-Mart, Kahriman received positive evaluations and yearly
raises.
During her employment at Wal-Mart, Kahriman experienced
ongoing health issues that impacted her ability to perform the
lifting duties of each of her positions.

In September 2002, she

took a leave of absence to undergo abdominal hysterectomy
surgery.

In a note to Wal-Mart on August 27, 2002, Kahriman’s

physician stated that Kahriman was scheduled for surgery and
“should avoid any strenuous activity when she is experiencing
pain.”

When she returned to work after the surgery, Kahriman

asked her supervisors for assistance with lifting, because her
stomach muscles were weak and she experienced pain when

3

performing heavy lifting.

According to Kahriman, this

assistance was not provided to her.2
After the 2002 surgery, Kahriman suffered recurring hernia
issues.

When Kahriman was transferred to a sales associate

position in the fabrics department in 2003 or early 2004, she
did not make a formal request for accommodation, but she did
request lifting assistance from her supervisors.

Again, by her

own account, she was not provided with such assistance.
In May 2003, Kahriman underwent ventral hernia surgery.
Kahriman’s physician informed Wal-Mart that she should not lift
more than 30 pounds upon her return to work.

Kahriman testified

that her supervisors and the human resources personnel did not
honor her requests for lifting assistance, despite this
instruction from her physician.

In her role as a sales

associate, Kahriman lifted boxes of merchandise for
approximately one hour three times per week.

Kahriman testified

that when she requested assistance with this task, her managers
told her to punch out and find another job.
During the holiday season of 2005, Kahriman experienced
recurring hernia issues, including pain when she lifted heavy

There is some dispute in the record whether Kahriman’s transfer
to a sales associate position and her subsequent transfers were
in response to her requests for a position without heavy
lifting.
4

2

boxes, but was denied leave for hernia surgery.
Kahriman took a leave of absence for the surgery.

In April 2006,
Following the

surgery, her physician informed Wal-Mart that Kahriman should
not lift more than 10 pounds.

Again, despite her physician’s

instruction, Kahriman’s supervisors did not provide her with
lifting assistance, and told her that if she could not perform
the lifting duties, she should punch out and go home or find
another job.
In November 2007, when Kahriman began working as a manager
in the men’s department, her supervisor promised her that she
would have assistance with lifting boxes weighing up to 50
pounds at the start of her shift.
provided.

This assistance was rarely

In November 2008, Kahriman’s physician informed

Wal-Mart that she could not lift or carry more than 20 pounds
due to lower back pain.

In June 2009, following a short leave

of absence for back issues, Kahriman informed the store manager,
Devuono, that she had developed two ventral hernias and asked
for lifting assistance at the start of her shift.

Her physician

again instructed that she should not lift more than 20 pounds.
Kahriman’s health issues at work escalated in September
2009.

On September 18, Kahriman’s daughter advised Wal-Mart’s

Legal Department by letter that Kahriman and others had
complaints about Devuono, and indicated specifically that when
5

Kahriman told Devuono that she could not lift something heavy
due to her hernia, “he tells her that he doesn’t really care and
that if she wants her job to do what he tells her to do.”

On

September 23, 2009, when Kahriman arrived at work in the
morning, Devuono instructed her to unload boxes from a pallet
because Wal-Mart’s president would be visiting that day.
Kahriman said she could not do it because of the heavy lifting
involved, but Devuono instructed her to unload the pallet
without assistance, or to punch out and go home.

After

completing the task, Kahriman felt stomach pains and could not
stand.

That night, Kahriman went to the emergency room and

learned that her “hernia came out.”

She underwent surgery for

these issues in October 2009.
Kahriman requested and received medical leave from
September 23, 2009 through January 15, 2010.

She went in to the

store on December 22, 2009 to file a report regarding her
injuries on September 23, her last day of performing work.

In

February 2010, Kahriman’s primary care physician provided a note
to Wal-Mart stating that Kahriman would be out of work
“forever.”

The note stated that Kahriman was “unable to work

6

period.”3

Kahriman’s last day of official employment with Wal-

Mart was February 4, 2010.

According to Kahriman, Wal-Mart did

not notify her that her employment was terminated; she learned
about her termination through a notice from Merrill Lynch
regarding one of her benefits in March 2010.
Although Kahriman testified that she understood Wal-Mart’s
accommodation policies – discussed in greater detail below –
Kahriman never filed a formal request for an accommodation,
because she was afraid she would be fired.

She did, however,

inform her managers of her physical limitations and her
inability to do heavy lifting.

Other than her lifting issues,

Kahriman was able to perform the essential functions of each of
her Wal-Mart jobs without assistance.
2.

