Opinion
C/A 1:21-2152-SAL-PJG
08-17-2023
Edward Shoptaw, Plaintiff, v. Walmart, Inc.; Wal-Mart Stores East, LP, Defendants.
REPORT AND RECOMMENDATION
COLUMBIA, SOUTH CAROLINA UNITED STATES MAGISTRATE JUDGE
Plaintiff Edward Shoptaw filed this employment action pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the defendants' (“Walmart's”) motion for summary judgment. (ECF No. 40). Shoptaw filed a response in opposition to the motion (ECF No. 47), and Walmart filed a reply (ECF No. 52). Having reviewed the record presented and the applicable law, the court concludes that Walmart's motion should be granted.
BACKGROUND
The following facts are either undisputed or are taken in the light most favorable to the plaintiff, to the extent they find support in the record. This case arises out of an injury Shoptaw sustained while working as a stocker for Walmart, a position Walmart classifies as a “Customer Availability Process Team Associate.” Shoptaw was hired in December 2019 and his duties involved binning, unloading, and stocking inventory at Walmart's retail store in North Augusta, South Carolina. On March 7, 2020, Shoptaw injured his shoulder when he fell while pulling a heavy pallet. Shoptaw informed his manager of his injury the next day, March 8, and on March 9, Shoptaw visited a Doctor's Care near the Walmart store.
Walmart sent a letter to the Doctor's Care, encouraging the clinic to give Shoptaw work restrictions that would allow Shoptaw to take on temporary alternate duties rather than precluding him from work. (Pl.'s Resp. Ex. 4, ECF No. 47-4 at 1.) The letter included a form work status report for the clinic to complete that included an injury description and diagnosis and a list of work restrictions. (Pl.'s Resp. Ex. 3, ECF No. 47-3 at 1.) The nurse practitioner who treated Shoptaw and completed the form diagnosed Shoptaw with upper back pain and recommended that Shoptaw return to work on March 16, 2020 with restrictions, including no standing, kneeling, squatting, bending, stooping, pushing, pulling, twisting, climbing stairs or ladders, or reaching overhead. The nurse practitioner also recommended that Shoptaw be restricted to two hours per day of walking and four hours per day of grasping, squeezing, reaching, and flexing or extending his wrist. The nurse practitioner further recommended that Shoptaw refrain from lifting any object over ten pounds for more than one hour per day. Finally, the nurse practitioner recommended that the restrictions remain in effect until at least April 27, 2020, when Shoptaw was scheduled to have a follow-up appointment. Shoptaw returned the work status report to Walmart that day, which, per Walmart's policies, constituted a request for a reasonable accommodation. (Pl.'s Resp. Ex. 9, ECF No. 47-9 at 1.)
Shoptaw returned to work on March 16, 2020. Walmart placed Shoptaw on “temporary alternate duty,” assigning Shoptaw to work in the apparel department folding returned clothes, answering phones, and assisting customers. The temporary alternate duty assignment purportedly complied with Shoptaw's work restrictions.
Shoptaw was granted workers' compensation leave from March 9 to March 15.
On March 24, 2020, Shoptaw complained to a supervisor that his back hurt and that he could not perform his duties. The supervisor allowed Shoptaw to go to the doctor. Shoptaw visited the same Doctor's Care that set his work restrictions. This time, Shoptaw was seen by a physician. Shoptaw testified that while he was waiting in the exam room, he overheard the physician on the phone with the human resources manager from Walmart whose voice he recognized. (Shoptaw Dep. 63, ECF No. 47-22 at 4.) The physician declares that it was a normal occurrence for Walmart to call the Doctor's Care and ask that employees' work restrictions be reduced or removed.(Rivell Decl., ECF No. 47-12 at 1.) According to Shoptaw, when the physician examined him, the physician did not listen to his concerns that his pain was getting worse. Shoptaw testified that the physician told him that if he cannot perform his duties, he should find another job. (Shoptaw Dep. 62, ECF No. 47-22 at 4.) The physician declares that he did not recall any specifics of Shoptaw's examination. (Rivell Decl., ECF No. 47-12 at 1.) The physician completed another work status form from Walmart, noting Shoptaw's upper back pain, but indicating that Shoptaw could immediately return to work without any restrictions. (Defs.' Mem. Supp. Summ. J. Ex. J., ECF No. 40-11 at 3.)
