Our blog entry of the day reminds me of the situation where a team wins the football game but loses a key player in the process. I thought of that when reading EEOC v. Walmart Stores East, L.P., here, decided by the Seventh Circuit on August 27, 2024. As usual, the blog entry is divided into categories, and they are: facts; Walmart’s knowledge of plaintiff’s disability and the interactive process; sufficiency of evidence for punitives and compensatory damages should not be reduced; need to revisit the district court’s injunctive relief order; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

The person the EEOC went to court for, Marlo Spaeth (referred to in this blog entry as plaintiff for simplicity purposes), has Down syndrome. She spent 15 years working for Walmart on the 12 PM to 4 PM shift typically working up to four days per week, and never had any performance problems. In fact, over that time, plaintiff earned positive annual performance evaluations and steady raises. In none of her reviews was plaintiff cited for attendance problems.

 

November 2014, Walmart’s home office in Bentonville, Arkansas, issued a directive that managers were to cease making manual adjustments to computer-generated staff work schedules in the absence of a business justification for doing so. The computerized work schedules were intended to ensure that staffing met the needs of the store based on customer traffic patterns. Prior to this announcement, store managers had possessed the discretion to alter such schedules as they saw fit: indeed, managers at the Manitowoc store had exercised this discretion in Spaeth’s case in order to maintain her regular noon to 4:00 p.m. work schedule. (That modified schedule had never presented a problem for the domestics department to which Spaeth was assigned so far as Personnel Coordinator Becker was aware. R. 245 at 129, 131–32.) Under the new regime, although it was still possible to manually alter a computer-generated work schedule, managers no longer had the discretion to make such changes unilaterally; any such adjustments were subject to “a strict approval process.” R. 247 at 141. Moreover, if an employee’s declared work availability (as disclosed on a form that employees were required to complete) did not match the scheduling generated by the computer system, he or she was given no hours at all. This very thing happened to Spaeth in the immediate aftermath of the policy change: Her work availability form (completed in 2006) indicated she was available only from 12:30 to 4:00 p.m.3, and the computer did not schedule her for any shifts. When Spaeth complained, she was advised that she would now need to accept a 1:00 to 5:30 p.m. shift, which she did.

 

Persons with Down syndrome have a great difficulty of adjusting to changes. Accordingly, plaintiff had incredible difficulties in adapting to her new schedule. She frequently expressed to Walmart employees a desire to return to road schedule. Her work performance suffered significantly and she would clock out before her time ended on the new schedule. Eventually, Walmart terminated her for attendance issues and had her escorted from the store. After the termination, plaintiff’s sister and plaintiff’s mother subsequently met with several managers to discuss plaintiff’s termination. At those meetings, plaintiff’s sister expressly invoked plaintiff’s right to accommodation under the ADA and asked that plaintiff be given her job back and restored to her old work schedule. Walmart managers in attendance understood that they were asserting that plaintiff should have been given a schedule accommodation but was not. They also interpreted plaintiff’s sister’s remarks as a threat that the family intended to file suit if plaintiff was not reinstated and given her schedule back. Walmart then conducted an investigation and sustained the termination. As a result, the scheduling accommodation request was never explored in any detail.

 

A four day trial resulted in plaintiff receiving an award of $150,000 in compensatory damages and $125 million in punitive damages. The District Court reduced the punitive damages award to $150,000 in order to bring the total award in line with the ADA’s damages $300,000 for large employers. The court also awarded equitable relief in the form of $44,757.80 in back pay, $5978.63 in prejudgment interest, and $68,926.60 for tax consequences. The EEOC filed a motion asking that the court order the plaintiff reinstated to her position and also requested a variety of other injunctive measures pertaining to Walmart’s disability related policies and practices. The District Court agreed to order the plaintiff reinstated and also to order that Walmart contact plaintiff’s guardian regarding any future coaching, disciplinary, or other accommodation issues. The court declined to order the additional forms of injunctive relief requested by the EEOC that were aimed at preventing a recurrence of what happened to the plaintiff.

