Opinion
C. A. 3:21-1646-JMC-SVH
07-06-2022
Annette Turner, Plaintiff, v. Wal-Mart Associates, Inc. and Wal-Mart, Inc., Defendants.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
In this case, a female employee sues her former employer, alleging that due to her sex, gender, and disabilities, including pregnancy-based disabilities, she was discriminated and retaliated against, her disabilities were not accommodated, and her employment was wrongfully terminated.
Annette Turner (“Plaintiff”) filed her complaint against her former employer, Wal-Mart Associates, Inc. and Wal-Mart, Inc. (“Defendants”), on May 3, 2021, alleging claims based on violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq. (“ADA”), and the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”). More specifically, Plaintiff asserts the following causes of action in her complaint: (1) pregnancy discrimination in violation of Title VII, (2) hostile work environment in violation of Title VII, (3) failure to accommodate in violation of the ADA, (4) wrongful termination in violation of the ADA, (5) hostile work environment in violation of the ADA, and (6) retaliation in violation of the FMLA. [See ECF No. 1-1].
Plaintiff additionally asserted a claim for interference with her FMLA rights and a claim for violation of the South Carolina Pregnancy Accommodation Act, but concedes in briefing that these claims are untimely. [See ECF No. 31 at 34]. The undersigned recommends the district judge dismiss these claims.
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), the case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendants' motion for summary judgment. [ECF No. 28]. The motion has been fully briefed [ECF Nos. 31, 36] and is ripe for disposition.
Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge grant Defendants' motion for summary judgment.
I. Factual and Procedural Background
A. Defendants' Relevant Policies
Defendants' attendance policy provides that absences or late arrivals to work must be reported either by calling the associate information line or by reporting online at WalmartOne. [ECF No. 28-11 at 6]. The policy further provides that each unauthorized absence will “result in occurrences/points,” and if an employee accumulates nine or more occurrences in a rolling six- month period, prior to August 16, 2019, or five or more occurrences in a rolling six-month period thereafter, that employee will be “subject to termination.” [ECF No. 31-4 (policy in effect on October 15, 2016), ECF No. 28-11 at 8 (policy in effect on August 16, 2019)]. The policy also states that if an employee needs to be absent for longer than three scheduled shifts, the employee should speak with his or her supervisor or HR representative to coordinate with Sedgwick, Defendants' third-party administrator for all leave and accommodation requests. [ECF No. 28-11 at 10, ECF No. 28-1 at 2]. The policy further clarifies:
Should your absence be related to an intermittent leave, you must also report the absence to Sedgwick within two calendar days of the absence. Failure to report the absence to Sedgwick timely will result in the intermittent leave time being denied and you may receive occurrences/points for the time missed. If extenuating circumstances prevent you from reporting an absence timely, you should contact Sedgwick to discuss .... Once you submit a[ leave of absence request (“LOA”)] to Sedgwick, you must still report missed shifts as absences until the facility receives notification from Sedgwick that an LOA has been requested ....[ECF No. 28-11 at 6, 10].
Defendants also maintain a coaching for improvement policy designed to address performance issues. [ECF No. 28-11 at 11]. This policy generally provides for three levels of disciplinary action, labelled yellow, orange, and red, to be provided prior to termination. Id. at 12. Associates may not be eligible for promotion or transfer if they have an active, or within 12 months, orange or red level coaching, absent store manager approval. Id. at 11. An associate may receive only one of each level of coaching in any 12-month period. Id. If a subsequent coaching is warranted, the associate receives a higher level of coaching. Id. Levels of coaching may be skipped depending upon a determination by the supervisor or manager of the appropriate level of coaching for the particular situation. Id.
B. Plaintiff's 2016 and 2017 Work History
Defendants hired Plaintiff in March 2016 as a part-time overnight stocker, responsible for stocking merchandise and zoning, or organizing, shelves. [ECF No. 28-3 at 3-6, ECF No. 31-57 at 25:i9-23].Her disciplinary record reveals that in 2016, Plaintiff and another associate were twice disciplined for productivity issues, first via a yellow disciplinary action from Brenda Miller (“Miller”) and then an orange disciplinary action from John Bower (“Bower”). [ECF No. 28-3 at 7; ECF No. 28-2 at 93:2-100:23].
In depositions and in other documents, Plaintiff and others reference her being a full-time worker. However, as she also testified, “I was supposed to be hired full time, that's what I was told when I started, and then considering I was working anywhere from 40 to 52 hours a week ....” [ECF No. 31-57 at 56:15-18]. Plaintiff's hiring document shows she was hired as a part-time worker. [ECF No. 28-3 at 6]. Based on the summary of hours worked by Plaintiff beginning March 2016, submitted by Defendants, and not contested by Plaintiff, Plaintiff did not consistently work 40 or more hours a week throughout her employment. [See ECF No. 28-4 at 39-41, ECF No. 31-57 at 292:22-301:24; see also ECF No. 28-15 (“Khori stated that for 2019, Annette has only averaged 34 hours”)].
Plaintiff states Miller, Donald Joly (“Joly”), and Matt Hancock (“Hancock”) were her direct-line supervisors. [ECF No. 31 at 3 n.5]. Defendants assert Miller resigned on January 12, 2018. [ECF No. 28-1 at 5].
On December 4, 2016, Plaintiff received a red disciplinary action from Christopher Rowe (“Rowe”) for productivity issues and a violation of safety/safe work practices, described as follows:
On November 27, 2016, Annett[e] had two hours in Domestics . . . At 4:16 am in the morning she was still in Domestics throwing freight and had not zoned .... She did help with customer service a few times, but still did not warrant her taking as long as she did. On November 28 Annette did not properly stack boxes on a pallet, upon bringing the pallets to the back they fell and hit her.[ECF No. 28-3 at 7]. Plaintiff denies the incident occurred as described, but testified that due to “an entire pallet of boxes collaps[ing]” on her, she “ended up with a concussion” and “twisted [her] knee.” [ECF No. 28 at 28:9-14].
Plaintiff filed a workplace ethics complaint on January 16, 2017, complaining in part about some of the disciplinary actions she had received, but also detailing numerous other incidents that had occurred prior to her filing the complaint, most presumably occurring in 2016. [See ECF No. 31-5]. In one incident, Plaintiff states that she was “on sedentary work” and could not stand much because “it causes [her] a lot of pain and [her] leg swells” due to her injuries, and Miller told her to do things beyond her capabilities, stating “so you're telling me I need two people to do one person's job?” [ECF No. 31-5 at 6]. Plaintiff responded it would be difficult for her to do the tasks assigned, but she would do her best because she “was too scared to say [she] couldn't do it.” Id.
Plaintiff has also submitted evidence that during this time, she was “coached” numerous times for “talking,” when in fact she was helping others. [ECF No. 31-5 at 7, ECF No. 31-6 (another employee stating he witnessed Plaintiff being told “to stop talking and get back to work” after she had asked him where a product went)].
Plaintiff also describes an incident in which she had an allergic reaction and/or asthma attack due “to something in cosmetics,” but Miller stated “you're gonna have to suck it up, figure something out, get some gloves and a mask because you're doing cosmetics again tonight.” [ECF No. 31-5 at 8-9, ECF No. 31-54 ¶ 5].
Plaintiff has submitted a declaration stating that “[a] couple of different times Brenda Miller put me in beauty and cosmetics even though I told her about my skin reactions and asthma issues I was having if I worked in there.” [ECF No. 31-54 ¶ 5]. Plaintiff also testified that she did not request any accommodations concerning these issues. [ECF No. 31-57 at 78:12-79:6 (Plaintiff testifying that she did not contact Sedgwick about an accommodation for allergies or asthma)].
In another incident, Plaintiff was using a knee brace and electric cart as an ADA accommodation, and Miller stated the following to her:
• “Guess I should help the handicap load her cart,” while laughing;
• “You're the handicap by the way”; and
• “Oh, look who is finally walking,” after Plaintiff had to get up from her cart.[ECF No. 31-5 at 6-7, see also ECF No. 31 at 3]. The record includes investigation into these comments allegedly made by Miller and includes the following conclusion: “Brenda denies making any comments that reporter is alleging. No witnesses to this comment. Reporter was held accountable for productivity.” [ECF No. 31-25]. Plaintiff testified, however, that “when I reported [Miller] for the harassment, they did move her to first shift, so they did do something about that, and it was-it was much better after than for a while.” [ECF No. 31-57 at 34:7-10].
In early 2017, Plaintiff submitted a complaint about Bower, Rowe, and others concerning an incident in which Plaintiff was told she was not allowed to have a cup of coffee outside of the break times, even though other employees did and even though Plaintiff, as stated in her complaint, had “been in the hospital several times in the last few months due to kidney stones and dehydration from not being permitted to have a drink when [she] needed one.” [ECF No. 31-7 at 3]. Defendants determined there was “not enough information to require an Ethics investigation.” Id. at 1.
Plaintiff testified that she did not request any accommodations concerning drinks or hydration. [ECF No. 31-57 at 252:16-253:2].
Plaintiff was granted a continuous leave of absence from March 23, 2017, through April 17, 2017, for gallbladder issues, returning with a temporary 20 lb. lifting restriction. [ECF No. 28-3 at 13, 17].
Plaintiff testified that this leave went as expected and that she did not have any complaints regarding this leave. [ECF No. 31-57 at 150:17-20].
On December 26, 2017, Plaintiff received a yellow disciplinary action from Miller for productivity for taking too long to work her pallets in health and beauty. [ECF No. 28-3 at 7]. Plaintiff testified this was related to her gallstone problems and her need to sit down, but did not indicate that she contacted Sedgwick about this issue beyond having been granted leave and a temporary lifting restriction. [ECF No. 31-57 at 102:5-23].
Plaintiff's evaluation record for 2017 dated May 10, 2017, rated her as “exceed[s] performance,” and states, “Annette is able to work anywhere in the store” and that she “has a great attitude towards []her work and fellow associates.” [ECF No. 31-1].
C. 2018 Work History
From April 2, 2018, through September 4, 2018, Plaintiff was granted continuous leave for neuropathy via a combination of FMLA leave, and once that was exhausted, non-job protected personal leave. [ECF No. 28-3 at 22, ECF No. 31-57 at 154:10-21].
In late August 2018, prior to her return to work, Plaintiff requested an accommodation from Defendants via Sedgwick, submitting a diagnosis from her physician Gary Fischbach, M.D. (“Dr. Fischbach”), for neuropathy and back issues, providing for a permanent lifting restriction with a 30 lb. lifting limit. [ECF No. 31-9 at 1, 9, 12]. On September 5, 2018, Plaintiff's request was approved as follows:
Your request to Not lift over 30 pounds has been approved. Please request team lifting assistance for items weighing over 30 pounds. The granting of your request is intended for the purpose of reasonably accommodating your medical restriction. You are still required to perform all of your position's essential functions and meet the productivity requirements set by your management team. However, your specific request to not pull pallets could not be approved because it is not medically supported by your healthcare provider.Id. at 5 (capitalization in the original, emphasis removed).
Plaintiff testified that, regarding her pallet accommodation request, she believed she spoke with her doctor about the request, but was not sure, and she did not appeal the denial regarding her pallet accommodation request, even though she knew she could. [ECF No. 31:57 at 175:7-177:4].
