Potentially Embarrassing Reassignment Was Not Failure to Accommodate

Employee feared that customers would mock her in a new position

By Jeffrey L. Rhodes Apr 20, 2016
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Wal-Mart did not fail to accommodate a stockroom worker with multiple sclerosis by reassigning her to a night cashier position, even though the worker feared she would have difficulty and face embarrassment in performing cashier duties, the 8th U.S. Circuit Court of Appeals ruled. 

Kathy Kelleher began working for Wal-Mart in 1995 in its Dubuque, Iowa, store. In 1997, she was assigned as a stocker for the overnight third shift. Her duties included climbing a ladder to stock shelves, and she could be assigned to different areas of the store. That same year, Kelleher was diagnosed with multiple sclerosis (MS), and verbally notified her work supervisors that she could no longer climb ladders. 

From 1997 through 2011, Wal-Mart accommodated Kelleher’s verbal request and she did not have to use a ladder. During this time period, Kelleher also submitted other work restriction requests that Wal-Mart granted. In 2006, Kelleher submitted an accommodation request to take time during her shift to take medicine, which was granted. In 2009, Kelleher requested an additional 15-minute break. The local market HR manager recommended that this request be denied, and that Kelleher be reassigned to another position because she could not use a ladder.

Store management nevertheless granted the request, and continued to employ her as a stocker.

In January 2011, Kelleher sought leave for an appendectomy, and upon return submitted a request for additional accommodations. These included permanent restrictions of no overhead lifting, no climbing of ladders, no pulling of pallets and a 10-pound weight-lifting restriction.

The HR coordinator at Kelleher’s store rejected these restrictions, informing Kelleher that the stocker position required moving, lifting and carrying merchandize of up to 50 pounds, and pulling materials. In response, Kelleher had her doctor change the restriction to only prohibit climbing of ladders and working in extreme hot or cold conditions.

In June 2011, Kelleher submitted a request for a second extra 15-minute break. The store preliminarily granted the request but, because accommodation requests became centralized in 2010, had to submit the request to corporate headquarters. With this request, Kelleher submitted a doctor’s note stating that she could not stand for 45 minutes before needing a 3-minute break, she could not lift over 10 pounds, she could not lift overhead, she could not walk over 300 feet, she could not climb ladders and she could not work in temperature extremes. While the request was being submitted to corporate, the store allowed Kelleher to work in the cereal aisle.

In October 2011, Accommodations Services Center Manager Kirk Hancock in corporate headquarters reviewed Kelleher’s request and decided to deny it. He sent a letter to the store stating that Kelleher was to be placed on unpaid personal leave for up to 90 days while Wal-Mart tried to find a suitable reassignment within her work restrictions. The store did not receive the letter and continued to employ her as a stocker until January 21, 2012, when Hancock sent a second letter.

In that second letter, Hancock stated that Kelleher should take Family and Medical Leave Act or personal leave and apply for positions within her work restrictions. The store manager, Robert Wallace Harding, received the second letter and instructed the store’s HR manager, Jeri Barnhart, to find a position that Kelleher could perform so that she would not be terminated. Barnhart and Harding determined that the position of overnight cashier would work best because it did not require ladder use and was less physically strenuous than stocking, and included a 20 cents/hour raise. It included many of the same duties as the stocker position, and only required operating the cash register when the store was unusually busy.

Kelleher did not want to move to an overnight cashier position, fearing that customers would make comments about her, and that she would have difficulties performing the position because of her speech and eyesight—common symptoms with MS. She also believed that co-workers resented her, and that her annual performance rating and pay raise had been decreased because of her requested accommodations.

The 8th Circuit found, however, that her transfer to a new position was not an adverse employment action because she did not present any medical evidence that the duties of the position would be difficult for her. Kelleher also did not present any evidence that as a cashier, she was actually subject to harassment or comments by customers. In addition, the court found that Wal-Mart had not retaliated against Kelleher because her decreased ratings were a result of unresolved timeliness issues, and because the manager who gave her the reduced rating was not aware that she submitted accommodation requests.

Kelleher v. Wal-Mart Stores Inc., 8th Cir., No. 15-2105 (March 31, 2016).

Professional Pointer: When reassigning an employee with a disability, an employer should first seek a position within the employee’s comfort level and skill set. If that is not possible, the accommodation may still be reasonable unless the new position results in harassing comments or medical difficulties.

Jeffrey L. Rhodes is an attorney with Doumar Martin PLLC in Arlington, Va.

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