Wal-Mart’s Formal Policies

Several policies contained in the record that were in place
during Kahriman’s employment – and of particular pertinence to
this case – are the Massachusetts Management Guidelines for
Accommodation in Employment (Medical-Related) Policy (the
“Management Accommodation Policy”) and the Massachusetts
Accommodation in Employment (Medical-Related) Policy (the

Kahriman’s doctors report that the lifting she performed at
Wal-Mart was a cause of Kahriman’s hernias in 2003, 2006, and
2009.
7
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“Accommodation Policy”).

Other policies in place during

Kahriman’s employment were the National Discrimination &
Harassment Prevention Policy (the “Harassment Policy”), the
National Open Door Communications Policy (the “Open Door
Policy”), and the Associate Transfer Policy (the “Transfer
Policy”).
The Management Accommodation Policy sets forth the
procedure to be used by supervisors and managers when an
associate requests an accommodation.

Specifically, it outlines

how to identify a request for accommodation, how to engage in
the interactive process, and how to conclude the accommodation
request process.
The Accommodation Policy states that “Wal-Mart will provide
Associates who have a disability with reasonable accommodations
to enable them to perform the essential functions of their jobs”
and sets forth a variety of alternatives – including a job aid
or environmental adjustment, a leave of absence, and transfer to
another open position – for individuals who “have a medical
condition that is not a disability” (emphasis in original).

The

policy frequently references an employee’s ability to request an
accommodation and indicates that “[a]s soon as you request an
accommodation, Wal-Mart will begin working with you to determine

8

whether or not you are eligible for a job aid or environmental
adjustment due to your medical condition.”
B.

Procedural History
On June 18, 2010, Kahriman filed a complaint with the

Massachusetts Commission Against Discrimination (MCAD) and the
United States Equal Employment Opportunity Commission (EEOC)4
alleging that Wal-Mart Stores, Inc. and Devuono discriminated
against her in violation of Mass Gen. Laws ch. 151B and the
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.
Kahriman received a notice of right to sue letter from the EEOC
and she in turn informed the MCAD that she intended to file an
action in state superior court; the MCAD accordingly dismissed
her complaint without prejudice.

Kahriman filed a complaint in

the Essex County Superior Court on August 27, 2012.

The

defendants removed the case to this court on the basis of
federal question jurisdiction, 28 U.S.C. § 1331.
The complaint alleges that all of the defendants: (I)
violated the Massachusetts Fair Employment Practices Law, Mass.

Due to a “work-sharing” agreement between the MCAD and the
EEOC, a charge filed with the MCAD is treated as filed with the
EEOC simultaneously. See Leung v. Citizens Bank, Civ. No. 1211060-FDS, 2014 WL 1343271, at *3 (D. Mass. Apr. 2, 2014)
(citing Seery v. Biogen, Inc., 203 F. Supp. 2d 35, 43 (D. Mass.
2002); Davis v. Lucent Techs., Inc., 251 F.3d 227, 230 n.1 (1st
Cir. 2001)).
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Gen. Laws ch. 151B §§ 1, 4, 4A, 5, 16, and 17; (II) violated the
Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq.; and
(III) interfered with and denied Kahriman’s state and federal
constitutional rights by threats, intimidation, or coercion, in
violation of Mass. Gen. Laws ch. 12, § 11I.

The complaint

asserts three additional counts against Defendant Devuono
individually: (IV) unlawful discrimination against Kahriman in
violation of Mass. Gen. Laws ch. 151B, §§ 4, 4A, & 5; (V)
intentional infliction of emotional distress; and (VI)
intentional interference with a contractual or advantageous
business relationship.

Finally, the complaint asserts one count

for injunctive relief against Wal-Mart (Count VII).

In addition

to declaratory and injunctive relief, Kahriman seeks
compensatory damages including for her physical and emotional
pain and suffering, back pay for lost wages and benefits,
interest on back pay, and front pay for future lost wages and
benefits; punitive damages; enhanced damages; attorneys’ fees
and costs; and reinstatement to a position with a reasonable
accommodation.
II. DISCUSSION
A.

Standard of Review
Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the moving party is entitled
10

to judgment as a matter of law.”

Fed. R. Civ. P. 56(a), (c).

A

“genuine” dispute is one that, based on the pleadings,
discovery, and disclosure materials in the record, “a reasonable
jury could resolve . . . in favor of the non-moving party,” and
a “material” fact is one that has “the potential to affect the
outcome of the suit under the applicable law.”

Sanchez v.

Alvarado, 101 F.3d 223, 227 (1st Cir. 1996) (citations and
quotation marks omitted).