Upon her return to work, Plaintiff was assigned to furniture. [See ECF No 31-57 at 160:1-13, ECF No. 31-60 at 53:8-11]. Plaintiff testified that it was after her return to work in September 2018 that “issues” started with Joly. [See ECF No. 31-57 at 153:22-24, 160:7-13]. Plaintiff testified that at one point, Joly told her to stock bunk beds and a couple of tv stands, with assistance, and Plaintiff stated that when she refused, he threatened to coach her for productivity. [ECF No. 31-57 at 68:20-69:21, 160:22-16i:21]. Plaintiff also testified that although her job required her, both during this time and thereafter while pregnant, to lift more than 30 pounds and go up and down ladders, Plaintiff would not do it. Id. at 212:1-18. When asked if she would “get in trouble for not doing it,” Plaintiff testified as follows:
Plaintiff testified that Joly told her to get help from her fiance, who worked in maintenance. [ECF No. 31-60 at 69:11-21].
Most-the only time that I got in trouble for not doing it was when I was doing furniture, and Don told me that if I didn't finish, he was going to coach me for productivity. And I think I already told you that, but he denied-I mean, he told me-he told me then, he goes like “Well, go find somebody to help you,” and I tried, but he said if this doesn't get done, then I was going to get coached for productivity, and I told him I'm not touching it .... I don't think [I was coached for productivity], but he said he was going to, and the stress alone was enough ....Id.
This testimony is contradicted by Plaintiff's affidavit in which she states, “I was made to do heavy lifting that was outside my work restriction all the time.” [ECF No. 31-54 ¶ 1]. “At the summary judgment stage, if an affidavit is inconsistent with the affiant's prior deposition testimony, courts may disregard the affidavit pursuant to the sham-affidavit rule.” Kinser v. United Methodist Agency for the Retarded-W. N Carolina, Inc., 613 Fed.Appx. 209, 210 (4th Cir. 2015) (citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); In re Family Dollar FLSA Litig., 637 F.3d 508, 512 (4th Cir.2011); Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975-76 (4th Cir.1990)). Here, there is a bone fide inconsistency between what Plaintiff testified to and her affidavit; therefore, the court disregards Plaintiff's inconsistent statement as found in her affidavit.
Brian Dickert (“Dickert”), who supervised Defendants' managers during the relevant period, testified as follows:
Q: So ultimately you trusted the managers underneath you to handle situations with work restrictions of associates, correct?
A: Yes, Based on the capacity of the associate and what the outcome was from Sedgwick, then, yes, absolutely. If there's a restrictions on lifting X amount of pounds, then naturally you're not going to put them in a department or area that requires that much of a workload.
Q: Such as furniture?
A: Absolutely not.
Q: What are some other departments that come to your mind, as far as places you wouldn't put someone with a work restriction?
A: It depends. The departments are kind of broke down-when you say “furniture,” there's multiple aspects of furniture. Furniture is not limited to big pallets of furniture. It's lamps, pillows, things like that .... So there's-if I put you in a department and you do have a restriction, you're not going to lift anything over X amount of pounds, so we're going to put you on this pallet that doesn't have that much on it.[ECF No. 31-58 at 19:24-20:5, 57:20-59:2; see also ECF No. 28-7 at 40:2-6 (“Q: Can you think of any other departments where it wouldn't be appropriate to put her there? A: No. All departments have smaller things to stock.”); ECF No. 28-8 at 49:11-12 (“Every area there's lighter material. So they would just not have to lift the heavy items.”)].
On September 26, 2018, Sedgwick sent Plaintiff a follow-up letter about the effectiveness of the accommodation provided, encouraging her to discuss accommodation ideas with her managers and/or calling to request reconsideration of her requests. [ECF No. 31-9 at 7]. On the same day, Sedgwick sent a follow-up email to Plaintiff's managers, stating “[p]lease discuss with the associate any concerns s/he has regarding the effectiveness of the accommodation,” directing “further interactive discussions” if the employee indicates the accommodation has not been effective. [ECF No. 3111]. Plaintiff has submitted a declaration stating that her managers “never talked with me about if the accommodations were enough or if I needed more help.” [ECF No. 31-54 ¶ 7].
Plaintiff was approved for intermittent leave from October 1, 2018 through September 30, 2019, providing for leave for 5 episodes per months, with each episode lasting 1 day, for her neuropathy condition. [ECF No. 28-3 at 39, ECF No. 31-57 at 178:4-180:15].
On October 17, 2018, Plaintiff was seen by Dr. Fischbach for the following: “Pt here today for f/u and medication refills, and discuss getting a pain med that is not a NSAID, and c/o vomiting WR[,] Pain: 07/10 in stomach.” [ECF NO. 31-10 at 1]. The doctor further noted as follows: “Pt here for F/U of polyarthropathy, vomiting, depression, and morbid obesity. Still being forced to work beyond the specified wt limitations I set forth months ago .... Limit herself at work or preferable, find a new job.” Id. at 3-4. On December 13, 2018, Plaintiff was admitted to Aiken Regional Medical Center and reported “she was at work and her legs became heavy and weak” and “was helped by coworker to the other room.” [ECF No. 31-15 at 1].
During 2018, Plaintiff received three occurrences for unexcused absences, and her yearly review designated her as “valued performance,” noting “Annette will do anything you ask her to do,” but that she “needs to be aware of the time frame given for each assignment.” [ECF Nos. 31-1, 31-3].
C. Plaintiff's 2019 Work History
Plaintiff testified that she discovered she was pregnant in January 2019. [ECF No. 31-57 at 810; see also ECF No. 31-6 at 2 (detailing the month and date of Plaintiff's pregnancy)]. Plaintiff received medical confirmation “of pregnancy test result” on February 13, 2019. [ECF No. 28-12 at 2].
In mid-January 2019, Plaintiff submitted a workplace complaint stating as follows, as summarized by the person she reported the incident to:
Annette went to the bathroom and started throwing up. As she threw up, she peed herself. Donald [Joly] stood outside yelling and asking her why she wasn't coming out of the bathroom. She explained why and he said Okay and walked away. Annette went home to clean herself up and, when she came back, Donald gave her an occurrence.[ECF No. 28-4 at 16-17, see also ECF No. 31-57 at 115:6-117:3, 267:3 268:16]. Plaintiff's coworker, Jon-Tavious Glover (“Glover”), has submitted a declaration stating “[m]anagement made a big issue over her going to the restroom throughout the night putting freight over a lady that they knew was pregnant.” [ECF No. 31-56 ¶ 4]. Glover also stated as follows:
I was present during the shift when Ms. Turner urinated on herself. She was trying to hold it because management had already stated that she could not use the restroom unless she was on break or that she had to be up front to watch customers. Annette called to the edge of the women's restroom and asked me to get Don because it was an emergency. When Don came over
and Annette explained that she needed to leave because she had urinated on herself, Don just stared at her and asked her to come out of the restroom. When Annette responded that she could not come out, Don responded, “Why the Hell not?” and later said “Whatever. You will still get points for leaving early.” Then, he walked away ....Id. ¶ 5.
Plaintiff also attests as to this issue as follows:
Donald Joly would always get onto me about using the bathroom. Eventually I would just hold it as long as I could but I was pregnant and having problems. He would harass me for using the bathroom and made it clear he thought I used it too much. Both Donald and John Bower only let me use the bathroom if I was on a break, but it was hours in between breaks.
When I had to leave the store because I urinated on myself, Donald pointed me for it and I had to ask again and again to get the attendance point taken off before it was removed. Donald said that I could've just bought new clothes and gone back to work rather than go home and clean myself.[ECF No. 31-54 ¶¶ 3-4].
Plaintiff testified she received significantly more occurrences than those listed in the record but fought successfully to have them removed. [ECF No. 31-57 at 302:10-305:22]. Defendants argue the attendance spreadsheets submitted by the parties show Joly did not issue, and later excuse, any early out or incomplete shift for Plaintiff around this time. [See ECF No. 36 at 13]. However, the relevant attendance spreadsheets submitted by Defendants do not begin until April 2019 and the relevant attendance spreadsheets submitted by Plaintiff, taken in light most favorable to her, indicate she may have been given an early out or incomplete shift at this time, although no occurrences are recorded. [ECF No. 31-3 at 2].
On January 29, 2019, Plaintiff requested an accommodation from Defendants via Sedgwick concerning her pregnancy, both for intermittent absences and work restrictions. [See ECF No. 31-8]. On February 6, 2019, Plaintiff received an orange disciplinary action from Joly for productivity issues. [ECF No. 28-3 at 7]. Plaintiff testified as to this incident as follows:
.... I was coached because I had the high blood pressure, and I didn't know it yet. It was still early in my pregnancy. Every time I bend over, like I almost fell into the pallet. I wasn't feeling right. Something was wrong. My heart felt weird ....And I kept having to go the bathroom and throw up. Like I could not stop. I was dry heaving. My chest was hurting. My eyes kept getting blurry. I did not know what was happening. And I told Don-I ran into Don, because he was like, “What's taking you so long? What's taking you so long?” I'm like, “Don, I don't feel good, but I'm trying my best.” I was like, “If you want, I'll just go home, but I am at least getting some work done. I'm doing what I can.” And he's like, “Well, you need to finish. You need to finish.” And I said, “I'm trying.” And he's like, “You need to stop going to the bathroom so much.” I said, “I can't.” I said, “I'm throwing up really bad.” I was like, “I don't feel right.”[ECF No. 31-57 at 106:11-108:21].
On March 1, 2019, Plaintiff's doctor submitted a medical information form, stating that Plaintiff needed to take leave due to her disabilities in the amount of five episodes per month, one day per episode. [ECF No. 31-35]. On the same day, Plaintiff's doctor completed an accommodation medical questionnaire, noting that Plaintiff's pregnancy has impacted her ability to bend, lift, stand, and walk, advising that she could not climb, be restricted to lifting 25 lbs., and work for no more than 8 hours a day, with no work for more than 4 hours at a time without a 15 minute break. [ECF No. 31-40].
At the end of March 2019, Plaintiff was granted an accommodation, extending from March 1, 2019, to September 8, 2019, providing for frequent breaks and stating in part as follows:
The associate should be provided Temporary Alternative Duty (TAD) for her restrictions due to pregnancy .... As part of the TAD assignment, you may temporarily excuse the associate from performing any job duties which would violate her work restrictions or temporarily assign her to work elsewhere in another position or area which is consistent with her restrictions .... The TAD assignment should accommodate the associate's work restrictions of: Pregnancy TAD; no climbing ladders, no standing more than 4 hours at this time without a 15 min break .
. . . No more than 8 hours days; no more than 4 hours without a 15 min break ....[ECF No. 31-8 at 2, Id. at 5 (providing for use of a stool or chair for intermittent sitting), see also ECF No. 31-12]. On May 28, 2019, as to her intermittent leave request, Plaintiff was provided the following alternative: two episodes per month with each episode lasting up to three days. [ECF No. 31-45 at 3, 5, ECF No. 31-52 at 2]. Defendants informed Plaintiff that the alternative was provided because the absences she requested “is over your approved frequency and duration allowed, which is 2 episodes per months for 3 days each episode.” [ECF No. 31-47].
Plaintiff testified that this accommodation of two episodes per month with each episode lasting up to three days was sufficient, but also stated that when she took this leave, she would receive occurrences. [ECF No. 31-57 at 197:12-17]. However, Plaintiff then testified that those occurrences were removed following her disputing them. See id. at 197:18-200:14.
Plaintiff attests that beginning in 2018, extending through this period until the time her employment was terminated in 2020, she requested to be assigned as a cashier instead of a stocker. Id. ¶ 8.
As to this accommodation, Joly testified as follows:
Q: Why did you chose not to move her into cashier, after she asked for it?