The physician's declaration is corroborated by both the nurse practitioner who treated Shoptaw and a Doctor's Care manager from the same clinic who declared or testified that Walmart regularly called the Doctor's Care seeking to have the medical professionals remove work restrictions or disabilities for Walmart employees seeking treatment.
Shoptaw returned to work with the work status form but told a manager that he was still injured and should not have been released from work restrictions. Shoptaw was apparently returned to his original stocking duties. On March 27, that same week, Shoptaw was cited by the same manager for failing to complete an assignment-to stock aisles with products from four carts. The citation noted that the assignment should have taken three hours at most, but Shoptaw did not complete the assignment in four and a half hours. Shoptaw complained about the citation to the store manager but, according to Shoptaw, the store manager ignored his complaint. Shoptaw had received only one such citation previously-on March 7, 2020, the day he was injured-for not finishing an assignment within the time allotted for the task.
Shoptaw returned to the Doctor's Care on April 4, 2020 and was treated by the nurse practitioner who treated him originally. The nurse practitioner declares that he did not know why the physician who examined Shoptaw removed the work restrictions in his previous visit, but that Shoptaw clearly needed the work restrictions. (McCaffrey Decl., ECF No. 47-6 at 1.) The nurse practitioner recommended similar restrictions, though he increased the amount of time that Shoptaw should be allowed to stand, sit, walk, and use his arms and wrists. (Def.'s Mem. Supp. Summ. J. Ex. J., ECF No. 40-11 at 4.) The nurse practitioner continued to recommend that Shoptaw refrain from kneeling, squatting, bending, stooping, pushing, pulling, twisting, and climbing ladders and stairs, and he recommended Shoptaw not lift or carry objects over ten pounds for more than one to two hours per day. The nurse practitioner recommended the restrictions remain until at least May 14, 2020-the date of Shoptaw's next appointment.
When Shoptaw returned to work, he notified a supervisor of his restrictions. However, managers and assistant managers continued to assign work to Shoptaw that was outside of the recommended work restrictions, such as stocking materials and unloading trucks. (Shoptaw Dep. 94-97; ECF No. 47-22 at 8.) Shoptaw complained to human resources about those assignments, but he continued to be assigned duties outside of his restrictions. (Id. at 96.) Shoptaw continued to visit Doctor's Care throughout 2020, where he continued to be placed on work restrictions.(Shoptaw Dep. 80, ECF No. 47-22 at 6.) In September, Shoptaw was complaining to Doctor's Care of shoulder pain, which would later be diagnosed as a torn labrum that required surgery. (Pl.'s Resp., ECF No. 47-1 at 1.)
The record does not appear to include any records from Shoptaw's Doctor's Care appointments after April. Thus, it is unclear precisely what restrictions were in place after that time.
On December 19, 2020, one of the assistant managers told Shoptaw to unload a grocery truck. Shoptaw told the assistant manager that unloading trucks was outside of his work restrictions. The assistant manager then directed Shoptaw to work in the apparel department, but that Shoptaw had to have all of the returned merchandise put back by the end of the day, or he could “turn in his badge.” (Shoptaw Dep. 34, ECF No. 47-22 at 2.) Shoptaw interpreted the assistant manager's comment to be an ultimatum that he could either do the assigned work or quit. (Id. at 35.) Shoptaw also believed that the task would have been physically impossible for one person, especially considering that Shoptaw was still restricted from kneeling, bending, or stooping, because the returned merchandise filled and overflowed out of twenty carts and was still coming in. (Id. at 34-35.) Shoptaw asked for assistance from the assistant manager and others in the apparel department but did not receive any help. (Id. at 34.) Shoptaw turned in his badge instead of trying to complete the task, resigning his position.
The facts here are taken in the light most favorable to the plaintiff, but notably, the assistant manager testified that she never gave Shoptaw an ultimatum or assigned him to unload twenty carts of returned merchandise. (Boyd Dep., ECF No. 40-15 at 12.)
Shoptaw filed this action in the Aiken County Court of Common Pleas and Walmart removed the action to this court on July 16, 2021. In his Amended Complaint, Shoptaw raises claims of failure to accommodate and wrongful discharge in violation of the ADA.
DISCUSSION
A. Summary Judgment
Summary judgment is appropriate only if the moving party “shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party may support or refute that a material fact is not disputed by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine [dispute] of material fact.” Ballinger v. N.C. Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir. 1987) (internal quotation marks and citation omitted). A fact is “material” if proof of its existence or non-existence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257.
In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”).