In considering the record, I view the

facts “in the light most favorable to the non-moving party.”
Zambrana-Marrero v. Suarez-Cruz, 172 F.3d 122, 125 (1st Cir.
1999).
The defendants seek summary judgment on so much of Counts
I, II, and IV of Kahriman’s complaint as alleges discrimination
under the ADA and/or chapter 151B for (1) events that occurred
more than 300 days before Kahriman filed her charge of
discrimination with the MCAD, and (2) Kahriman’s formal
termination from employment.
B.

Statute of Limitations
The ADA adopts the procedural provisions governing Title

VII, and as a result, the statutes and case law discussing the
statute of limitations in the Title VII context are equally
applicable here.

See Tobin v. Liberty Mut. Ins. Co., 553 F.3d

121, 130 n.7 (1st Cir. 2009).

Under both Title VII and chapter
11

151B, a plaintiff must file an administrative complaint with the
MCAD or the EEOC within 300 days of the date of the occurrence
of the alleged unlawful employment practice.5

See 42 U.S.C.

§ 2000e-5(e)(1); Mass. Gen. Laws ch. 151B, § 5; Tuli v. Brigham
& Women’s Hosp., 656 F.3d 33, 40 (1st Cir. 2011); Ocean Spray
Cranberries, Inc. v. Mass. Comm’n Against Discrimination, 808
N.E.2d 257, 265-66 (Mass. 2004).
with the MCAD on June 18, 2010.

Kahriman filed her complaint
Accordingly, she would

ordinarily be barred from pursuing relief for any alleged acts
of discrimination that occurred more than 300 days prior to that
time (prior to August 22, 2009).
Kahriman seeks to invoke the continuing violation doctrine
to preserve her claims for events that occurred before August
22, 2009.6

Under the continuing violation doctrine, “[a] party

alleging employment discrimination may, in appropriate
circumstances, file suit based on events that fall outside the

Although the charge-filing period for Title VII claims is
typically 180 days, it is extended to 300 days where the state
anti-discrimination agency enforces a parallel state or local
law, as the MCAD does. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C.
§ 12117(a); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
110 (2002); see also Williams v. City of Brockton, 59 F. Supp.
3d 228, 245 (D. Mass. 2014).
6 The continuing violation doctrine developed in the Title VII
context, but it has been applied to ADA and chapter 151B claims
as well. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130
n.7 (1st Cir. 2009); Castro-Medina v. Procter & Gamble Comm.
Co., 565 F. Supp. 2d 343, 373 (D.P.R. 2008).
12
5

applicable statutes of limitation.”

Tobin, 553 F.3d at 130.

This doctrine effectively serves to renew untimely
discrimination claims if a related act occurred within the
limitations period.

See Davis v. Lucent Tech., Inc., 251 F.3d

227, 234 (1st Cir. 2001); Ocean Spray, 808 N.E.2d at 266-67.
“Under this continuing violation doctrine, a plaintiff who
ordinarily would be unable to recover damages for discrete acts
of discrimination falling outside the limitations period may
avoid that bar if those acts are shown to be part of a pattern
of discrimination anchored by acts that occurred within the
limitations period.”

Noviello v. City of Boston, 398 F.3d 76,

86 (1st Cir 2005) (citing Cuddyer v. Stop & Shop Supermarket
Co., 750 N.E.2d 928, 936 (Mass. 2001)).
The continuing violation doctrine can encompass two types
of violations: serial and systemic.7

See Lawton v. State Mut.

Although the First Circuit has observed, based on the Supreme
Court’s decision in National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 118 (2002), that “it is no longer necessary for a
jury to determine whether a violation is systemic or serial when
considering the timeliness of a hostile work environment claim,”
Crowley v. L.L. Bean, Inc., 303 F.3d 387, 406 (1st Cir. 2002),
that change appears to be limited to claims alleging a hostile
work environment. See Arroyo-Audifred v. Verizon Wireless,
Inc., 431 F. Supp. 2d 215, 218-19 (D.P.R. 2006). Recognition of
the distinction seems to remain for the application of the
continuing violation doctrine in other contexts. See, e.g.,
Davila-Torres v. Feliciano-Torres, 924 F. Supp. 2d 359, 367
(D.P.R. 2013).
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7

Life Assur. Co. of Am., 101 F.3d 218, 221 (1st Cir. 1996).

A

systemic violation “need not involve an identifiable discrete
act of discrimination transpiring within the limitation period,”
but instead involves a demonstration that the “plaintiff has
been harmed by the application of a discriminatory policy or
practice and that such policy continues into the limitations
period.”

Muniz-Cabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir.