A: Cashiers still lift. They're on the front exits. She would also just disappear. On the front end, I would only have one cashier, and if that person disappeared, I would have no one. We wouldn't know. So it became a liability issue as far as that, but the cashiers also go out and work freight .... It's more of a reliability issue where she would just disappear. She would leave and then text someone that she left.
Q: Was that ever related to her medical condition?
A: I don't know specifically.
Q: Did you ever follow up to find out if times where she left was related to her medical condition, since you knew she was pregnant and had an accommodation?
A: A bunch of the times would be because she had to-or she urinated on herself. Other times I would get-I would get information from the support manager saying she wasn't feeling well, she left.
Q: And those are the times where she would disappear?
A: Correct. I now there's other reasons or-those are the ones that stick out, but it was the fact that disappearing-
Q: That made her a bad choice to move her to cashier?
A: Correct. I wouldn't have anyone on the front end, so you would know.[ECF No. 31-60 at 56:i7-58:4].
Plaintiff attested as follows:
There were usually two cashiers when I was working but they would get roped into doing stock. But there were night cashier positions available and they put people into cashier spots even though I had been asking for it. And I was able to do a different shift too to be a cashier and I told them that. Even then, there were other people like the customer service manager or overnight manager who could fill in if I had to leave, and if I had been cashier I would have had to leave less often because my symptoms would have been less aggravated.[ECF No. 31-54 ¶ 9].
As to this time period, Hancock testified as follows:
Q: What did you do to change her work assignments when she got her lifting restriction?
A: What I did was I personally talked to her to make sure and to reiterate to her she is not to lift more than what is allowed for her, and if she had anything that she thought was over the limit, that she was to let me know so either I can come over and lift it or get somebody to help her with whatever she needed lifted.
Q: Did you made any adjustments to what her freight pace should be, how long it takes her to throw freight?
A: No.
Q: So do lifting restrictions approved by Sedgwick affect an associate's ability to throw freight on time?
A: No, it shouldn't.[ECF No. 31-59 at 32:6-22; see also ECF No. 31-60 at 65:14-20 (Joly testifying that the accommodation provided to Plaintiff at this time was to make sure she did not violate her lifting restrictions or other restrictions); but see ECF No. 31-57 at 66:9-23 (Plaintiff testifying that an associate could ask for help lifting heavy items, but often would not get any assistance); ECF No. 31-56 ¶ 6 (Glover attesting that “[t]hey would have her stocking aisles such as bake and furniture by herself and not send anyone over to help her until later”)].
On May 4, 2019, Plaintiff travelled by ambulance to a hospital and was seen with the chief complaints of “decreased fetal movement and headache.” [ECF No. 31-17 at 2]. She had “severe range [blood pressure],” and the prenatal exam showed decreased fetal activity. Id. at 2, 44. She was observed overnight. Id. at 46.
On May 7, 2019, Plaintiff was seen for a routine prenatal visit and she was diagnosed as a high-risk pregnancy in second trimester due to various risk factors. [ECF No. 31-16 at 1]. At this visit, Plaintiff informed her provider that she went to the ER two nights prior “due to continuing episodes of feeling of passing out, BP elevation, etc.” Id. at 2. The clinical notes as include the following:
PT reports hard work at Walmart and them not letting her be cashier, she is having to stock which involves bending/stopping, reaching quite a bit and feels this is adding to a lot of her already existing problems. Reports neuropathy and loses feeling in her legs if she is bending too much[.] Informed pt that she will have to submit disability paperwork for her to get restrictions.Id. at 3.
On May 10, 2019, Plaintiff left work early [ECF No. 31-3] and was seen in the ER with complaints of “nausea, vomiting, headache, elevated BP's at work, tachycardia at work.” [ECF No. 31-19 at 1]. Plaintiff informed the staff that she was recently diagnosed with gestational hypertension, had been doing well with new medication, but “tonight at work she started feeling hot and had palpitations so took her BP and it was 143/75”; thereafter, she became dizzy, had blurry vision, experienced pain, and began vomiting. Id. at 39. The nurse's notes record that Plaintiff “expressed the need to be discharged due to needing to go to work and pick up her 11 year old child.” Id. at 1.
On May 26, 2019, Plaintiff was seen by medical providers at Aiken Regional Medical Centers, complaining of swelling of her feet. [ECF No. 31-20 at 3, Id. at 68 (“pt here with c/o leg swelling”)]. A “maternal fetal triage” was performed along with other tests including fetal heart rate doppler, rupture membrane, and fetal nonstress test in order to “assure fetal wellness.” Id. at 36-41, 53. The records indicate that Plaintiff was not having contractions, she tested negative for preeclampsia, and she received IV fluid and Tylenol. Id. at 71, 72, 75. It appears that it was recommended that Plaintiff stay in labor and delivery for two nights. Id. at 41; but see id. at 75 (“may discharge the patient to home if she feels better after fluids and Tylenol”). However, she was discharged on the same day with preterm labor discharge instructions. Id. at 8.
Plaintiff argues in briefing that it is this medical visit she was referencing in her deposition when she testified that she went into premature labor for 12 hours, was hospitalized “for early contractions high-risk preeclampsia,” received an injection in the stomach, and was told her baby may come early and “be in NICU for three months.” [ECF No. 31-57 at 281:23-282:7, 114:16115:2, see also id. at 135:19-137:18, ECF No. 31 at 9]. Plaintiff further testified she went into premature labor during this time period “about two or three times” and that she “kept having contractions.” [ECF No. 31-57 at 138:3-6]. However, medical records submitted show only that Plaintiff repeatedly denied having contractions and do not support her testimony that she went into premature labor during this pregnancy. [See ECF No. 31-16 at 2; ECF No. 31-17 at 45; ECF No. 31-19 at 1, 39].
Plaintiff testified that no one made her work more than eight hours a day or more than four hours without a 15-minute break, consistent with the accommodations provided for her, but that “I might as well have been forced into it since I was scared to lose my job,” further testifying as follows:
I felt like everything was on the line with everything that I did. I felt like I was walking on eggshells all day. “Don't go to the bathroom too much, Annette. They're going to coach you. Don't throw up too much.” And then I hear comments from them, “Oh, if you throw up on the floor, you can just make your boyfriend clean it up.”[ECF No 31-57 at 193:18-194:6].
Plaintiff testified that on another occasion, the following occurred:
And I'm already worried. You know, you're on me on like crazy. I'm holding going to the bathroom literally as long as I can, and you're just yelling at me. You're yelling at me, and I'm pushing myself to do all I can for you. I worked myself so hard, I passed out on the bathroom floor for an hour, and I had no idea. I woke up, and an hour had passed by I don't know exactly when . . . . I had a doctor's appointment literally the next morning, and I ended up getting an ultrasound. The baby was fine ....Id. at 113:3-19.
During this period, Defendants investigated the following allegations made by Plaintiff, submitted on May 18, 2019:
Annette alleges Donald [Joly] is treating her differently from other associates because she has [lifting] limitations. Annette has been in and out of hospital a couple of times and she has actually been coached by Donald for throwing up too much. She stated that she has been shouted at as well. Annette stated that she has high blood pressure and she recently got diagnosed with hypertension. She stated that this is because of her disability. She has been receiving occurrences against her name for being on medical leave. Annetta alleges she has reported this to the comanager and assistant managers but nothing has been done to resolve her situation. She also spoke to the Human resource department about this situation, but nothing has been done to resolve the situation. Annette stated that she was scheduled for work today, 18 May 2019, but when she arrived at work, she was removed from the schedule for the next three weeks, except for one day (Friday) every single week. Annetta stated that they did not provide her with any explanation and when she asked Donald Joley why is she not on the schedule he said he does not know. Annetta stated that Donald said she is not on the schedule and therefore she must go home. Annette stated that she believes it is retaliation due to the complaint she filed with Ethics.[ECF No. 31-26 (investigation number WMT-19-05-04831), see also ECF No. 31-57 at 276:1-6, 278:2-7]. On May 30, 2019, Plaintiff provided additional information that was attached to her above complaint, as follows:
Thank you for listening to my concerns for disability and pregnancy discrimination. The very next day after filing for discrimination I was retaliated against by being removed entirely from the work schedule after being a full time employee for 3 years[.][ECF No. 31-27].
Plaintiff attests that “right after” she submitted her May 18, 2019 complaint, “they took me off the schedule for five weeks,” and, although she repeatedly called co-manager Natasha Jones (“Jones”) and texted Joly, neither would respond. [ECF No. 31-54 ¶ 10]. Plaintiff testified that she called Jones and was told she was removed from the schedule because “Donald Joly and Jon Bower told her that she wasn't showing up to work, period, even though I had been to work, but the problem was they kept having me in stock.” [ECF No. 31-57 at 129:6-10]. Plaintiff also testified that at some point, she was told her hours were cut because they were cutting everyone's hours, even though other employees informed her that was not the case. Id. at 286:7-288:1.
Glover attests as follows:
When Ms. Turner was pregnant, management would cut her hours and lie about cutting everyone's hours when no one else's hours had been cut. In fact, they had other employees, including myself, coming to work extra hours. Wal-Mart even went as far cutting her maternity leave claiming she was part-time, even though she had been working 40+ hours a week for a couple of years.[ECF No. 31-56 ¶ 8].
The record shows that Plaintiff was absent from work during this timeframe on May 24th, June 7th, June 8th, June 9th, and June 12th without receiving points/occurrences. [ECF No. 28-4 at 42]. Additionally, Plaintiff testified that Hancock “gave [her] the week off” from work at her own request beginning May 26, 2019 to recover from alleged preterm labor. [ECF No. 28-2 at 136:3-137:2; see also ECF No. 31 at 9 (Plaintiff identifying that the May 26, 2019 visit to Aiken Regional Medical Providers was when she experienced premature labor)].
As part of Defendants' investigation, Brandi B. Miller, on June 4, 2019, submitted the following statement:
On several occasions I have spoken with Annette Turner about her attendance. She has explained that her pregnancy has been the issue. Her health issues being due to being pregnant. I have recommended her to contact Sedgwick for possible leave of absence and or accommodations. I have talked with all 3 o/n mgrs about her medical concerns with this pregnancy/attendance. My conversations with her on changing jobs from stocker to being a cashier have been initiated by her. I am not aware of any restrictions that would make her not able to be a stocker.[ECF No. 31-28].
On the same day, Joly also submitted the following statement:
On June 4th had a conversation with store manager Brian and co mgr Chris. This was about a coaching that was given in February I found out later. He asked what dictates a coaching and I gave examples of repeated issues after numerous conversations of poor productivity etc. Was asked if I ever had a conversation with Annette about her schedule which I did not. I had nothing to do with cutting hours. She is a parttime associate so either Matt or Kevin [was] told by Tasha to cut her down to parttime 11 hours.She has had horrible attendance. I was asked if I ever screamed at associates on the floor which I absolutely do not. The coaching that was given was based off of numerous incidents with productivity, every area there was freight being left or we had to send help. This happened repeatedly.[ECF No. 31-29].
Dickert testified that, at this time, Donald Joly and Matthew Hancock “were in charge of scheduling for overnights”; however, Dickert did not specifically address who was responsible for scheduling part time associates working overnight. [ECF No. 31-58 at 86:13-14].
Hancock also provided the following statement:
We talked about if she was being treated different because her hours got cut. Hours got cut for dependability and not show why not give hours to associates that don't have any. Also talked about her being transferred to another area but with her having 2 coachings it wouldn't allow her to. Also about her being mistreated. I haven't seen her being mistreated in front of me. Also talked about her accommodations and have we been following it. I have by letting her work areas she is able to and told her to let me know if she needed a few extra minutes on her breaks if she needed it.[ECF No. 31-30 (strike out in original)].