 

II

Walmart’s Knowledge of Plaintiff’s Disability and the Interactive Process

 

  1. Walmart knew plaintiff had a disability.
  2. That plaintiff had Down syndrome was obvious to Walmart’s managers and they said as much at trial.
  3. When plaintiff’s schedule changed, plaintiff exhibited immediate and obvious difficulties in complying with the new schedule. After 15 years of reliable work attendance, plaintiff was suddenly clocking out hours early, expressing fears that she would miss her bus or her dinner, and on multiple occasions with absent altogether without notice. When scolded about not working her new schedule, plaintiff repeatedly expressed confusion, insisting that her schedule was the old schedule and asking that she be restored to that schedule. A reasonably astute manager, having in mind the prior challenges of the plaintiff and experiencing handling new duties, might have considered whether her inability to adapt to the new schedule could be due to her Down syndrome.
  4. The jury could also found that any doubts on whether the difficulties in adjusting to her schedule were due to her disability were resolved when plaintiff’s sister, both before and after her discharge, expressly advised Walmart managers that the plaintiff could not adapt to the new schedule because of her disability.
  5. While Walmart was never given a Dr.’s note or other medical evidence supporting plaintiff’s sister assertions, the critical point is that Walmart never asked. Reviewing the evidence, the jury could have found that plaintiff and plaintiff’s sister have requested a schedule accommodation for plaintiff’s disability. At that point, Walmart would have been within its rights to act for medical evidence backing up the notion that the plaintiff required in the combination because of her Down syndrome, but things never progressed that far as Walmart dismissed plaintiff’s requests out of hand. If any of Walmart’s managers had asked plaintiff’s sister to supply such evidence and none was forthcoming, Walmart might have a point, but that isn’t what happened.
  6. Multiple cases within the Seventh Circuit have held that when clarification is needed as to the nature of an employee’s disability or the particular accommodation required, it is the employer’s responsibility to solicit that information from the employee. After all, Walmart knew better than anyone else what information it needed to evaluate plaintiff’s request for a schedule accommodation.
  7. If Walmart needed information from plaintiff’s physician supporting the requested accommodation, it was obligated to ask for it. In fact, that is what its own accommodation policy for Wisconsin employees actually stated.
  8. “There is ample evidence in the record that Wal-Mart was on notice that a schedule accommodation for Spaeth was medically necessary, particularly once Stevenson intervened on Spaeth’s behalf to advise Wal-Mart’s managers that Spaeth’s Down syndrome made it extremely difficult for Spaeth to adapt to her new work schedule. At that point, Wal-Mart had a duty to seek out from Spaeth and her family members whatever medical documentation it needed to corroborate the medical need for an accommodation and to explore what type of accommodation would be suitable.” (This particular paragraph is intentionally a direct quote from the opinion for reasons that will be explained in our thoughts/takeaways section. Also, Wal-Mart used to be spelled that way but has since changed to Walmart).

 

 

III

Sufficiency of Evidence for Punitives and Compensatory Damages Should Not Be Reduced

 

 