B. Methods of Proof in Employment Cases
A plaintiff asserting a claim of unlawful employment discrimination may proceed through two avenues of proof. First, he may attempt directly to prove discrimination with direct or circumstantial evidence. Alternatively, when direct proof is lacking, a plaintiff may proceed under the McDonnell Douglas burden-shifting framework. See Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (holding that the McDonnell Douglas framework applies to claims brought under the ADA); but see Perdue v. Sanofi-Aventis U.S., LLC, 999 F.3d 954, 959 n.2 (4th Cir. 2021) (stating that the McDonnell Douglas burden-shifting framework does not apply to failure-to-accommodate claims, which do not require evidence of discriminatory intent). Pursuant to this framework, once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for the adverse action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010) (Title VII). The defendant's burden “is a burden of production, not persuasion.” Reeves, 530 U.S. at 142. Once a defendant meets this burden by producing affidavits or testimony demonstrating a legitimate, nondiscriminatory reason, “the McDonnell Douglas framework-with its presumptions and burdens-disappears], and the sole remaining issue [is] discrimination vel non.” Id. (internal quotation marks and citations omitted).
In other words, if the defendant meets the burden to demonstrate a legitimate, nondiscriminatory reason, the plaintiff must demonstrate by a preponderance of the evidence that the proffered reason was “not its true reason[], but [was] a pretext for discrimination.” Merritt, 601 F.3d at 294 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Accordingly, the plaintiff's burden of demonstrating pretext “merges with the ultimate burden of persuading the court that [the plaintiff] has been the victim of intentional discrimination.” Merritt, 601 F.3d at 294 (quoting Burdine, 450 U.S. at 256) (alterations in original); see also Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 319 (4th Cir. 2005) (Title VII & 42 U.S.C. § 1981). To meet this “merged” burden, the employee may prove by a preponderance of the evidence that the decision maker's affidavit is untrue or that the employer's proffered explanation is unworthy of credence. Burdine, 450 U.S. at 256.
“[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves, 530 U.S. at 148. However, “if the record conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision, or if the plaintiff create[s] only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred,” summary judgment is appropriate. Id. Accordingly, the court must evaluate “the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.” Id. at 148-49. “Notwithstanding the intricacies of proof schemes, the core of every [discrimination] case remains the same, necessitating resolution of the ultimate question of . . . whether the plaintiff was the victim of intentional discrimination.” Merritt, 601 F.3d at 294-95.
C. Walmart's Motion for Summary Judgment
1. Disability
Walmart argues that Shoptaw's ADA claims fail as a matter of law because Shoptaw cannot show that he had a disability or that Walmart had notice that of his disability. The court disagrees.
The ADA prohibits employers from discriminating against qualified individuals on the basis of disability. 42 U.S.C. § 12112. The ADA defines disability with respect to an individual as “a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1). The ADA expressly provides examples of “major life activities,” including “standing, lifting, and bending.” 42 U.S.C. § 12102(2)(A).
Walmart argues that “courts have consistently held that simple lifting restrictions do not substantially limit a major life activity.” (Defs.' Mem. Supp. Summ. J., ECF No. 40-1 at 11) (internal quotation marks omitted). In support of its argument, Walmart cites to cases from the United States Court of Appeals for the Fourth Circuit finding lifting restrictions alone are insufficient to establish that a plaintiff has a disability. See Reynolds v. Am. Nat'l Red Cross, 701 F.3d 143, 152 (4th Cir. 2012); Taylor v. Fed. Express Corp., 429 F.3d 461, 464 (4th Cir. 2005). However, those cases applied case law that has since been abrogated by the ADA Amendments Act of 2008, Pub. L. No. 110-325; 122 Stat. 3553. See, e.g., Reynolds, 701 F.3d at 151-52 (refusing to apply the ADA Amendments Act retroactively to Reynold's ADA claim that occurred in 2006). Specifically, those cases applied Supreme Court case law that strictly construed the ADA. See Toyota Motor Mfg., Ky, Inc. v. Williams, 534 U.S. 184, 198 (2002) (holding “that to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives” and that the “impairment's impact must also be permanent or long term”).