An additional statement was also submitted by Patti Holley Price (“Price”):
Annette Turner has poor productivity when she comes to work. The nightly managers and even the day time managers have tried to accommodate her, by moving her to different parts of the store. She will come to work for about three hours of her 8hr shift, and leave without even letting anyone know. She wants to become a cashier, when they are not reliable and could walk out at any time, and have no one [at] the register. Manager Don is a great manager, but he does show some partiality towards some associates, and then other associates see that, and it kinda makes them upset. Back to Annette, she came to work so [doped] up on pills she couldn't even walk, so how can she be able to work if she can't even walk.[ECF No. 31-31].
Plaintiff argues, in response to Price's statement above, that “reason she was having difficulty walking is that she had to go off of her neuropathy medication during her pregnancy.” [ECF No. 31 at 13 (citing ECF No. 31-35)].
At the end of the investigation, the following findings were made:
1. Statements [from] associates interviewed state Don does not treat Annette different from other associates.
2. Annette was not coached for “throwing up too much.” Annette was coached for productivity. This is supported based off the statements from Matt, Don, and Patti in reference to Annette's lack of productivity when she is at work.
3. Many attendance occurrences have been approved due to reasonable accommodation.
4. Annette states that she has reported this to multiple sources, however, the only situation determined that she reported was wanting to move to a cashier position or a mod team position. The store has attempted to accommodate her in various roles within the store.
5. Annette is a part time associate. Hours were not reduced due to the complaint filed with ethics.[ECF No. 31-52 at 3 (minor alterations to punctuation)].
Plaintiff was granted a continuous leave of absence from September 3, 2019, through October 30, 2019, for the birth of her child via a personal leave of absence because she was not eligible for FMLA leave, as she had not worked the requisite 1,250 hours within the preceding 12-month period. [ECF No. 31-57 at 202:9-203:9, ECF No. 28-3 at 48-51].
On September 19, 2019, Plaintiff submitted an inquiry with the Equal Employment Opportunity Commission (“EEOC”), providing that the following occurred:
Discrimination beginning 9/1/2018 continues to current date. While pregnant I was diagnosed with hypertension. I was treated
unfairly written up for having to throw up pointed for accidentally peeing on myself while throwing up. I filed with hr for discrimination and was removed from the work schedule for 5 weeks. Denied a more suitable position for several months. Denied full time after having worked there for nearly 3 years the first two years working 40 plus hours a week and denied benefits for maternity leave.[ECF No. 31-36].
Plaintiff has submitted a declaration stating that at some point in 2019, when she “was still pregnant,” Bower “would keep calling me a cow or heifer or commend on how big I was or call me chunky or harass me when I was eating,” including calling her “Santa's little ho ho ho,” and also “kicked my chair when I was in the break room on my break once.” [ECF No. 31-54 ¶ 2]. Plaintiff also testified that while she was pregnant, Joly told Plaintiffs fiance as follows: “I'll fire you, and your baby will end up on [welfare].” [ECF No. 3157 at 121:13-122:4].
During 2019, Plaintiff received four occurrences for unexcused absences. [ECF No. 31-3]. Plaintiff's evaluation record for 2019, as well as 2020, shows her rating as “valued performance,” and includes comments stating Plaintiff “is a good associate.” [ECF No. 31-1].
D. Plaintiff's 2020 Work History
On March 10, 2020, Defendants issued a letter concerning the new COVID-19 policy. In this letter, associates were informed as follows:
During this uncertain time, if you determine you are unable to work or are uncomfortable at work, you can choose to stay home. To ensure you feel supported making this choice, we will waiver our attendance occurrence policy through the end of April, but please call in as usual to let us know More information on all of these options will be available on OneWalmart.[ECF No. 31-32]. The policy, effective March 1, 2020 and updated on March 18, 2020, provides as follows:
You may take up to two work weeks of leave for [COVID-19] events or circumstances described below. Contact Sedgwick [online or by calling] ....if you will be out more than 3 days . . . [or] as soon as you are aware of the need for leave but no later than 3 business days after the first day of your absence ....[ECF No. 28-4 at 46; see also, e.g., ECF No. 36-1 at 2-31 (“COVID-19 absences and emergency leave information,” revised “3/14,” directing that “[y]ou must contact Sedgwick if you will be out more than three days”; “COVID-19 emergency leave policy information,” directing associates “to call in as usual to let their manager know” and “also need to contact Sedgwick if they will be out more than three days.”)].
Plaintiff testified that she received the March 10, 2020 letter by email, but also noted “they had it printed on their website as well under their policies.” [ECF No. 31-57 at 123:3-5].
In 2020, prior to taking leave because of COVID-10, Plaintiff had three occurrences for unexcused absences. [ECF No. 31-3].Plaintiff testified in March 2019, she and her family members became ill, and she returned to work briefly on March 28 or 29, 2019. [ECF No. 31-57 at 313:22-317:15; ECF No. 31-34 (termination record stating Plaintiff's last day of work as March 28, 2020); see also ECF No. 31-1 at 12 (attendance records indicating Plaintiff was not at work those days); ECF No. 28-4 at 45 (same)]. Concerning that day, Plaintiff testified as follows:
Defendants argue, and Plaintiff does not dispute, that in the six months leading up to her termination in April 2020, Plaintiff was absent from work 24 times, and she had arrived late and/or left early from her scheduled shift at least 32 times, although she did not receive occurrences except for the three unexcused absences, specified above, and the additional three occurrences leading to her termination. [See ECF No. 28-1 at 4 (citing ECF No. 28-4 at 42-45, ECF No. 28-2 at 306:1-308:25)].
And like I said, we received the notification, the policy that if you're uncomfortable working or, you know, if you're sick, you can feel free to stay home and just follow proper call-in procedures . . .. I told Don that I would like three days to think about what I want to do and whether or not I could be comfortable going there worrying about bringing it home to my daughter ....[ECF No. 31-57 at 315:10-21; see also id. at 331:9-14 (“I called my managers, I talked to them on the phone, and all they said was, ‘Don't come unless you're not sick.'”)].
Khori Kirkland (“Kirkland”), works for Defendants as a “people lead,” including handling scheduling. [ECF No. 31-61 at 10:17-24]. On April 4, 2019, Kirkland classified Plaintiff's absences from late March to early April as “conditional status” and “COVID-19 event” as follows:
Q: So the usual method for an associate calling out for a day is to call the hotline, then that information is centralized in the system, and it's usually the coaches who are going to be the first to be looking at that ....
A: Yes, sir. Yes, sir ....
Q: So you were logged in there, it looks like really early morning on April 4th . . . So we have these COVID-19 approvals. Did you approve those-or based on you looking at those records, do you believe that you approved those because she was in compliance with the policy ....?
A: I would say so, yes. Based on communication with the associate that she was going to file a Sedgwick-approved leave of
absence for that time, because it would have been excused if she would have done that. Yes. Yes. Yes. That's correct.[ECF No. 31-61 at 82:23-83:4, 96:23-97:8, see also ECF No. 31-1 at 12, ECF No. 28-4 at 45]. However, a few hours after Kirkland classified Plaintiff's absences as approved on April 4, 2019, Hancock went into the system, changing the classification for three of the events to “unauthorized.” [ECF No. 31-59 at 37:5-8, see also ECF No. 31-1 at 12].
Plaintiff attests as follows:
When I took Covid leave in March 2020, I called in everyday to the managers like the policy said I was supposed to. They never told me about the Covid leave policy changing and I do not know why they didn't tell me. If they had told me that I needed to call Sedgwick then I would have.[ECF No. 31-54 ¶ 11].
On April 5, 2020, Plaintiff's employment was terminated for “excessive absences,” as evidenced by a “exit interview” document signed by Joly, although Hancock testified it was actually his signature, but that he was logged into the system as Joly. [ECF No. 31-34, ECF No. 31-59 at 41:8-42:21].Hancock testified that Plaintiff was fired because “I noticed she had callouts for a few days, and then I guess that put her over the points.” [ECF No. 31-59 at 34:9-11]. Hancock also testified that Plaintiff's absences “were just regular callouts” and “[n]othing to do with COVID,” although he admitted had had communicated with no one to confirm this. Id. at 34:13-19. Plaintiff attests that after her employment was terminated, she “tried to make a complaint but they would not take my calls when I tried to call in.” [ECF No. 31-54 ¶ 10].
Joly also testified that it was Hancock, not himself, that made the decision to fire Plaintiff. [ECF No. 31-60 at 77:23-78:6].
II. Discussion
A. Standard on Motion for Summary Judgment
The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248.
B. Analysis
As a preliminary matter, the court determines what claims are to be addressed. Plaintiff argues in briefing that she is bringing the following claims: (1) hostile work environment claims in violation of Title VII and the ADA, (2) failure to accommodate claim in violation of the ADA, (3) retaliation claims in violation of the ADA, Title VII, and the FMLA, and (4) wrongful termination claim in violation of the ADA. Although not wholly consistent with the claims asserted in Plaintiff's complaint, in an abundance of caution the undersigned addresses each of these claims.
Plaintiff does not assert that she is bringing a claim for pregnancy discrimination in violation of Title VII, notwithstanding having identified this claim in her complaint, nor does Plaintiff address Defendants' arguments concerning this claim as found in Defendants' motion for summary judgment. [See ECF No. 28-1 at 16-18, see also ECF No. 31]. To the extent that Plaintiff intends to assert such a claim, she has failed to establish that the legitimate, non-discriminatory reasons offered by Defendants for her termination are pretext, as discussed concerning Plaintiff's retaliation claims.
The parties additionally dispute what allegations can be considered by the court to support Plaintiff's claim, with Defendants arguing that “Plaintiff's allegations of any discrete acts of disability discrimination occurring prior to June 19, 2019 are untimely, and any allegations of discrete acts of pregnancy discrimination or retaliation prior to August 24, 2019 are also untimely.” [ECF No. 36 at 12]. The parties' arguments as to this issue hinge on when Plaintiff filed her EEOC charge.
On September 19, 2019, Plaintiff filed an online inquiry with the EEOC that was not signed under oath or verified. [ECF No. 31-36]. Plaintiff provided the following information:
The only references to “charge” in this online inquiry are the following questions: “[c]laim previously filed as charge with EEOC,” including inquiry as to the charge number, and “approximate deadline for filing a charge,” to which Plaintiff responded March 7, 2020. [ECF No. 31-36].
Reason for Complaint: Sex (including pregnancy, sexual orientation and gender identity), Disability, Retaliation-I complained to my employer about job discrimination ....
Adverse Action(s): Discrimination beginning 9/1/2018 continues to current date. While pregnant I was diagnosed with hypertension. I was treated unfairly written up for having to throw up pointed for accidentally peeing on myself while throwing up. I filed with hr for discrimination and was removed from the work schedule for 5 weeks. Denied a more suitable position for several months. Denied full time after having worked there for nearly 3 years the first two years working 40 plus hours a week and denied benefits for maternity leave.Id. No mention is made of a failure to accommodate any disabilities. See id.
Thereafter, the EEOC informed Plaintiff that she had “completed two of four required parts needed to officially file a charge of discrimination,” directing Plaintiff to schedule an interview with an EEOC representative, and informing her that the EEOC “will not take any action on your inquiry” without Plaintiff's doing so. [ECF No. 36-3 at 7]. On September 19, 2019, October 18, 2019, and November 8, 2019, the EEOC sent Plaintiff emails, reminding her of her appointment scheduled November 18, 2019, with the first email also requesting more information from Plaintiff, but reminding her, in bold and all caps, “answering these questions is not the same as filing a charge of discrimination.” Id. at 4-6.