  1. Plenty of evidence existed that Walmart was recklessly indifferent to plaintiff’s statutory rights as an individual with a disability. See the rest of this section.
  2. Plaintiff’s sister intervened and told Walmart’s managers of the link between plaintiff’s disability and her trouble with the new schedule.
  3. Even after plaintiff’s mother and sister met with Walmart managers following plaintiff’s discharge and invoked her right to a schedule accommodation under the ADA, Walmart still did nothing to address the possibility of an accommodation.
  4. Walmart did not consider given what it was hearing from plaintiff’s family members (plaintiff’s disability may have contributed to her failure to show up for work and to her pattern of leaving work early). It also did not reconsider its rationale for discharging plaintiff in light of that information.
  5. Walmart did not ask plaintiff’s family for corroboration from a physician if that was what was needed.
  6. Walmart did not meaningfully consider whether it would have been feasible to grant plaintiff the scheduling accommodation she and her family members have requested. Instead, Walmart limited its post-discharge investigation to the question of whether plaintiff was in fact guilty of multiple attendance infractions despite warnings and, once it answered that question in the affirmative, deemed the discharge decision valid and considered the matter closed.
  7. Walmart personnel cut off communications with plaintiff’s family after the post-discharge meeting despite plaintiff’s sister invocation of the ADA and plaintiff’s right to an accommodation at the meeting.
  8. Walmart’s national ethics manager indicated that the managers at Walmart’s store that employed the plaintiff had been too lenient with plaintiff’s attendance infractions.
  9. In deciding whether compensatory damages should be reduced, one has to look at whether the jury’s verdict was rationally related to the evidence and also whether the award was roughly comparable to other awards made in similar cases.
  10. Given plaintiff’s disability, she had a limited ability to put into perspective the company’s decision to terminate her. Therefore, the jury might have found that plaintiff’s disability magnified her emotional injury, a viewpoint supported by the testimony given at trial by others.
  11. While it is true that plaintiff’s mother died not long after her termination and that may have been exacerbated her emotional injuries, emotional injuries often have multiple causes. That said, the jury was entitled to infer that Walmart’s decision to discharge the plaintiff was a major cause if not the primary cause of her resulting depression. For example, testimony showed that plaintiff covered her face whenever she saw a Walmart commercial.
  12. The award was also roughly comparable to compensatory damages awards in other cases. Multiple witnesses, including a medical doctor, established that plaintiff experience significant and lasting emotional distress and depression as a result of the loss of her job. Comparable cases have resulted in similar if not greater awards.

 

 

 

IV

Need to Revisit the District Court’s Injunctive Relief Order

 

  1. The trial court incorrectly wrote off all seven of the injunctions requested by the EEOC as “obey the law,” injunctions, particularly where some of them (including the provision requiring the company notify employees of the verdict and train its supervisors and managers regarding the propriety of schedule accommodations), related specifically to the type of misconduct that Walmart committed and are aimed at preventing a recurrence.
  2. There were at least two shortcomings in the way Walmart managers handled plaintiff’s request for reinstatement of her original work schedule. First, store personnel utterly failed to treat the request as a request for an accommodation and initiate the constructive give-and-take process that the ADA, case law, and Walmart’s own policies require, even after plaintiff’s sister alerted store manager to the connection between plaintiff’s disability and her difficulties in complying with her new work schedule. Second, Walmart’s manager were evidently under the impression that long-term schedule modifications could not be granted to an employee, a perspective arguably consistent with the company-wide directive issued to managers in 2014 that the computer generated schedules not be modified except for business reasons.
  3. While some of the circumstances were unique to the plaintiff, other circumstances were not-including the company’s unwillingness to entertain the possibility of a long-term schedule accommodation. While Walmart now says that its disability policies allow for long-term schedule accommodation, the contrary position they took at trial certainly presents the possibility that other employees might be denied such an accommodation if sought.
  4. The shortcomings of Walmart’s response to plaintiff’s request for a schedule accommodation raises the possibility that this may have been more than an isolated incident. Walmart is a national employer with over 1 million workers on its payroll. Accordingly, it is unlikely that the plaintiff would be the first or the last employee with a disability who might need a work schedule accommodation but who also might have difficulty invoking their rights under the ADA.

 

 

V

Thoughts/Takeaways

 