In passing the ADA Amendments Act of 2008, Congress expressly rejected the Supreme Court's narrow interpretation of who qualifies as disabled under the ADA, see Summers v. Altarum Inst., Corp., 740 F.3d 325, 329 (4th Cir. 2014); Reynolds, 701 F.3d at 150, instead directing courts to construe the definition of disability “in favor of broad coverage.” 42 U.S.C. § 12102(4)(A). Congress also directed the EEOC to revise its regulations defining “substantially limits.” Pub L. No. 110-325, § 2(b)(6); see also 29 C.F.R. § 1630.2(j)(1)(i) (“The term ‘substantially limits' shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. ‘Substantially limits' is not meant to be a demanding standard.”). In Summers, the Fourth Circuit summarized some of the EEOC's regulatory guidance, which is relevant here:
According to the appendix to the EEOC regulations, the “duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity.” [29 C.F.R.] § 1630.2(j)(1)(ix) (app.). Although “[i]mpairments that last only for a short period of time are typically not covered,” they may be covered “if sufficiently severe.” Id. The EEOC appendix illustrates these principles: “[I]f an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability.” Id.Summers, 740 F.3d at 329 (modifications in original). Consequently, the court rejects Walmart's argument that simple lifting restrictions are per se insufficient to establish that a plaintiff is disabled under the ADA.
Walmart also argues that “notes providing for temporary work restrictions are insufficient as a matter of law to give Walmart notice of any ADA-qualifying disability.” (Defs.' Reply, ECF No. 52 at 5.) Walmart argues the court's decision in Josey v. Wal-Mart Stores E., L.P., No. CA 0:11-2993-CMC-SVH, 2013 WL 5566035, at *1 (D.S.C. Oct. 8, 2013), aff'd, 566 Fed.Appx. 209 (4th Cir. 2014), supports such a conclusion. In Josey, the plaintiff was injured in a non-work-related accident and was instructed by a chiropractor to not lift more than five pounds for one week. Id. The court found that the note did not identify a physical or mental impairment that would substantially limit a major life activity, in part because it provided a restriction for only one week. Id. at *3 (agreeing with the finding in the magistrate judge's Report and Recommendation). Thus, Josey is distinguishable from Shoptaw's case because Shoptaw's restriction on lifting lasted many months. See, e.g., 29 C.F.R. § 1630(j)(1)(ix) (appendix) (“[I]f an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability. ”) (alterations omitted).
Additionally, Shoptaw has presented evidence that his injury required, in addition to a lifting restriction of no more than ten pounds for one hour per day, that he also not stand or bend at all while at work. Standing, bending, and lifting are all “major life activities” expressly listed in the ADA, 42 U.SC. § 12102(2)(A), and Shoptaw's medical providers recommended that Shoptaw should almost completely refrain from those activities. Further, the record does not make clear whether these restrictions ever expired, but, viewing the facts in Shoptaw's favor, they lasted at least through the end of Shoptaw's employment with Walmart, so for more than nine months. Under Fourth Circuit precedent following the ADA Amendments Act, a near total restriction on three major life activities for nine months is a substantial limitation, especially considering the congressional and EEOC guidance directing courts to construe the definition of disability broadly. See, e.g., Summers, 740 F.3d at 333 (finding a severe injury that prevented the plaintiff from walking for at least seven months was a substantial limitation); see also Nunies v. HIE Holdings, Inc., 908 F.3d 428, 436 (9th Cir. 2018) (finding the plaintiff's shoulder injury causing stabbing pain when he raised his arm above his chest substantially limited major life activities of lifting and working); Rowlands v. United Parcel Serv. - Fort Wayne, 901 F.3d 792, 800-01 (7th Cir. 2018) (finding the plaintiff's knee injury, which the plaintiff claimed substantially interfered with her ability to walk, stand, squat, and kneel, qualified as a disability under the ADA, even though her doctor cleared her to return to work without restrictions); Harrison v. Soave Enters. L.L.C., 826 Fed.Appx. 517, 525 (6th Cir. 2020) (stating that a jury could find that a torn ACL that prevented the plaintiff from kneeling substantially limited a major life activity). Consequently, Shoptaw has presented sufficient evidence from which a reasonable jury could find that he was substantially limited in major life activities, and thus, that Shoptaw is disabled under the ADA. Also, the record is undisputed that Walmart was given notice of that disability from the work status reports completed by the medical professionals at Doctor's Care. Accordingly, Walmart has failed to show that it is entitled to summary judgment on this basis.
However, the court again notes that the record does not include medical records from Shoptaw's Doctor's Care appointments after April. Therefore, the record is unclear on how severe Shoptaw's work restrictions were during that time.
2. Essential Functions
Walmart also argues that Shoptaw cannot show that he could perform the essential functions of his job with a reasonable accommodation. (Defs.' Reply, ECF No. 52 at 6.) The court agrees; consequently, Shoptaw cannot establish an essential element of his claims of failure to accommodate and discriminatory discharge in violation of the ADA.