The last email, sent November 8, 2019, also instructed Plaintiff to confirm the November 18, 2019 appointment, which Plaintiff failed to do, resulting in her appointment being canceled. Id. at 3, 6. Plaintiff argues that thereafter, “she was unable to reschedule despite diligent efforts because the EEOC had no availability,” and the EEOC “closed her charge because of ‘her' failure to reschedule” on April 2, 2020. [ECF No. 31 at 18, ECF No. 36-4 at 4].
At a later date, the EEOC determined that Plaintiff, when her charge was closed, had not filed allegations of discrimination with the EEOC. [ECF 36-4 at 4 (EEOC determination as to “EEOC Charge 436-2019-01707N (N-Inquiry Closed) on 04/02/2020,” stating “the Charging Party did not file allegation(s) of Discrimination with the EEOC, the EEOC did not conduct an investigate, and a Notice of Suit Rights was not issued to the Charging Party”)].
On April 14, 2020, Plaintiff submitted a charge of discrimination with the EEOC, identifying the appropriate state agency as the South Carolina Human Affairs Commission (“SCHAC”) and, thereafter, according to Plaintiff, received a prompt interview, but the “charge drafted by the investigator failed to allege pregnancy discrimination, gender discrimination, or retaliation.” [ECF No. 31 at 18-19, ECF No. 28-4 at 48]. More specifically, the charge checks the box for disability discrimination only, and provides as follows:
I began my employment with Walmart on March 17, 2016, and I received satisfactory performance evaluations. I was diagnosed with medical conditions in 2017 and 2019 that Donald Joly, Assistant Manager, and John Bowers, Support Manager. I accumulated 4.5 points against my attendance for missing time due to my disabilities. In March of 2020, I was out sick and could not come to work due to the corona virus pandemic. March 12, 2020, I received an email from corporate saying that the attendance policy would not be enforced through the end of April.
I returned to work March 29, 2020, and one of my medical conditions caused me to leave work early. On April 8, 2020, I was told by Tasha (last name unknown), Co-manager, that I was discharge April 5, 2020, due going over my points for the attendance policy. I believe I have been discriminated against in violation of The Americans with Disabilities Act of 1990, as Amended.[ECF No. 28-4 at 48 (errors in original)]. On June 19, 2020, after retaining counsel, Plaintiff filed an amended charge in which were checked the boxes for sex, pregnancy, and disability discrimination, as well as retaliation, accompanied by the relevant allegations including allegations concerning a failure to accommodate. [ECF No. 28-4 at 49-57, ECF No. 31-38].
Plaintiff disagrees with Defendants that she did not file an official charge until April 14, 2020, and argues her online inquiry on September 19, 2019, meets the requirements of an official charge as described in Edelman v. Lynchburg Coll., 535 U.S. 106 (2002). and, if the court disagrees, any delay should be excused under the doctrine of equitable tolling because it was due to the processing delays by the EEOC. [ECF No. 31 at 16, 18 (citing Waiters v. Robert Bosch Corp., 683 F.2d 89, 92 (4th Cir. 1982))].
A claimant is required to file a charge of discrimination with the EEOC within 180 days of the alleged discriminatory act or acts, or, if the alleged discrimination occurred in a “deferral state,” then within 300 days of the alleged discriminatory act(s) if the claimant initially institutes proceedings with the appropriate state agency, or within thirty days of the state agency's termination of its proceedings, whichever is earlier. See 42 U.S.C. § 2000e-5(e). South Carolina is a deferral state, with the appropriate state agency being SCHAC. The parties agree the 300-day limitations period applies.
Although she argues otherwise, Plaintiff's September 2019 initial inquiry did not constitute a charge, and she is not entitled to equitable tolling to revive her untimely allegations. As discussed in Edelman, a deficiency with the “oath or affirmation” charge requirement may be later cured and relate back to the original filing. 535 U.S. at 116. However, as stated by this court, “the ‘relation back' principle delineated in Edelman only applies where the earlier filing actually operates as a charge. Sheppard v. The LPA Grp., Inc., C/A No. 2:07-0564-DCN-RSC, 2007 WL 4981421, at *5 (D.S.C. Oct. 25, 2007) (“The Intake Questionnaire should not be substituted for a charge in this case because (a) the EEOC did not notify LPA of the filing of the Questionnaire as if it were a charge and did not treat it as a formal charge which would otherwise have triggered its investigative process; (b) the EEOC gave Sheppard express notice prior to the expiration of the statutory period that he had not yet filed a charge; and (c) the Questionnaire was not signed under oath or verified.”), report and recommendation adopted sub nom. Sheppard v. LPA Grp., C/A No. 2:07-564-JFA-RSC, 2008 WL 444685, at *4 (D.S.C. Feb. 15, 2008) (“Equitable relief is usually only applicable when there has been affirmative misconduct, such as on the part of the defendant or SCHAC/EEOC employees which kept plaintiff from timely filing a charge. No such misconduct appears in this case.”); see also, e.g., Williams v. Fairfield Mem'l Hosp., C/A No. 0:19-183-MGL-PJG, 2020 WL 2573386, at *4 (D.S.C. May 6, 2020) (rejecting plaintiff's argument that the intake questionnaire could be considered a charge where the questionnaire did not request the agency to act, did not include an affidavit, included a disclaimer that the questionnaire does not imply or constitute the filing of a charge, and where the EEOC did not consider the questionnaire to be a charge), report and recommendation adopted, C/A No. 0:19-183-MGL-PJG, 2020 WL 2572277 (D.S.C. May 21, 2020).
In sum, Plaintiff has not cited to, nor is the court aware, of any authority in support of her position that her September 2019 initial inquiry should be considered a charge in this instance.
This case stands in contrast to those where the initial inquiry contained language indicating it could be considered a charge. See, e.g., Allen v. ACS Techs. Grp., Inc., C/A No. 4:18-631-DCC-KDW, 2019 WL 6120019, at *10 (D.S.C. May 6, 2019) (“Considering the content of the Intake Questionnaire- particularly including Plaintiff's checking the box that indicates “I want to file a charge of discrimination . . .” and the indication that the Questionnaire “may serve as a charge if it meets the elements of a charge”-the undersigned is of the opinion that Plaintiff's Intake Questionnaire satisfies the EEOC's objective test of whether something may be considered a charge.”), report and recommendation adopted, C/A No. 4:18-631-DCC, 2019 WL 4622091 (D.S.C. Sept. 24, 2019); see also Hudgins v. PruittHealth, Inc., C/A No. 1:18-1468-MGL-KDW, 2018 WL 6069459, at *8 (D.S.C. Aug. 31, 2018) (same), report and recommendation adopted, C/A No. 1:18-1468-MGL-KDW, 2018 WL 5629755 (D.S.C. Oct. 31, 2018).
Additionally, for the reasons discussed by this court in Sheppard and Williams, the undersigned declines to recommend the application of equitable tolling. Generally, to warrant equitable tolling of a statutory deadline, a plaintiff must show: “(1) that [she] has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citation omitted); see also Irvin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (indicating that equitable tolling has not been allowed “where the claimant failed to exercise due diligence” and it does not extend to “garden variety claim[s] of excusable neglect”). Equitable tolling is available only in “those rare instances where- due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (en banc) (citations omitted).
Plaintiff provides no evidence as to why there was a delay in filing her charge, but instead points the court to the amended charge she filed on June 19, 2020, with the EEOC and the explanation provided there. [See ECF No. 31 at 18]. In her amended charge, Plaintiff argues that she did not see the November 8, 2019 email requesting her to confirm her appointment, that was thereafter canceled, and was unable to schedule a new appointment between November 8, 2019, and being informed her charge was closed on April 2, 2020, although “[s]he checked the website over and over again” and “[o]n more than one occasion . . . called the EEOC to schedule an appointment, but no one answered and she left a message.” [ECF No. 31-37 at 2]. Plaintiff states no one ever called back and, during this period, she also gave birth to her daughter. See id.
These circumstances do not constitute extraordinary circumstances warranting application of equitable tolling. See, e.g., Thomas v. E. Penn Mfg.
Co. Inc., C/A No. 1:17-306, 2018 WL 1578156, at *6 (M.D. N.C. Mar. 29, 2018) (“Here, Plaintiff alleges no wrongful conduct on the part of Defendant or the EEOC in the delay in filing. While Plaintiff's assertions pertaining to her health and the demands of having a newborn may be true, this court is not aware of any equitable tolling doctrine that would allow the late filing of the Charge of Discrimination under these circumstances.”). This instance stands in contrast to those where the delay at issue was wholly the responsibility of the EEOC. See, e.g., Morris v. Lowe's Home Centers, Inc., C/A No. 1:10-388, 2011 WL 2417046, at *4 (M.D. N.C. June 13, 2011) (“Ms. Morris has thus demonstrated that the EEOC's delay in scheduling an interview and preparing her charge constitutes an extraordinary circumstance that was beyond her control and prevented her from filing the charge on time.”);Waiters, 683 F.2d 89, 92 (“In this case, Waiters did everything required of him by the statute; had his charge been properly processed, the charge would have satisfied the filing period.”).
Although Plaintiff also faults the EEOC's “confusing process of confirming interview appointments,” Plaintiff also states she “did not see the November 8, 2019 email so did not confirm it.” [ECF No. 31-37 at 2].
As stated above, Plaintiff brings claims based on (1) hostile work environment, (2) ADA failure to accommodate, (3) retaliation, and (4), wrongful termination. The undersigned addresses timeliness concerns as to Plaintiff's hostile work environment separately below. As to Plaintiff's remaining claims, the operative charge filing date is April 14, 2020, for Plaintiff's retaliation and wrongful termination claims brought pursuant to the ADA, and June 19, 2020, for Plaintiff's remaining claims. Therefore, applying the 300-day window, Plaintiff's allegations concerning ADA retaliation and wrongful termination occurring prior to June 19, 2019, are untimely, and any allegations concerning Plaintiff's other claims prior to August 24, 2019, are also untimely.
Plaintiff argues, and Defendants appear to agree, that her hostile work environment claims are subject to the continuing violations doctrine. [See ECF No. 20 at 19, ECF No. 36 at 12 (Defendants arguing allegations of certain discrete acts are untimely but that Defendants are entitled to summary judgment on Plaintiff's hostile work environment claims that “spread out across a four-year period.”)].
1. Hostile Work Environment Claims
Claims of a hostile work environment under either the ADA or Title VII are analyzed under a “parallel methodology.” Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001). To establish such a claim under Title VII, a plaintiff must show: (1) she experienced unwelcome harassment; (2) the harassment was based on sex or gender, including “on the basis of pregnancy, childbirth, or related medical conditions”; (3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere; and (4) there is some basis for imposing liability on the employer. Evans v. Int'l Paper Co., 936 F.3d 183, 192 (4th Cir. 2019) (citing Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003)); see also 42 U.S.C. § 2000e(k); DeJarnette v. Corning, Inc., 133 F.3d 293, 297 (4th Cir.1998) (holding that “a claim of discrimination on the basis of pregnancy must be analyzed in the same manner as any other sex discrimination claim brought pursuant to Title VII”). Similarly, to establish such a claim under the ADA, a plaintiff must show (1) she is a qualified individual with a disability; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her disability; (4) the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and (5) some factual basis exists to impute liability for the harassment to the employer. Jessup v. Barnes Grp., Inc., 23 F.4th 360, 367 (4th Cir. 2022).