  1. The reason why I thought this case reminded me of the situation where a team wins a game but loses a key player is because of the court’s discussion of “medical necessity,” when it comes to reasonable accommodations. Regarding the court’s discussion of, “medical necessity” with respect to accommodations, there is absolutely no support in the applicable ADA statutes or in the final implementing regulations of either of EEOC or the DOJ for such a principal. On the employment side, the statute itself says it is discrimination to not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individualwith a disability who is an applicant or employee, unless an undue hardship is present. 42 U.S.C. §12112(b)(5)(A). 29 C.F.R. §1630.9(a) says that reasonable accommodations must be made to the known physical or mental limitations of an individual with a disability unless an undue hardship is present. Nowhere in either place does the term “medical necessity,” appear. Further, if you go beyond the employment world of the ADA to the world of accessing nonfederal governmental entities and to the world of accessing place of the public accommodations, you don’t see “medical necessity,” there either. For example, both the final implementing regulations for Title II and Title III have auxiliary aids and services requirements. They both demand that those services and aids be provided where necessary to ensure effective communication with individuals with disabilities. See 28 C.F.R. §§35.160(b)(1), 36.303 Outside of the effective communications sphere, the final implementing regulation for both Title II and Title III have very similar regulations with respect to the need to modify policies, practices, or procedures. Both of those regulations talk about whether they are necessary to allow a person with disability to access a place of public accommodations in various ways, or whether they are necessary in order for a person with the disability to avoid discrimination by a nonfederal governmental entity. See, 28 C.F.R. §§35.130(b)(7)(i), 36.302(a). You can be sure that defense lawyers will push for a “medical necessity,” requirement when it comes to reasonable accommodations. I have already seen a defense oriented blog make the statement that “medical necessity,” is a requirement when it comes to reasonable accommodations. It simply isn’t so. To require it to be so, would severely limit the congressional intent of the scope of the ADA in addition to it not being supported by either the statute or any of the final implementing regulations of either the EEOC or the DOJ. The language used by the court also seem to suggest that unnecessary medical inquiries can be made, which is not the case. So, the offending paragraph to be accurate with the statutory and regulatory provisions of the ADA should have read (the bolded language is my thoughts on what should have been changed for accuracy sakes from what appears in the opinion):

“There is ample evidence in the record that Wal-Mart was on notice that a schedule accommodation for Spaeth was related to her disability, particularly once Stevenson intervened on Spaeth’s behalf to advise Wal-Mart’s managers that Spaeth’s Down syndrome made it extremely difficult for Spaeth to adapt to her new work schedule. At that point, Wal-Mart had a duty to seek out from Spaeth and her family members the medical documentation necessary to corroborate the need for an accommodation and to explore what type of accommodation would be suitable.”

 

  1. Magic words are not required to activate the interactive process as we have talked about numerous times before, such as here. Of course, the closer a plaintiff can get to magic words the better off they are. In this case, magic words were used and that may have been a factor in the court’s upholding the punitive damages award.
  2. Legislation has been introduced to get rid of the statutory damages caps. I don’t see any of that happening before the election. Whether anything happens after the election will inevitably depend upon election results.
  3. Employers are always asking for litigation if they take away an accommodation that is working for a particular employee.
  4. Remember the do’s and don’ts of the interactive process, which we discussed here.
  5. It is the employer’s responsibility to seek clarification of any reasonable accommodation request and not the employee.
  6. In Title I cases, punitive damages are a possibility.
  7. This court says that to find emotional injuries, it is sufficient for plaintiff to show that the termination was a major cause of those emotional injuries. Emotional causes often have multiple causes and termination being a sole cause is simply not necessary to recover emotional injuries.
  8. “Obey the law,” injunctions are more favorably thought of when they are specifically related to the underlying facts at issue.
  9. The Job Accommodation Network had just come up with a tool whereby anyone can go online to try and figure out what kind of an accommodation might work in various situations. Of course, it isn’t a substitute for legal advice but nevertheless could be helpful. Before this tool, I would just call them up and asked for their opinion. I could see why this tool could be really useful and more efficient, especially if the search engine is top-quality. Keep in mind, I have not tried the tool out myself yet. It can be found at https://askjan.org/sitsol/index.cfm .
  10. I do not see any “not for publication,” notice on the opinion. So, this very well may be a published opinion. If so, that makes the discussion in §V(1) of this blog entry even more significant.
  11. ADA training should be conducted by knowledgeable individuals (it is something that I do quite a bit up in my practice), and the training should not be a one-off.