Employers can offer a variety of accommodations to disabled employees and still be sued for violation of the Americans with Disabilities Act (ADA). Such was the case in Kelleher v. Wal-Mart Stores, Inc. The U.S. Court of Appeals for the Eighth Circuit was tasked with deciding whether, when an employee was transferred to a new position as an accommodation, it was an adverse action.

Requests made, solutions offered

The employee was an overnight stockroom worker at a retail store. Her job description included such requirements as ladder climbing, overhead lifting, and lifting, pulling and carrying merchandise of up to 50 pounds. The employee was diagnosed with multiple sclerosis and verbally notified her supervisor that she could no longer climb ladders. The employer accommodated her by eliminating this requirement from her job duties. The employee then requested other accommodations, such as extra time off during her shift to take her medication, and an extra 15 minute break. The employer accommodated these requests for 14 years. 

Then the plaintiff took leave to have an appendectomy. When she returned to work she submitted a request for additional permanent accommodations, including no overhead lifting, no ladder climbing, no pulling of pallets and no lifting anything over 10 pounds. The Human Resources coordinator for the store rejected her request and informed the employee that the stocker position required moving, lifting and carrying merchandise of up to 50 pounds. In response, the employee had her doctor change the restrictions to only prohibit climbing ladders and working in extreme hot or cold conditions. The employer accommodated these new restrictions.

A few months later, the employee requested an additional 15 minute break, which the employer accommodated. However, due to a corporate policy change, the employee was required to submit her accommodation requests to corporate headquarters. When she did so, she also submitted a doctor’s note stating that she couldn’t: 

• Stand for 45 minutes before needing a break,
• Lift anything over 10 pounds,
• Lift overhead, 
• Walk more than 300 feet, and 
• Climb ladders.

During the time that corporate was reviewing the employee’s accommodation request, the store assigned her to be a stocker in the cereal aisle. Corporate then decided to deny the employee’s request and advised the store to place her on unpaid leave while it tried to find a reassignment within her work restrictions. But the store didn’t follow corporate’s direction. The employee continued to work in the cereal aisle until the store transferred her to an overnight cashier position. This position was less strenuous than the stocker position and paid more money per hour. 

Employee rejects new plan

Unfortunately for her employer, the employee didn’t want the cashier position. She feared that customers would comment about her condition and that she wouldn’t be able to perform the job duties because of her speech and eyesight problems. The employee filed a claim against her employer alleging disability discrimination, failure to continue to accommodate, retaliation and harassment. 

She claimed that her performance reviews indicated retaliatory treatment because she had received top ratings in her earlier performance reviews. However, after she submitted her accommodation requests to corporate, she received lower ratings. She also stated that, after she submitted the accommodation requests, members of the store’s management began harassing her by rolling their eyes, forcing her to work alone and giving her difficult assignments as well as more work than other employees. The employee contended that the store held her to a higher standard than its other workers. 

The trial court granted summary judgment in favor of the employer on all claims. The employee appealed.

Not adverse

The appellate court affirmed, holding that transferring the employee wasn’t an adverse employment action. The employee’s fears of ridicule were insufficient to establish a violation and she didn’t present any evidence that as a cashier she was subjected to comments or harassment by customers. What’s more, the employee failed to present medical evidence that she couldn’t perform the job duties of a cashier. Therefore, she couldn’t establish that the transfer wasn’t a reasonable accommodation.  

As for the employee’s retaliation claim, the court found that the employer had not retaliated, because the lower performance ratings were a result of the employee’s timeliness issues. The manager who reviewed her performance didn’t know about her accommodation requests. The harassment claim also failed because the employee didn’t identify specific discriminatory statements by her employer. Eye rolls and looks may be unpleasant, the court stated, but they aren’t sufficiently severe to affect the terms, conditions or privileges of employment.

Interactive process

Although the employer prevailed in this case, the disabled worker’s complaint should remind other employers to be careful when attempting to accommodate employees. Finding a suitable accommodation for an employee with a qualifying disability should be an interactive process between the employee and employer.

© 2016