1994) (quoting Jensen v. Frank, 912 F.2d 517, 523 (1st Cir.
1990) (internal quotation marks omitted; emphasis in original)).
This type of claim arises in relation to “general practices or
policies, such as hiring, promotion, training and compensation.”
Provencher v. CVS Pharm., Div. of Melville Corp., 145 F.3d 5, 14
(1st Cir. 1998).

Kahriman alleges a systemic violation based on

Wal-Mart’s “unlawful, discriminatory policies.”

Where a

plaintiff claims a systemic violation, she bears the burden of
demonstrating that “a discernible discriminatory policy was in
effect, and injured her, during the limitations period.”

Mack

v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 184 (1st Cir. 1989).8

Kahriman did not argue in her summary judgment briefing that
her claims qualify as serial violations. Even if she were to
make this argument, however, it would be unpersuasive. A serial
violation is “composed of a number of discriminatory acts
emanating from the same discriminatory animus, each act
constituting a separate [actionable] wrong,” but each act not
itself “rising to the level of a recognizable injury.” MunizCabrero v. Ruiz, 23 F.3d 607, 610 (1st Cir. 1994) (quoting
14
8

A brief explanation of what the law requires is necessary
in order to assess whether Kahriman has demonstrated that WalMart has a discriminatory policy.

As the First Circuit has

observed, the interactive process “is the first step in a proper
response to a disabled employee’s request for reasonable
accommodation.

It is a means of ensuring that employers take

steps to understand and address their employees’ disabilities.”
Tobin, 433 F.3d at 108 n.7.

For this reason, the ADA and

chapter 151B require an employer to engage in an interactive
process or “meaningful dialogue with the employee” to determine
a reasonable accommodation once an employee has requested an
accommodation.

Id. at 108-09; see Russell v. Cooley Dickinson

Hosp., Inc., 772 N.E.2d 1054, 1065 (Mass. 2002); see also 29

Jensen v. Frank, 912 F.2d 517, 522 (1st Cir. 1990)); Phillips v.
City of Methuen, 818 F. Supp. 2d 325, 330 (D. Mass. 2011). If
any of the discrete acts “standing alone is of ‘sufficient
permanence’ that it should trigger an ‘awareness of the need to
assert one’s rights,’” then the serial violation exception is
not available. Phillips, 818 F. Supp. 2d at 330 (quoting
O’Rourke v. City of Providence, 235 F.3d 713, 731 (1st Cir.
2001)). A denial of a request for accommodation or of a request
for leave constitutes a discrete act “which should have prompted
[the plaintiff] to assert [her] legal rights.” Williams, 59 F.
Supp. 3d at 242 (quoting Phillips, 818 F. Supp. 2d at 331); see
Tobin, 553 F.3d at 130-31; Ocean Spray Cranberries, Inc. v.
Mass. Comm’n Against Discrimination, 808 N.E.2d 257, 268-69
(Mass. 2004). This is precisely the type of conduct Kahriman
alleges regarding pre-August 22, 2009 conduct by the defendants.
Accordingly, the serial violation exception would not be
available to her.
15

C.F.R. § 1630.2(o)(3) (“To determine the appropriate reasonable
accommodation it may be necessary for the covered entity to
initiate an informal, interactive process with the individual
with a disability in need of the accommodation.”).
The scope of the interactive process required is not
defined in detail by the statutes, regulations, or case law, but
is generally understood to mean that at a minimum, the employer
must engage in an informal conversation with the employee to
uncover “potential reasonable accommodations” that could address
the employee’s needs.

See Tobin, 433 F.3d at 109 (quoting 29

C.F.R. § 1630.2(o)(3)); see also Equal Emp’t Opportunity Comm’n
v. Kohl’s Dep’t Stores Inc., 774 F.3d 127, 132 n.4 (1st Cir.
2014) (“an employer’s participation in the interactive process
[is not] an absolute requirement under the ADA”; rather,
employer must “initiate . . . a dialogue” with employee, and
court will review adequacy “on a case-by-case-basis” (citation
omitted));

29 C.F.R. § 1630.2(o)(3) (“This process should

identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome
those limitations.”).
Kahriman first argues that Wal-Mart’s written policies are
misleading and unlawful on their face.

Specifically, she argues

that the Accommodation Policy uses language that makes a
16

misleading distinction between “disability” and “medical
condition” that could lead Wal-Mart managers incorrectly to
consider qualified handicapped employees as having a “medical
condition” rather than a “disability.”

She suggests that such a

misleading definition undermines the interactive process.
argument is unavailing.

This

The policy defines “disability” in a

manner consistent with the definition under the ADA.

See 42

U.S.C. § 12102.
Moreover, on its face, the policy does not deprive
individuals of an informal interactive process, regardless of
whether they are classified as having a disability or a medical
condition.