As the Supreme Court has made clear, a hostile work environment exists when an employee's “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted); see also EEO v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (“Workplaces are not always harmonious locales, and even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard.”).
Plaintiff argues she has made the requisite showing by demonstrating “a clear pattern of discriminatory comments about pregnancy or disability, animus about pregnancy or disabilities, and coaching for pregnancy or disabilities.” [ECF No. 31 at 20]. In support, Plaintiff points to comments from and actions taken by multiple supervisors over the span of roughly four years. However, for reasons discussed below, many of these allegations do not relate to Plaintiff's hostile work environment claim, which is primarily premised on Joly and Bower's treatment of her during her pregnancy, including that Bower engaged in name calling and both supervisors hassled her and yelled at her concerning her frequent bathroom breaks.
First, Plaintiff points to Miller's alleged comments in 2016 or very early 2017, in which she laughed at Plaintiff, called her handicap, said “Oh, look who is finally walking,” and asked “So you're telling me I need two people to do one person's job?”
As to these alleged comments, Plaintiff testified that following her complaints, Defendants moved Miller to a different shift and issues with Miller were resolved. As has been held by this court,
.... the continuing violations doctrine in the context of a hostile work environment claim is not limitless. The otherwise time-barred conduct must be related to non-time-barred conduct and the employer may take intervening curative action that cuts off the temporal reach of the hostile work environment claim.Higgins v. Farmer, C/A No. 4:06-3501-RBH, 2008 WL 4908654, at *4 (D.S.C. Nov. 13, 2008) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002)).
Because Plaintiff has submitted evidence that Defendants addressed and resolved the issue regarding Miller, Defendants' actions “cuts off the temporal reach of [Plaintiff's] hostile work environment claims” in this instance. The instant case stands in contrast to others addressed by this court where “there was evidence taken in a light most favorable to the plaintiff that the harassment continued and that the actions by the employer were . . . a ‘slap on the wrist.'” Ridge v. Farmer, C/A No. 4:06-3507-RBH, 2008 WL 4907892, at *4 (D.S.C. Nov. 13, 2008); see also Green v. Wilkie, C/A No. 2:18-00788-DCN, 2020 WL 2319019, at *8 (D.S.C. May 11, 2020), aff'd sub nom. Green v. McDonough, 839 Fed.Appx. 823 (4th Cir. 2021) (‘Specifically, Morgan held that the court must examine whether the ‘pre-and post-limitations period incidents involve the same type of employment actions, occurred relatively frequently, and were perpetrated by the same managers.'”) (citing Morgan, 536 U.S. at 120)); McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 77-78 (2d Cir. 2010) (finding earlier conduct “insufficiently related” to action occurring within the statute of limitations because earlier conduct was different type of harassment that occurred in different department and involved different personnel).
Plaintiff also relies on an affidavit submitted by a former coworker, Jessica Michaud (“Michaud”), in which Michaud makes numerous allegations concerning Joly's treatment of employees, particularly female employees, and states in part that she and Plaintiff “experienced constant abuse” from Joly. [See ECF No. 31-55]. Defendants take issue with this evidence, arguing that Michaud's employment was terminated in December 2016 [see ECF No. 362], “more than three years prior to Plaintiff's termination and has no personal knowledge of Plaintiff's employment during those years.” [ECF No. 36 at 13]. Defendants have not, however, moved to strike or otherwise exclude the evidence offered by Michaud. See id.
The Fourth Circuit has held that “[t]estimony from other employees describing their own experiences of harassment by the defendant is often relevant to a plaintiff's hostile work environment claim.” King v. McMillan, 594 F.3d 301, 310 (4th Cir. 2010) (citing Fox v. GMC, 247 F.3d 169, 179 (4th Cir.2001) (pointing to testimony of other employees regarding supervisors' treatment in concluding that plaintiff presented sufficient evidence of hostile work environment under the Americans with Disabilities Act)).
Here, however, Plaintiff does not allege any conduct from Joly in 2016 in support of her hostile work environment claim, or any other claim, and instead testified that it was after her return to work in September 2018 that “issues” started with Joly. [See ECF No. 31-57 at 153:22-24, 160:7-13]. Michaud's affidavit, submitted by Plaintiff, contradicts Plaintiff's testimony, and “a party against whom summary judgment is sought cannot create a jury issue by identifying discrepancies in his own account of the facts.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 186 (4th Cir. 2001); see also Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (“If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.”); Id. at 960 (“A genuine issue of material fact is not created where the only issue of fact is to determine which of two conflicting versions of the plaintiff's testimony is correct.”).
Given that Michaud's affidavit evidence solely concerns events that occurred in 2016, contains conclusory allegations, and contradicts Plaintiff's testimony, the undersigned will consider the remaining evidence offered by Plaintiff in support of her hostile work environment claim.
The undersigned notes that even if the non-conclusory portions of Michaud's affidavit were considered, Plaintiff has still failed to show she has been subjected to harassment sufficient severe or pervasive to alter the terms of her employment.
Plaintiff's remaining allegations focus actions primarily taken by Joly, but also by Bower, primarily during her pregnancy.Plaintiff has submitted a declaration stating:
Plaintiff also discusses one comment made by Price in her June 4, 2019 statement, in which Price stated Plaintiff was “doped up,” because of how she walked. Plaintiff argues this comment indicates animus about disabilities because Plaintiff was in fact walking the way she did because she was removed from her medication for neuropathy while pregnant.
When I was still pregnant in 2019, John Bower would keep calling me a cow or heifer or comment on how big I was or call me chunky or harass me when I was eating. At one point he called me Santa's little ho ho ho. He kicked my chair when I was in the break room on my break once.
Donald Joly would always get onto me about using the bathroom. Eventually I would just hold it as long as I could but I was pregnant and having problems. He would harass me for using the bathroom and made it clear he thought I used it too much. Both Donald and John Bower only let me use the bathroom if I was on a break, but it was hours in between breaks.
When I had to leave the store because I urinated on myself,Donald pointed me for it and I had to ask again and again to get the attendance point taken off before it was removed. Donald said
that I could've just bought new clothes and gone back to work rather than go home and clean myself.[ECF No. 31-54 ¶¶ 2-4; see also ECF No. 31-57 at 163:9-13 (Plaintiff testifying that “Bower had the tendency to harass me just as much, kicking my chair, calling me fat, calling me a whale and other things, talking about how much I eat, how much I go to the bathroom, so on.”); ECF No. 31-26 at 2 (Plaintiff's internal complaint stating in part “she has been in and out of the hospital a couple of times and she has actually been coached by Donald for throwing up too much. She stated that she has been shouted at as well. She stated that the time she threw up on herself she was sent to the bathroom to clean herself up and come back to work, instead of being sent home ....”)]. Plaintiff also alleges that Joly stated to her that he has “never known a pregnant woman that has to go to the bathroom that much.” [ECF No. 31-57 at 118:10-11].
Defendants argue that Plaintiff allegations concerning Bower's 2019 comments have been asserted “for the very first time in [Plaintiff's] postdiscovery declaration,” arguing also that Plaintiff has never mentioned Bower engaging in inappropriate name-calling in her many internal complaints. [ECF No. 36 at 14]. Defendants have not, however, moved to strike or otherwise exclude evidence presented in Plaintiff's declaration, including her allegations concerning Bower. See id.
As Defendants note, the record indicates the bathroom incident concerning Joly occurred early in Plaintiff's pregnancy, prior to any requests she made for accommodations, and prior to her receiving medical confirmation that she was pregnant. The record is unclear as to whether Joly knew Plaintiff was pregnant at this time.
Defendants argue “[t]here also no evidence that Plaintiff was denied restroom breaks, especially as every Walmart Store has public restrooms available to anyone at any time .... all associates receive scheduled breaks at least every two hours (more frequently than her doctor requested), and there is no evidence that anyone ever forced her to forego a break.” [ECF No. 36 at 10 n.8, see also ECF No. 28-1 at 8-9].
Plaintiff also alleges that Joly stated to her fiance, while Plaintiff was pregnant, that Joly would “fire you, and your baby will end up on [welfare].” Plaintiff argues that Joly may have been motivated by racial discrimination in that Plaintiff is white, her fiance is black, and their child is mixed race [ECF No. 31 at 21 n.13]; however, Plaintiff has not brought any claim based on race. To the extent this alleged comment is admissible, it does not appear related to Plaintiff's claim of a hostile work environment, based on her pregnancy status, gender, or sex.
Plaintiff also points to Joly's alleged treatment of her regarding her neuropathy in 2018, where Plaintiff alleges he told her to move heavy items, with assistance, and threatened to coach her thereafter when she refused, even though she had been provided an accommodation for her neuropathy.
As to these allegations, the parties dispute whether the unwelcomed conduct was sufficiently severe or pervasive to sustain Plaintiff's claim. In determining whether conduct is sufficiently severe and pervasive, courts look to the “totality of the circumstances,” including 1) the frequency of the discriminatory conduct, 2) the severity of the conduct, 3) whether the conduct was physically threatening, humiliating, or a mere offensive utterance, and 4) whether it unreasonably interferes with an employee's work performance. See Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998). The plaintiff must show that she “subjectively perceived the environment to be abusive”, as well as that “the conduct was such that a reasonable person in the plaintiff's position would have found the environment objectively hostile or abusive.” Equal Employment Opportunity Comm'n v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (citations omitted). The Fourth Circuit has recognized that “plaintiffs must clear a high bar in order to satisfy the severe or pervasive test.” Id. For instance, “complaints premised on nothing more than rude treatment by coworkers, . . . callous behavior by one's supervisor, . . . or a routine difference of opinion and personality conflict with one's supervisor” are not actionable. Id. (citations omitted).
Here, Plaintiff has submitted sufficient evidence that she perceived her environment to be abusive, but has failed to “clear a high bar” that a reasonable person in her position would have found the environment objectively abusive. Although Bower's name-calling is offensive, there is no indication how pervasive it was or in what context the name calling occurred, nor is it clear each instance is related to Plaintiff's gender, sex, or disability. See, e.g., Martin v. Merck & Co., 446 F.Supp.2d 615, 629 (W.D. Va. 2006) (“While these [sixteen] incidents may be evidence of an unpleasant working environment, they do not permeate Merck ‘with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'” (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)); Clarke v. New York City Dep't of Educ., C/A No. 18-1850-NG-GJO, 2020 WL 6047426, at *9 (E.D.N.Y. Oct. 13, 2020) (“Principal Christie's criticism of Ms. Clarke was at times unrelenting and needlessly personal. However, with a handful of exceptions, Principal Christie confined herself to discussing Ms. Clarke's job performance. The other comments, such as calling Ms. Clarke fat and imitating her rubbing her belly and waddling, are too sporadic to sustain a hostile work environment claim on their own.”).
As to Plaintiff's argument that she was subjected to increased scrutiny, even yelling, regarding her bathroom breaks, this evidence, even when taken in light most favorable to her and considering all other evidence submitted by Plaintiff in support of her claim, does not amount to a workplace permeated with hostility and harassment, particularly where Plaintiff's evidence is focused on one or two specific occurrences. See, e.g., Graciani v. Patients Med., P.C., No. 13-CV-2751 NGG RLM, 2015 WL 5139199, at *22 (E.D.N.Y. Sept. 1, 2015) (“Dr. Gulati's reaction to Plaintiff's bathroom usage, if true, was inappropriate, but was not severe or pervasive enough to render the work environment hostile.”); Medina v. Adecco, 561 F.Supp.2d 162, 173 (D.P.R. 2008) (granting summary judgment where supervisor made negative comments each time pregnant employee took pregnancy-related bathroom break).