Again, the ADA prohibits employers from discriminating against qualified individuals on the basis of disability, including by failing to make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual. 42 U.S.C. § 12112. To establish a failure to accommodate claim, the plaintiff must prove: (1) that he had a disability within the statutory meaning; (2) that the employer knew of his disability; (3) that a reasonable accommodation would permit him to perform the essential functions of the position; and (4) that the employer refused to make the accommodation. Perdue v. Sanofi-Aventis U.S., LLC, 999 F.3d 954, 959 (4th Cir. 2021); Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013).
As the Fourth Circuit has recently held, the McDonnell Douglas burden-shifting framework does not apply to failure-to-accommodate claims, which do not require evidence of discriminatory intent. Perdue, 999 F.3d at 959 n.2.
To establish an ADA discriminatory discharge claim, the plaintiff must produce evidence sufficient to demonstrate that (1) he was a “qualified individual” with a disability, (2) he was discharged, (3) he was fulfilling his employer's legitimate expectations at the time of discharge, and (4) the circumstances of his discharge raise a reasonable inference of unlawful discrimination. Reynolds, 701 F.3d at 150 (quoting Rohan v. Networks Presentations LLC, 375 F.3d 266, 273 n.9 (4th Cir. 2004)). A plaintiff is a “qualified individual” if he, “with or without reasonable accommodation, can perform the essential functions” of the job that he “holds or desires.” 42 U.S.C. § 12111(8).
Here, the parties agree that Shoptaw's assignment to temporary alternate duty in the apparel department was a reasonable accommodation for what both parties apparently believed was a temporary injury at that time. The ADA states that a reasonable accommodation may include job restructuring or reassignment. 42 U.S.C. § 12111; see also Elledge v. Lowe's Home Ctrs., LLC, 979 F.3d 1004, 1011 (4th Cir. 2020) (“[T]he ADA defines ‘reasonable accommodation' in a way that is illustrative rather than exhaustive . . . [and] what counts as a reasonable accommodation is not an a priori matter but one that is sensitive to the particular circumstances of the case.”). However, reassignment is an accommodation of last resort. Elledge, 979 F.3d at 1014. Here, there is no evidence in the record that Shoptaw requested permanent reassignment as a reasonable accommodation. Id. at 1013 (refusing to require an employer to offer permanent light work duty as an accommodation, especially where the plaintiff had not requested such an accommodation).
The parties spend a great deal of their briefing arguing over whether, as a matter of fact, Walmart actually provided Shoptaw with temporary reassignment to light duty or assigned him to do tasks outside of his work restrictions. (See Defs.' Mem. Supp. Summ. J., ECF No. 40-1 at 1213; Pl.'s Resp., ECF No. 47 at 25-27). But Walmart was under no obligation continue to reassign Shoptaw to light duty in the apparel department for months on end-a job for which he was not originally hired. See Elledge, 979 F.3d at 1014 (“Reassignment is unique in its potential to disrupt the settled expectations of other employees, so much so that no employer is required to reassign where reassignment would ‘bump' another employee from his position or block reasonable, longtime workplace expectations.”) (internal citations omitted); see also Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 Fed.Appx. 314, 323 (4th Cir. 2011) (“[T]he ADA does not require an employer to reallocate essential job functions or assign an employee ‘permanent light duty.' ”). And as noted above, Shoptaw does not claim that he requested to be permanently reassigned to work in the apparel department as a reasonable accommodation. See Elledge, 979 F.3d at 1013 (stating the employer could not have reasonably been expected to offer the plaintiff a permanent reduction in work, especially considering the plaintiff had not requested a permanent accommodation). Rather, the question that must be addressed is whether Shoptaw could perform the essential functions of his original job-a stocker (or “Customer Availability Process Team Associate”). See id. (“Although employers must provide reasonable accommodation to assist disabled employees in performing the essential functions of their jobs, employers do not need to change a job's essential functions or split them across multiple employees.”).
As alluded to earlier, the evidence on this point is conflicting. (Compare Shoptaw Dep. at 94-97, ECF No. 47-22 at 8 with Furse Dep. at 39-40, 52, ECF No. 40-16 at 13-14, 17 and Boyd Dep. at 43-44, ECF No. 40-15 at 11-12.)