The policy states that if an employee has a medical

condition that requires the employee to obtain assistance in
performing the essential functions of his or her job, he or she
may request an accommodation.

Upon making such a request, “Wal-

Mart will begin working with [the employee] to determine whether
or not [he or she is] eligible for a job aid or environmental
adjustment due to [his or her] medical condition.”

An employee

with a medical condition may alternatively be eligible for a
leave of absence, or may transfer to another open position.
Although there is some language in the policy that suggests that
Wal-Mart may seek to provide a job aid or environmental
adjustment before providing a reasonable accommodation, that
17

language is not at odds with what the ADA requires or with the
concept of an interactive process.

The policy expressly

provides that “[i]f your requested accommodation is not granted
as a job aid or environmental adjustment, you will be considered
for reasonable accommodation.”
Kahriman also argues that under the Transfer Policy —
before terminating them — Wal-Mart gives employees thirty days
to find an alternate position after they have requested an
accommodation.9

The language Kahriman cites governs the timing

and process for when an employee seeks a transfer, including to
accommodate a disability, but the policy does not itself require
employees who need accommodations to transfer.

In addition, the

provision Kahriman cites in the Transfer Policy falls under a
section entitled “Transferring from a Field Location to the Home
Office,” and applies only to transfers “from a field location to
a Home Office position or from a field position to another field
location.”

It therefore does not by terms apply when an

Kahriman specifically references the following language in the
Transfer Policy: “Associates seeking to transfer from a field
location to a Home Office position or from a field position to
another field location may be placed on a 30-day unpaid leave of
absence after leaving their original position to find another
position. After the 30 day time period has been exhausted and
the Associate has not found a position, his or her employment
will be terminated. The sending location will be responsible to
follow up with the Associate regarding the status of their
transfer and continued employment.”
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9

employee seeks to transfer to another position within the same
store.

Kahriman’s argument that this isolated provision of the

Transfer Policy, standing alone, denies employees who request
reasonable accommodations of the interactive process required by
law is unsupported.
In short, Wal-Mart’s formal policies do not violate the ADA
on their face.

Compare Stillwell v. Kansas City, Mo. Bd. of

Police Comm’rs, 872 F. Supp. 682, 684-85 (W.D. Mo. 1995) (policy
denying licenses to be armed security guard to applicants with
only one hand “discriminates against potentially qualified
individuals with disabilities” and has no credible rationale);
Galloway v. Superior Court of D.C., 816 F. Supp. 12, 16, 20
(D.D.C. 1993) (policy excluding all blind persons from jury duty
violates ADA because blind people are “otherwise qualified” to
sit on jury).
In the alternative, Kahriman argues that Wal-Mart had a
discriminatory practice of not engaging in the interactive
process.

A systemic violation can arise from “a de facto policy

in the form of a consistent, recurring practice.”

See Megwinoff

v. Banco Bilbao Vizcaya, 233 F.3d 73, 76 (1st Cir. 2000).

The

testimony of human resources employees from Wal-Mart that
Kahriman offers in support of this argument, however, does not
demonstrate a systemic violation.
19

Rita Weir, a 30(b)(6) witness for Wal-Mart, testified that
if an employee could not perform an essential function of her
job, Wal-Mart would seek to reassign her to another job, and if
another position was not available, the employee would be placed
on a leave of absence.

If, eventually, a job could not be

located for the employee, her employment could be terminated.
Weir indicated that this procedure involved an “interactive
process” that began with educating employees about how to inform
their supervisors when they required an accommodation.
Jennifer Charles, a market human resource manager for nine
Wal-Mart stores, including the Lynn store, testified that “[a]ll
associates are eligible to request a reasonable accommodation.”
She indicated that if an associate is not able to perform an
essential function of her job, the employee “would be
responsible for finding another position in the store,” and if
she could not, she would go on a leave of absence until she was
able to perform the essential functions, or up to a year.

At

that point, if she was unable to perform the essential
functions, she would be terminated.
Similarly, Susan Stewart, a human resources employee in the
Lynn store, testified that if an associate could not perform an
essential function, she would be placed on leave of absence or
transferred to an open position.
20

This testimony does not establish that Wal-Mart had a
discriminatory practice regarding reasonable accommodations.

It

may signal genuine disputes whether Wal-Mart actually assists
employees in identifying other positions and whether it follows
the letter of its own policies.

Such facts may be relevant to

whether Wal-Mart violated chapter 151B and the ADA in its
interactions with Kahriman.

But standing alone, untethered to

any specific accommodation requests, these practices are not per
se discriminatory.