Plaintiff testified that although Joly “gave me trouble and harassed me about my pregnancy,” this trouble and harassment “started before my pregnancy.” [ECF No. 31-57 at 277:10-12]. To the extent that Plaintiff bases her hostile work environment claim on her sex or gender status or based on her disabilities unrelated to her pregnancy, the above analysis applies.
This case stands in contrast to those where the courts have found that “Plaintiff has demonstrated that a reasonable person would view her work environment as hostile or abusive, that she experienced the environment as such, and that such hostility was created ‘because of' her sex,” finding as follows:
Kwait's conduct prior to Plaintiffs maternity leave-during which he made Plaintiff hire a Spanish teacher even though such an assignment went beyond her contract; did not excuse Plaintiff from hallway and cafeteria duty, despite her pregnancy; subjected Plaintiff to intense scrutiny, including of her bathroom usage, and “yelled” at her for using the bathroom; expressed “disdain” for Plaintiff; and prevented Plaintiff from attending a teacher development course-may have been insufficient to make out a hostile work environment claim. See Nugent v. St. Lukes-Roosevelt Hosp. Ctr., 303 Fed.Appx. 943, 945 (2d Cir. 2008) (“derogatory language,” “dismissive comments,” and “intense scrutiny” insufficient to make out hostile work environment claim). However, when this conduct is viewed alongside Kwait's conduct after Plaintiff's return from maternity leave, it is clear that summary judgment would be inappropriate. As discussed above, if the record is read in Plaintiff's favor, as required at this stage, it appears that Kwait forced Plaintiff to produce unnecessary doctor's notes, ordered her to leave the school without justification, and then falsified an account of her insubordination.Zambrano-Lamhaouhi v. New York City Bd. of Educ., 866 F.Supp.2d 147, 174 (E.D.N.Y. 2011) (emphasis added) (denying summary judgment as to plaintiff's hostile work environment brought pursuant to 42 U.S.C. § 1983 and other statutes); Rodriguez v. Andamios de Puerto Rico, Inc., C/A 08-1408-GAG-MEL, 2009 WL 1361957, *9 (D.P.R. May 8, 2009) (collecting cases and holding “some of the actions attributed to Alvarez are mere references to Rodriguez's pregnancy and [bathroom] breaks incident to her pregnancy. Although Rodriguez does describe some intimidating conduct, such as shouting, Alvarez did not use any offensive names and Rodriguez has not presented evidence of . . . continuous and prolonged harassment .... Furthermore, . . . . Rodriguez has not presented evidence of a clear difference between fair treatment prior to pregnancy and abusive treatment after becoming pregnant.”) (citations omitted)).
As to Joly's threatening to coach Plaintiff in 2018 for her failure to lift heavy items, Plaintiff argues that “[w]hen a manager threatens to coach an employee if she does not perform work which is likely to aggravate or cause physical harm, it [is] not ‘merely unpleasant,” it is ‘severe harassment.'” [ECF No. 31 at 24 (citing Fox v. Gen. Motors Corp., 247 F.3d 169, 179 (4th Cir. 2001))]. Here, however, unlike in Fox, Plaintiff was not required to perform tasks that were too physically demanding and did not experience the significant other harassment in evidence in that case. Instead, Plaintiff testified that she “got into trouble” only once for not lifting something beyond her capabilities, but only in that Joly threatened to coach her.
Plaintiff also argues that “the harassment indeed altered the terms and conditions” of her employment in that “managers assigned her work that obviously exceeded her limitations for her disability,” causing “aggravations of her disabilities.” [ECF No. 31 at 24]. However, as discussed throughout this report and recommendation, Plaintiff has not submitted evidence, beyond the one time Joly asked her to move something too heavy with assistance, and she refused, that managers assigned her work inconsistent with her requested accommodations.
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's claims for hostile work environment.
2. Failure-to-Accommodate Claim
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees, . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). This “includes . . . not making reasonable accommodations.” 42 U.S.C. § 12112(b)(5)(A). To establish a claim for a failure to accommodate, a plaintiff must show that (1) she suffers a disability; (2) her employer had notice of the disability; (3) with reasonable accommodations, she is otherwise qualified to perform the employment position in question; and (4) her employer refuses to make such reasonable accommodations. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (citations omitted).
The plaintiff bears both (1) the burden of identifying an accommodation that would allow a qualified individual to perform the job, and (2) the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable. Maffett v. City of Columbia, C/A No. 3:19-0832-MGL, 2021 WL 4237189, at *7 (D.S.C. Sept. 17, 2021) (citing Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir. 1997) (overruled on other grounds by Baird v. Rose, 192 F.3d 462 (4th Cir. 1999)). “A reasonable accommodation is one that is feasible or plausible.” Id. (citing Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407, 414 (4th Cir. 2015)).
As clarified by Plaintiff in briefing, her “failure to accommodate claim arises from the requests for accommodation that she made while she was pregnant.” [See ECF No. 31 at 25]. As recognized by Plaintiff, Sedgewick provided her managers with an option as to accommodations: “you may temporarily excuse the associate from performing any job duties which would violate her work restrictions or temporarily assign her to work elsewhere in another position or area which is consistent with her restrictions.” [ECF No. 31-8 at 2]. Plaintiff argues that Defendants should have offered her the accommodation of being transferred to a cashier position.
Notwithstanding this clarification, Plaintiff also argues that Defendants failed to accommodate her neuropathy in 2018 by failing to engage in the interactive process and where Defendants provided her doctor with “a generic ‘Accommodation Medical Questionnaire,'” resulting in her doctor being unaware of her essential job functions such as having to push heavy carts. [ECF No. 31 at 5, 26]. As stated above, Plaintiff's allegations in support of her failure-to-accommodate claims concerning acts that occurred prior to August 24, 2019, including Defendants' alleged failure to accommodate her neuropathy, are untimely.
Plaintiff has failed to carry her burden that transferring her to be a cashier would allow her to perform her job. First, Plaintiff does not address evidence presented by Defendants that transferring to a cashier role would have required her to perform the very same stocking duties that she complains about in this case. [ECF No. 28-6 at 27:15-22 (Hancock testifying that “mostly it's the cashiers who were also doing stock duties”); ECF No. 288 at 56:19-20 (Joly testifying that “Cashiers still lift. They're on the front end .... but the cashiers also go out and work freight”); ECF No. 28-9 at 29:4-17 (Victoria Nero, another employee, testifying cashiers were required to do stocking as part of the position, sometimes involving heavier items); ECF No. 28-7 at 50:6-17 (Brandi Miller testifying “[y]ou have to still stock as a cashier, candy, freight, across that front”)].
Plaintiff argues that “there is no evidence that stocking is an [essential work function” for a cashier so that was not a basis to deny her this transfer.” [ECF No. 31 at 31]. However, this does not address evidence submitted by Defendants that cashiers, as well as stockers, engaged in stocking. See, e.g., Cook v. United Parcel Serv., Inc., C/A No. 21-1693, 2022 WL 1090251, at *2 (4th Cir. Apr. 12, 2022) (“[T]he decision about a position's essential functions belongs, in the first instance, to the employer; it accordingly merits considerable deference from the courts.”) (citing Elledge v. Lowe's Home Ctrs., LLC, 979 F.3d 1004, 1009 (4th Cir. 2020)).
Second, as both parties appear to agree, Defendants were not obligated to provide Plaintiff with an accommodation of her choice. See, e.g., Fink v. Richmond, 405 Fed.Appx. 719 (4th Cir. 2010) (“Importantly, however, the ADA and the Rehabilitation Act do not require that an employer provide a disabled employee with a perfect accommodation or an accommodation most preferable to the employee.”); E.E.O.C. v. Firestone Fibers & Textiles Co., 515 F.3d 307 (4th Cir. 2008) (Title VII); Keever v. City of Middletown, 145 F.3d 809 (6th Cir. 1998) (ADA).
Finally, Defendants have presented evidence that Plaintiff was not transferred to be a cashier because she would leave her job without notifying management, a habit inconsistent with the position of cashier at the front of the store. As Brandi Miller testified, “You have to still stock as a cashier, candy, freight, across that front, but you still have to be the person watching the door.... You cannot disappear from the front end.” [ECF No. 28-7 at 50:6-17]. Defendants have submitted evidence that in the 15 months leading up to her termination in early April 2020, Plaintiff did not work her scheduled shifts on 131 instances, specifically as follows:
• Absent from work: 66 days (7 of which were unexcused)
• Late into work: 28 times (0 of which were unexcused)
• Left work early: 28 times (2 of which were unexcused)
• Incomplete shift (missing more than 50% of her shift): 9 times (1 of which was unexcused)[ECF No. 36 at 5-6 (citing ECF No. 28-4 at 42-45, ECF No. 31-3)]. Additionally, Plaintiff admitted in her deposition that she had difficulties informing management when she needed to leave work. [ECF No. 31-57 at 130:3-132:18].
Plaintiff argues in briefing that she left work consistent with her intermittent leave accommodation or because of the way she was treated. [See, e.g., ECF No. 31 at 6 (“In other words, [Joly] prevented a pregnant woman from taking necessary bathroom breaks, and then deemed her unreliable for urinating on herself.”)]. This evidence indicates Plaintiff may have left work through no fault of her own, but does not carry her burden that she could perform the position of cashier. See, e.g., Buckles v. First Data Res., Inc., 176 F.3d 1098, 1101 (8th Cir. 1999) (holding “unfettered ability to leave work at any time is certainly not a reasonable accommodation here.”); Carr v. Reno, 23 F.3d 525, 531 (D.C. Cir. 1994) (holding “to require an employer to accept an open-ended ‘work when able' schedule for a time sensitive job would stretch ‘reasonable accommodation' to absurd proportions. . . .”).
Plaintiff additionally argues that she was forced to stay as a stocker and do work that violated her work restrictions.Plaintiff argues that the accommodations provided, frequent bathroom breaks, intermittent use of stool or chair, 25 lbs. lifting restriction, a standing restriction, no climbing ladders, 15-minute breaks, and an eight-hour shift limit, were violated in that, following being provided these accommodations, her work did not change and she was assigned to work the heaviest departments. However, evidence cited by Plaintiff does not support her position. First, as testified by Dickert and others, being placed in “heavy” departments does not mean heavy lifting where, for example, in furniture, lamps and pillows needed to be unpacked. Second, Plaintiff herself testified although it was difficult to get assistance to help with heavier items, she only “got in trouble” once for not lifting something, she was told to get assistance, and she was not coached for this instance.
Plaintiff additionally argues that she was only allowed to use a stool twice and when she did, Hancock told her to “look busy.” [ECF No. 31 at 27]. However, Plaintiff's citations to the record do not support these allegations, and the court is unable to determine where, if at all, these allegations are otherwise supported by the record. [See, e.g., ECF No. 31-57 at 353:11-22 (Plaintiff testifying that “they would tell me .... You need to at least make yourself look busy ....”)].