The undisputed evidence in the record demonstrates that Shoptaw could not perform the essential functions of his original job. Shoptaw testified that his duties as a stocker were to unload merchandise from trucks, separate the merchandise by department into carts, and pull the carts to the sales floor to stock them. (Shoptaw Dep. at 22, ECF No. 40-7 at 11.) Walmart's job description of that position indicates that the job requires that the employee “grasps, turns and manipulates objects of varying size and weight; . . . reaches overhead and below the knees, including bending, twisting, pulling and stopping; [and] moves, lifts, carries, and places merchandise and supplies weighing up to 50 pounds without assistance.” (Defs.' Mem. Supp. Summ. J. Ex. G., ECF No. 40-8 at 3.) But Shoptaw's work restrictions barred him from performing those functions- specifically, lifting objects over ten pounds, reaching overhead, bending, twisting, and pulling. (Pl.'s Resp. Ex. 3, ECF No. 47-3 at 1.)
In this respect, this case is similar to the previously cited Josey v. Wal-Mart Stores E., L.P., C/A No. 0:11-2993-CMC-SVH, 2013 WL 5566035, (D.S.C. Oct. 8, 2013), aff'd, 566 Fed.Appx. 209 (4th Cir. 2014). As explained in the Report and Recommendation in that case, a stocker employed by Walmart was temporarily reassigned to work in the apparel department after an injury restricted him to light duty work, including the need to sit down while he worked. The court rejected the plaintiff's argument that a reasonable accommodation would have been for Walmart to continue to provide the plaintiff with light duty work in the apparel department, noting the plaintiff only ever submitted medical documentation showing that his injury was temporary, and that the plaintiff never requested a permanent change in his duties. Instead of analyzing whether the plaintiff's reassignment to light duty was reasonable, the court considered whether the plaintiff could perform the essential functions of his original job. The court noted that the plaintiff admitted that he needed to sit down while working and he could not perform his duties as a stocker while sitting down. Therefore, the court concluded that the plaintiff failed to put forth evidence that he could perform the essential functions of his job. Josey v. Wal-Mart Stores E., L-P, C/A No. 0:11-2993-CMC-SVH, 2013 WL 5566305, at *6 (D.S.C. Sept. 12, 2013), report and recommendation adopted in relevant part, rejected in part by Josey v. Wal-Mart Stores E., L.P., 2013 WL 5566035 at *3 (D.S.C. Oct. 8, 2013).
Here, the same basic facts compel the court to find that Shoptaw cannot show that he can perform the essential functions of his job to support his claims. While Walmart provided Shoptaw with a temporary reassignment, there is no evidence that the parties ever considered a permanent reassignment to light duty work. See Josey, 2013 WL 5566035, at *3 (“Wal-Mart is under no legal obligation to accommodate an employee by reallocating essential job functions or assigning an employee ‘permanent light duty' or by creating a new position as an accommodation.”) (internal quotations and alterations omitted). Shoptaw appears to never have requested an accommodation that would allow him to work in his original job, and Shoptaw has not suggested in his briefing that he could produce evidence that such an accommodation exists. See Lamb v. Qualex, Inc., 33 Fed.Appx. 49, 59 (4th Cir. 2002) (“The burden of identifying an accommodation that would allow a qualified individual to perform the job rests with the plaintiff, as does the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable.”) Consequently, Shoptaw fails to put forth evidence that he could have performed the essential functions of his job with a reasonable accommodation. Therefore, Walmart is entitled to summary judgment as to Shoptaw's failure to accommodate and discriminatory discharge claims.
Shoptaw argues that his failure to identify an appropriate accommodation is the result of Walmart's bad faith refusal to engage in the interactive process-specifically, Walmart's interference with Doctor's Care's treatment of Shoptaw. However, “liability for failure to engage in an interactive process depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the disabled person to perform the job's essential functions.” Wilson, 717 F.3d at 347 (quoting Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 91 (1st Cir. 2012)). Because the court has already found that Shoptaw failed to meet his burden of identifying a reasonable accommodation that would have allowed him to perform the essential functions of his job, Shoptaw is foreclosed from imputing liability to Walmart for their purported failure to engage in the good faith interactive process. See Wilson, 717 F.3d at 347 (“[A]n employer who fails to engage in the interactive process will not be held liable if the employee cannot identify a reasonable accommodation that would have been possible.”).
RECOMMENDATION
Based on the foregoing, the court recommends that Walmart's motion for summary judgment be granted. (ECF No. 40.)
Paige J. Gossett
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).