See Kvorjak v. Maine, 259 F.3d 48, 57 (1st

Cir. 2001) (“The law does not require an employer to
‘accommodate a disability by foregoing an essential function of
the position or by reallocating essential functions to make
other workers’ jobs more onerous.’” (citation omitted); GarcíaAyala v. Lederle Parenterals, Inc., 212 F.3d 638, 648-50 (1st
Cir. 2000) (“the Act does not require employers to retain
disabled employees who cannot perform the essential functions of
their jobs without reasonable accommodation,” but an “unsalaried
leave may be a reasonable accommodation required by the ADA”).
Even if these practices are not ideal, Kahriman has not
demonstrated that they are discriminatory.

Cf. Crowley v. L.L.

Bean, Inc., 303 F.3d 387, 406 (1st Cir. 2002).10

The defendants argue that the undisputed evidence in the
record that Wal-Mart provided Kahriman with accommodations
21
10

My discussion of Wal-Mart’s official and unofficial
policies and practices for providing reasonable accommodations
does not impact the merits of Kahriman’s claim that she was
denied reasonable accommodations during the limitations period.
Regardless of the formal or informal policies in place, an
employer’s actual treatment of a qualified employee will
determine whether the employer has satisfied its duties under
the ADA and chapter 151B to provide a reasonable accommodation
to qualified employees.

See Tobin, 553 F.3d at 136.

In this

context, I conclude only that Kahriman has not met her burden of
demonstrating that a discriminatory policy was in effect during
her employment at Wal-Mart, such that she may avail herself of
the benefits of the continuing violation doctrine to render
actionable those claims of discrimination that are otherwise
time-barred.

Accordingly, I will grant the defendant’s motion

for summary judgment on this issue.

Kahriman may not pursue

demonstrates that Wal-Mart did not have a discriminatory policy
or practice in place. That Kahriman may have received some
accommodations for lifting, including a lifting belt from a
member of the personnel department, does not, however, mean that
those accommodations were necessarily reasonable as the ADA
defines the term, or that Wal-Mart engaged in an interactive
process with Kahriman to identify them. Indeed, the core
remaining dispute between the parties is whether Kahriman
requested and received reasonable accommodations under the ADA
and chapter 151B.
22

liability or damages for any alleged acts of discrimination that
occurred prior to August 22, 2009.11
C.

Kahriman’s Termination
The defendants also seek summary judgment on any

discriminatory termination claims Kahriman may have under the
ADA and chapter 151B in Counts I, II, and IV of her complaint.
The three-part burden-shifting test articulated by the
United States Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), provides the framework for evaluating this
claim.

First, the plaintiff must establish a prima facie case

of discrimination.

See Rodriguez-Torres v. Caribbean Forms

Mfr., Inc., 399 F.3d 52, 58 (1st Cir. 2005).

In this case,

Kahriman must establish “that (1) [s]he suffers from a
disability or handicap, as defined by the ADA and Chapter 151B,

Kahriman correctly observes that even if she cannot recover
for time-barred acts of discrimination, she may still introduce
evidence of such acts as “background evidence” in proving her
timely discrimination claims. See Ocean Spray, 808 N.E.2d at
269-70 (“evidence of an employer’s previous responses or
inaction to an employee’s request for accommodation is relevant
as background evidence to determine whether subsequent actions
by the employee should be understood as requests for
accommodation, and whether the employer’s response to a
subsequent request meets the ‘employer’s obligation to
participate in the interactive process’” (citation omitted)).
But such “background evidence” will be subjected to curative
instructions and will not be permitted to distract from the
jury’s necessary focus on alleged acts of discrimination
occurring on or after August 22, 2009.
23
11

that (2) [s]he was nevertheless able to perform the essential
functions of [her] job, either with or without reasonable
accommodation, and that (3) [the defendants] took an adverse
employment action against [her] because of, in whole or in part,
[her] protected disability.”

Tobin, 433 F.3d at 104; see Ríos-

Jiménez v. Principi, 520 F.3d 31, 40-41 (1st Cir. 2008)
(articulating same elements as in Tobin and adding that
plaintiff must also prove that “the employer, despite knowing
about the disability, did not acquiesce to a request for a
reasonable accommodation by the employee”).
If Kahriman creates an inference of discrimination, “the
burden of production shifts to the defendant to articulate a
legitimate non-discriminatory reason for its action.”
Rodriguez-Torres, 399 F.3d at 58 (citing McDonnell Douglas, 411
U.S. at 802).

If the defendants offer such a reason, supported

by credible evidence, Kahriman “must then demonstrate that the
defendant’s proffered reason was pretext for discrimination.”
Id. (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 146-47 (2000)).

While the defendants have moved for

summary judgment on this issue, “[t]he ultimate burden of
proving unlawful discrimination rests at all times with
[Kahriman].”