Plaintiff also argues Joly and Bower told her she could only use the bathroom during breaks [ECF No. 31-54 ¶ 3] and that “accommodation was only ‘granted' on paper.” [ECF No. 31 at 27]. Plaintiff has also submitted evidence that she chose not to take bathroom breaks because of the harassment she faced, as discussed above concerning Plaintiff's hostile work environment claim. [ECF No. 31-57 at 192:12-15 (“But I was-I was nervous, so yeah, I would hold off going to the bathroom, even though I was allowed to, because I was scared, I mean.”)]. It is undisputed that Plaintiff was allowed the accommodation of frequent bathroom breaks, and she has submitted evidence that Joly and Bower harassed her on this issue, notwithstanding. However, failure to accommodate allegations concerning acts prior to August 24, 2019 are untimely, and the record shows that Plaintiff's allegations concerning Joly and Bower's behavior as to her bathroom usage occurred prior to August 24, 2019, particularly in that the main complained-of event, where Plaintiff alleges she urinated on herself, occurred, at the latest, early January 2019 and where Plaintiff was on continuous leave for the birth of her child starting September 3, 2019. There is evidence Plaintiff may have worked roughly 20 hours from August 24, 2019, to September 3, 2019. [See ECF No. 28-13 at 38-39, see also ECF No. 28-4 at 41]. However, the record is silent as to this time period concerning Joly and Bower's treatment of Plaintiff concerning bathroom breaks.
Plaintiff also argues that Defendants were unreasonable in denying her request for intermittent leave, five times a month with each time lasting one day, and instead providing intermittent leave two times per month with each time lasting three days. [ECF No. 31 at 28]. However, Plaintiff testified she never appealed any accommodation granted by Sedgwick and that this leave approval was sufficient to meet her needs. [ECF No. 31-57 at 177:2-9, 19717)]. As indicated above, Plaintiff, on average, did not work her scheduled shift 9 times per month, as a part-time associate. Based on this evidence, Plaintiff has failed to show that her intermittent leave request that was denied would allow her to perform her job. As argued by Defendants, “as the attendance records show, management granted Plaintiff for more leeway on attendance than her doctor estimated she needed.” [ECF No. 36 at 6 n.2].
Defendants also argue that Plaintiff was not a qualified individual with a disability in light of her attendance issues. [See ECF No. 36 at 6 (citing Tyndall v. National Educ. Centers, Inc., 31 F.3d 209, 215 (4th Cir. 1994) (noting that “[e]xcept in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise” and holding that “a regular and reliable level of attendance is a necessary element of most jobs”) (citations omitted)); Jordan v. Founders Fed. Credit Union, C/A No. 0:30-1923-17BD, 2004 WL 3266036, at *7 (D.S.C. Aug. 3, 2004), aff'd, 122 Fed.Appx. 644 (4th Cir. 2005) (stating, “As Plaintiff has failed to present any evidence to refute the cited record evidence showing that she either did not or could not regularly report to work, she was not a ‘qualified' individual under the ADA.”)].
Plaintiff additionally argues that throughout the relevant time period, even though Sedgwick directed otherwise, no conversations occurred with her managers as to her needed accommodations. However, the Fourth Circuit has specifically noted “an employer will not be liable for failure to engage in the interactive process if the employee ultimately fails to demonstrate the existence of a reasonable accommodation that would allow her to perform the essential functions of the position.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 581 (4th Cir. 2015). Thus, because Plaintiff failed to establish there was a reasonable accommodation, Defendants were not required to participate in an interactive process.
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's failure-to-accommodate claim.
3. Retaliation Claims
When, as in this case, the plaintiff relies upon circumstantial evidence of misconduct in support of a retaliation claim, the burden-shifting framework of McDonnell Douglas Corp. applies. A plaintiff first must establish a prima facie case of retaliation by showing that: “(1) he engaged in protected activity; (2) [the employer] acted adversely against him; and (3) the protected activity was causally connected to the adverse action.” Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). Once the employee establishes a prima facie case, the burden shifts to the employer to rebut the inference of retaliation. McDonnell Douglas, 411 U.S. at 802. Although the employer's burden is not onerous, it must articulate “some legitimate, nondiscriminatory reason” for the adverse employment action. Id. Once the employer produces a legitimate, nondiscriminatory reason, the burden returns to the plaintiff to prove that the defendant's stated reason is pretextual. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
To that end, the employee must either show that the employer's explanation is “‘unworthy of credence' or . . . offer[ ] other forms of circumstantial evidence sufficiently probative of” the retaliation.” Mereish v. Walker, 359 F.3d 330, 332 (4th Cir. 2004). This same framework governs all of Plaintiff's potential claims of retaliation. See Savage v. Maryland, 896 F.3d 260, 276 (4th Cir. 2018) (Title VII); Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 304 (4th Cir. 2016) (FMLA); Reynolds v. American Nat. Red Cross, 701 F.3d 143, 154 (4th Cir. 2012) (ADA).
Plaintiff argues she engaged in two protected activities: (1) applying for FMLA leave and (2) complaining about discrimination. [ECF No. 31 at 32]. Plaintiff then argues, in retaliation, two adverse employment actions occurred: (1) being “inexplicably taken off the schedule . . . for five weeks,” starting May 23, 2019, and (2) being terminated. Id. at 32-33. The first alleged adverse employment action occurred in May and June 2019. As stated above, Plaintiff's allegations pre-dating August 24, 2019 as to claims for retaliation are untimely. Therefore, the undersigned turns to Plaintiff's retaliation claim concerning her termination.
Plaintiff has failed to establish a prima facie case of retaliation. Although temporal proximity may suffice to establish causation when the protected activity and adverse action are “very close” or less than, for example, three months apart, see, e.g., Ali v. BC Architects Engineers, PLC, 832 Fed.Appx. 167, 173 (4th Cir. 2020), as amended (Oct. 16, 2020) (holding two weeks close enough,but three months “too tenuous to support a reasonable inference of causation”), here, Plaintiff's employment was terminated on April 5, 2020, and Plaintiff has failed to submit evidence of any protected activity occurring close in time prior to that event. As argued by Defendants, and not address by Plaintiff:
Plaintiff cannot establish the third element of her retaliation claim, given her poor attendance issues and the fact that Plaintiff has shown no evidence that Hancock terminated her on the basis of her complaints (the most recent of which occurred more than seven months prior to her termination) or her use of FMLA leave (which most recently expired more than six months prior to her termination).[ECF No. 28-1 at 30].
Further, Plaintiff cannot establish that Hancock, who made the decision to terminate Plaintiff's employment, knew of the majority of her protected activities, none of which occurred in the six to seven months prior to her termination. See, e.g., Barnes v. Charles Cnty. Pub. Sch., 747 Fed.Appx. 115, 119 (4th Cir. 2018) (“Barnes presented no evidence to indicate that the principal was aware of Barnes' protected activity. An employee is not insulated from discipline simply because he engaged in protected activity.”) (citations omitted)).
To the extent that Plaintiff argues that it was Joly that terminated her employment, notwithstanding Joly and Hancock's testimony otherwise [see ECF No. 31 at 32, ECF No. 31-34], and to the extent that the record shows Joly was aware of Plaintiff's protected activity, the timeline is still too attenuated to support Plaintiff's prima facie case of retaliation nor, as discussed more above, has Plaintiff shown Defendants' offered reason for her termination is pretext.
Finally, even if Plaintiff had established a prima facie case, she has failed to show Defendants' legitimate, non-discriminatory reason for her termination-that she failed to abide by the COVID-19 policy and was out from work roughly three weeks without notifying Sedgwick-is pretext. More specifically, Hancock testified as follows:
Q: What was an associate supposed to do if she was going to be out for more than three days?
A: She was to call Sedgwick and report everything to them, and then they would ask for more information to be sent, faxed, in that nature.
Q: Was the same true for COVID-related absences?
A: Yes, ma'am, they were.
Q: If an associate failed to contact Sedgwick and was out more than three days for an extended period, what would happen in terms of occurrences and their employment? .... Would they incur occurrences or points?
A: Yes, they would go under “unauthorized.” They would go under points against that person because we don't have any information....
Q: Once they are over five points, what would happen at that point?
A: They would be terminated.
Q: Is that what happened with Annette Turner?
A: Yes, ma'am.[ECF No. 31-59 at 14-15].
Plaintiff argues “pretext abounds,” in that she complied with the COVID-19 policy directions issued on March 10, 2020. [ECF No. 31 at 33]. Plaintiff further argues as follows:
It is pretext to terminate an associate for a policy change that occurred while she was on leave and had no reason to be aware of. Especially, when the policy in effect when she left, stated that it remained it would remain in place during the period she was out (through the end of April).Id. at 34. Citing the Fourth Circuit, Plaintiff argues that “[w]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer's actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration ....” Id. (citing Okoli v. City Of Baltimore, 648 F.3d 216, 223 (4th Cir. 2011)).
Plaintiff does not dispute that she was in violation of the March 18, 2020 policy and also does not address the key piece of evidence in support of Defendants' position, that the March 10, 2020 letter that Plaintiff relies upon states “[m]ore information on all of these options will be available on OneWalmart.” [ECF No. 31-32]. Although Plaintiff argues that she called in as she was instructed based on the direction provided to her in the March 10, 2020 letter, she offers no evidence or case law that Defendants acted impermissibly, or without legitimate reason, when they issued further instructions regarding their COVID-19 leave policy and, thereafter, expected Plaintiff to abide by the new instructions.
Plaintiff may, with good reason, decry this as unfair. However, as stated by the Fourth Circuit, even if a plaintiff is wrongly fired for misconduct, conduct she did not even engage in, “that is unfortunate, but a good-faith factual mistake is not the stuff of which Title VII violations are made.” Powell v. Biscuitville, Inc., C/A No. 20-2378, 2021 WL 2434011, at *2 (4th Cir. June 15, 2021) (citing Villa v. CavaMezze Grill, LLC, 858 F.3d 896, 903 (4th Cir. 2017)). The court does not “sit as a super-personnel department, weighing the prudence of employment decisions made by the defendants.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998) (holding that pretext is not a vehicle for substituting the court's judgment for that of the employer). The court need not decide “whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citation omitted).
Plaintiff additionally points to Hancock's testimony that he did not “think” her absences were for COVID, as well as Hancock's inability to explain why he logged into the system as Joly to sign the exit interview. [ECF No. 31 at 34].However, a plaintiff cannot establish pretext by simply “focusing on minor discrepancies that do not cast doubt on the explanation's validity, or by raising points that are wholly irrelevant to it.” Hux v. City of Newport News, 451 F.3d 311, 315 (4th Cir. 2006). Hancock's testimony does not cast doubt on Defendants' legitimate, non-discriminatory explanation for terminating Plaintiff's employment.
Plaintiff additionally appears to argue it was suspicious that Hancock changed her absences to unexcused hours after Kirkland “excused her absence for Covid.” [ECF No. 31 at 34]. However, Kirkland testified he thought Plaintiff was following the relevant policy, and therefore approved her absences, “[b]ased on communication with the associate that she was going to file a Sedgwick-approved leave of absence for that time, because it would have been excused if she would have done that.” [ECF No. 31-61 at 82:23-83:4, 96:23-97:8].
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's claim for retaliation.
4. Wrongful Termination Claim
In an ADA wrongful discharge case, a plaintiff establishes a prima facie case if she demonstrates that (1) she is within the ADA's protected class; (2) she was discharged; (3) at the time of her discharge, she was performing the job at a level that met her employer's legitimate expectations; and (4) her discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001). The McDonnell Douglas burden-shifting scheme applies to ADA wrongful termination cases, as it did above regarding Plaintiff's retaliation claim. Here, for the same reasons articulated above, Plaintiff has failed to establish that the legitimate, non-discriminatory reasons offered by Defendants for her termination are pretext for unlawful discrimination.
Accordingly, the undersigned recommends the district judge grant Defendants' motion for summary judgment as to Plaintiff's claim for wrongful termination.
To the extent Plaintiff is bringing wrongful termination claims in violation of Title VII and the FMLA [see ECF No. 31 at 34], for the same reasons articulated above, those claims fail.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge grant Defendants' motion for summary judgment. [ECF No. 28].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
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).