Tobin, 433 F.3d at 105.

In conducting this

analysis in the summary judgment context, it is not necessary to
24

follow with precision the shifts in production burdens; instead,
the focus is “on whether the evidence as a whole is sufficient
to make out a jury question as to pretext and discriminatory
animus.”

Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535

(1st Cir. 1996); see Mesnick v. Gen. Elec. Co., 950 F.2d 816,
825 (1st Cir. 1991).
For the purposes of this motion, the defendants assume that
the plaintiff could make a prima facie case of discrimination
through termination, which may be considered an adverse
employment action.

As a “legitimate, non-discriminatory reason”

for the termination, the defendants assert that they received a
note from Kahriman’s physician indicating that she was unable to
work at all, and therefore deemed Kahriman to have terminated
her employment voluntarily.

If Wal-Mart did receive such a

note, Weir – Wal-Mart’s 30(b)(6) witness – testified, it would
have been Wal-Mart’s procedure to interpret the note as “the
associate . . . telling us that they’re not able to work, and so
we would terminate.”

An employee who is unable to go to work is

by terms unable to perform the essential functions of her job,
and this can constitute a legitimate reason for termination.
See Ríos-Jiménez, 520 F.3d at 42; see also Staffier v. Sandoz
Pharm. Corp., 888 F. Supp. 287, 292 (D. Mass. 1995) (plaintiff’s
lack of medical clearance to return to work when positions were
25

available was legitimate reason for defendant not to hire
plaintiff); McMillion v. Mollenhauer, No. 3:12-CV-673-TLS, 2014
WL 6809017, at *10 (N.D. Ind. Dec. 2, 2014) (“her inability to
work would constitute a legitimate, non-discriminatory reason to
terminate her employment”); Andrews v. Staples the Office
Superstore East, Inc., No. 7:11CV00037, 2013 WL 3324227, at *14
(W.D. Va. July 1, 2013) (“[defendant] has successfully
articulated a ‘legitimate, nondiscriminatory reason for the
adverse employment action’—that [plaintiff] could not work
during the busiest period because her doctor told her she could
not work in the copy center or at the check-out area.”).
Kahriman argues that the factual record does not support
the inference that Wal-Mart possessed the purported physician’s
note at the time it terminated her employment, and accordingly
argues that Wal-Mart has not offered affirmative proof that this
was the real reason for her termination.12

This creates a

genuine dispute whether the reason for Kahriman’s termination

Kahriman’s position is supported by Weir’s testimony, in which
she stated that the note did not appear in Kahriman’s medical
file or attached to the exit interview form, at least as she
reviewed those documents during her deposition. Weir testified
that if Kahriman had given a doctor’s note to a manager or to
the personnel department, it would have gone in her medical
file. However, in Weir’s review, Kahriman’s personnel file did
not contain any of the medical records or doctor’s notes at
issue in this case.
26
12

was the receipt of the physician’s note stating she was “unable
to work period.”

See Wheelock Coll. v. Mass. Comm’n Against

Discrimination, 355 N.E.2d 309, 314 (Mass. 1976) (employer “must
produce credible evidence to show that the reason or reasons
advanced were the real reasons”).

But this dispute is

immaterial.
The plaintiff bears the twofold burden of proving “that the
stated reason behind the adverse employment decision is not only
a sham, but a sham intended to cover up the proscribed type of
discrimination.”

Laurin v. Providence Hosp., 150 F.3d 52, 58

(1st Cir. 1998).

Even if a reasonable fact finder could

conclude that Wal-Mart had not actually received the physician’s
note, Kahriman has not pointed to any evidence that would permit
a fact finder to conclude that her ultimate formal termination
was discriminatory.

Cf. Feliciano de la Cruz v. El Conquistador

Resort & Country Club, 218 F.3d 1, 8 (1st Cir. 2000); Thomas,
183 F.3d at 64 (“even the most blatant unfairness cannot, on its
own, support a Title VII claim”).

Kahriman, who concededly

failed to report for work, has not carried her burden of
presenting evidence permitting an inference that Wal-Mart was
“dissembling to cover up a discriminatory purpose.”
U.S. at 147.

Reeves, 530

There is a plausible, legitimate reason for her

formal termination, regardless of whether it was made known to
27

Wal-Mart at the time by the physician’s note.13

See McKennon v.

Nashville Banner Pub. Co., 513 U.S. 352, 359 (1995) (discussing
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
284-287 (1977)).

Accordingly, I will grant the defendant’s

motion for summary judgment as to any traditional discriminatory
termination claim under Counts I, II, and IV of the complaint.
Granting summary judgment for the defendants on a
traditional termination claim, however, does not preclude
Kahriman from recovery.

Kahriman has alleged, at a minimum,

that the defendants failed to provide her with a reasonable
accommodation; this remains a possible basis to hold Wal-Mart
liable under the ADA and chapter 151B, and Devuono liable under
chapter 151B.

See Carroll v. Xerox Corp., 294 F.3d 231, 237

(1st Cir. 2002) (plaintiff can make prima facie case of
discrimination by showing that employer “despite knowing of
[employee’s] alleged disability, did not reasonably accommodate

According to the undisputed facts, Kahriman was on unpaid
leave from September 23, 2009 until February 4, 2010, the date
of her official termination. This leave period of over four
months clearly exceeds the twelve weeks of unpaid, job-protected
leave afforded by the Family and Medical Leave Act (FMLA). See
29 C.F.R. § 825.200. It is well-settled that an employer need
not provide an indefinite leave of absence as a reasonable
accommodation. Russell v. Cooley Dickinson Hosp., Inc., 772
N.E.2d 1054, 1064 (Mass. 2002) (collecting cases). Kahriman’s
exhaustion of FMLA leave and inability to return to work would
be a legitimate reason for terminating her employment.
28
13

it”).

Granting summary judgment for the defendants on this

issue simply narrows the potential bases of liability to be
presented at trial.
Kahriman also suggests a constructive discharge claim as a
basis for liability.

In essence, Kahriman argues that the

defendants’ disregard of her requests for accommodation through
its policies and actions, and the statements of Devuono and
other supervisors that she should look for another job if she
could not perform her responsibilities, rendered her working
conditions intolerable, caused her injury, and rendered her
totally disabled, such that she was constructively discharged
from her employment.
A constructive discharge claim typically requires the
plaintiff to have resigned, and Kahriman has stated explicitly
that she did not formally do so.

See Penn. State Police v.

Suders, 542 U.S. 129, 133 (2004) (to establish constructive
discharge, plaintiff “must show that the abusive work
environment became so intolerable that her resignation qualified
as a fitting response”).

However, the First Circuit recognizes

a form of constructive discharge “when an employer effectively
prevents an employee from performing his job.”

Sanchez v.

Puerto Rico Oil Co., 37 F.3d 712, 719 (1st Cir. 1994); see Vega
v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1st Cir. 1993)
29

(constructive discharge can result from employment actions that
“result in work so arduous or unappealing, or working conditions
so intolerable, that a reasonable person would feel compelled to
forsake his job rather than to submit to looming indignities”);
see also Hurley-Bardige v. Brown, 900 F. Supp. 567, 572-73 (D.
Mass. 1995) (“the First Circuit adheres to a more lenient
standard under which an employee need only prove that a
reasonable person would have resigned as a result of workplace
conditions.”).
Although in some cases, constructive discharge is a means
of proving termination, in others — such as where the end result
is not termination but an inability to perform one’s job, or to
be forced to function in a job vastly different from or inferior
to the one the employee previously had — it may be a means to
assert a discrete claim different from traditional
discriminatory termination.

Cf. Fisher v. Town of Orange, 885

F. Supp. 2d 468, 477 (D. Mass. 2012) (acknowledging different
requirements for stating constructive discharge claim versus
discriminatory termination claim); Luciano v. Coca-Cola Enters.,
Inc., 307 F. Supp. 2d 308, 320 (D. Mass. 2004) (“Alleging
constructive discharge [as opposed to actual discharge] presents
a ‘special wrinkle’ that amounts to an additional prima facie
element”).

Kahriman’s constructive discharge claim is
30

inextricably linked to her failure to accommodate claims, which
cannot be resolved on summary judgment, and is also linked to
the Faragher-Ellerth defense the defendants have preserved in
response to such claims.

See Faragher v. City of Boca Raton,

524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524
U.S. 742 (1998); Chaloult v. Interstate Brands Corp., 540 F.3d
64, 73-74 (1st Cir. 2008) (under Faragher-Ellerth defense,
employer will not be subject to vicarious liability for conduct
of supervisor if “its own actions to prevent and correct
harassment were reasonable” and “employee’s actions in seeking
to avoid harm were not reasonable”).

In this case, the evidence

of record makes it possible to separate the constructive
discharge claim from the traditional discriminatory termination
claim.

Accordingly, Kahriman may pursue the constructive

discharge claim.
IV. CONCLUSION
For the reasons set forth above, I GRANT the defendants’
motion for partial summary judgment, Dkt. No. 54, except to the
extent that the plaintiff may pursue a constructive discharge
claim.
/s/ Douglas P. Woodlock______
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT JUDGE
31