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Anderson v. Wal-Mart Stores, Inc.

United States District Court, E.D. Washington

May 11, 2017

SANDY ANDERSON and BRUCE ANDERSON, wife and husband, Plaintiff,


          Stanley A. Bastian United States District Judge.

         Before the Court is Defendant's Motion for Summary Judgment, ECF No. 16, and Plaintiffs' related Motion to Strike, ECF No. 25. A hearing was held on April 25, 2017 in Spokane, Washington. Plaintiffs were represented by Stephen Bergman and Lawrence Kuznetz. Defendant was represented by Steven Goldstein. At the hearing, Defendant informed the Court that Plaintiffs' Motion to Strike, ECF No. 25, is uncontested. That motion is granted. For the reasons discussed herein, Defendant's Motion for Summary Judgment, ECF No. 16, is granted, in part, and denied, in part.

         Undisputed Facts

         Plaintiff Sandy Anderson (Plaintiff) was hired by Defendant as a department supervisor in the fabrics and crafts department on July 25, 2012. Her duties included inventory control, stocking, clearance, merchandising, setting up displays, and controlled ordering. Defendant had a policy of requiring floor associates, including Plaintiff, to clock out within five hours of the start of their shift in order to take a thirty-minute meal break. This policy comports with Washington law requiring that employees “shall be allowed a meal period of at least thirty minutes which commences no less than two hours nor more than five hours from the beginning of the shift.” Wash. Admin. Code § 296-126-092(1). The policy provides that “[a]ssociates who violate this policy may be subject to disciplinary action up to and including termination.” ECF No. 20. The policy further states that “[t]he level of discipline imposed will depend in part on the number of rest breaks and/or meal period exceptions that you incur.” Id.

         There were several additional policies in place during Plaintiff's term of employment with Defendant that are relevant to this case. First, the “10-foot rule” requires that an employee greet and assist a customer when they come within ten feet of him or her. Second, the customer safety policy requires an employee to guard a safety hazard in the store and remain present to guard the hazard from customer access until a supervisor is available to respond to and address the safety issue. And third, the department manager is not allowed to leave the department unmanned.

         On October 23, 2012, Plaintiff failed to take a lunch break after her fifth consecutive hour of work had passed, missing the cutoff time by five minutes. Plaintiff testified that she was assisting a customer pursuant to the “10-foot rule” at this time. She further testified that Defendant conducted no investigation to determine whether Plaintiff was responsible for the violation, considering that she was assisting a customer, and Plaintiff was never asked her version of events. This violation resulted in disciplinary action on November 5, 2012, when Plaintiff received a “First Written Coaching.”

         On November 7, 2012, Plaintiff again violated Defendant's meal break policy by taking her lunch break after her fifth consecutive hour of work had passed. Plaintiff testified that this occurred because a display module fell on a customer across from Plaintiff's desk just as she was approaching her fifth consecutive hour of work. At the time, Plaintiff's supervisor was gone and, pursuant to the store safety policy, Plaintiff went to assist the customer and clean up the broken display. This time she was twenty-six minutes late for her lunch break. Plaintiff notes that, had she simply left the display on the floor as a hazard for other customers, she would have been subject to discipline under the store's safety policy. However, Defendant conducted no investigation into the violation[1]and Plaintiff was not asked for her version of events. This second violation resulted in a “Second Written Coaching” on November 12, 2012 and Plaintiff was notified that a third violation would be grounds for discipline up to and including termination.

         On December 4, 2012, Plaintiff again violated Defendant's meal break policy. She testified that she was in the middle of cutting fabric for three other customers, and did not leave those customers as a result of the 10-foot rule. As a result, she clocked out six minutes late for lunch. This third violation resulted in a “Third Written Coaching, ” which stated that a fourth violation would result in termination. Plaintiff argues that, again, no investigation was conducted[2] and Defendant never explained to her that the two written coachings she received stayed on her record for a period of one year.

         On March 8, 2013, Plaintiff suffered an on the job injury to her back and neck while lifting heavy safes with another employee. Plaintiff felt pain at the time but was not aware of the extent of her injury, and continued working. The following Monday, March 11, 2013, Plaintiff reported her injury to a human resources employee who expressed concern about the store being understaffed and asked Plaintiff whether she thought she needed to leave work. Plaintiff viewed this as an implication that she should not seek medical treatment for the injury, and was told that if she needed medical treatment she should report her injury to her supervisor, Kristen Twiss (Twiss). Part of Plaintiff's belief that she was being told not to seek treatment is based on her testimony that Defendant discouraged the filing of workers' compensation claims. Specifically, Defendant had a policy to pay a yearly store-profit bonus to supervisors and managers, including Plaintiff. However, any workers' compensation claim filed by an employee directly affected the amount of the bonus each supervisor or manager would receive because Defendant is a self-insured entity. During a meeting, Defendant actively discouraged the filing of workers' compensation claims, and when an assistant manager told employees that each claim filed cost the store $12, 000, everyone “booed” at an employee who had filed a claim.

         On March 14, 2013, Plaintiff was moving a box of decorative rocks and felt an immediate sharp pain in her neck and back. She again reported the injury and her need for medical treatment to human resources. Plaintiff was told that she should work through the pain, but Plaintiff tasked the associates in her department with any job duties that required lifting over ten pounds to prevent further injury. On March 15, 2013, Plaintiff reported her injury to Twiss, informing her that she needed to seek medical treatment. Twiss had Plaintiff fill out an incident report and told her to take the weekend to see how she felt. Plaintiff did not seek treatment that day. On March 19, 2013, Plaintiff again asked Twiss permission to seek medical treatment for her injuries, but Twiss told her that she could not go to the emergency room because Defendant had a policy that a manager was required to drive an employee to the emergency room. Twiss stated that no manager was available, and Plaintiff returned to work. About an hour later, Twiss ordered Plaintiff to take a drug test pursuant to store policy, and subsequently told Plaintiff that she was free to drive herself to the emergency room. Plaintiff received treatment at the Rockwood Clinic in Spokane, was taken off work for three days, and filed a workers' compensation claim for her back injury and aggravation.

         On March 22, 2013, Plaintiff was treated by Dr. Christopher Goodwin, who placed her on modified duty beginning March 25, 2013, with a lifting restriction of 10 pounds, no crawling or vibratory tasks, and climbing a ladder occasionally. She was referred to Dr. John Goldfeldt for chiropractic treatment. Plaintiff returned to work on March 25, 2013, at which time she was presented with a Temporary Alternative Duty (TAD) form indicating that Clarissa Sanders (Sanders) was Plaintiff's new supervisor and that Sanders was aware of Plaintiff's medical limitations. By accepting the TAD offer, Plaintiff retained the same job title, compensation, hours, and benefits. However, if she experienced any problems in the performance of her duties, she was instructed to report them to her supervisor.

         Plaintiff testified that she understood that her regularly scheduled associates would continue to be available to assist her in the department. These included two full-time and two part-time associates that were staffed in Plaintiff's department during busier times. Sanders acknowledged that it would be difficult for a person with her restrictions to accomplish their daily tasks without associate help, yet Sanders failed to schedule either of the regular part-time associates in Plaintiff's department and failed to schedule one of the full-time associates. Near the end of March 2013, Plaintiff was told that her associates would not be returning to her department, but was not told why. Defendant states that this was because of seasonal demand. Plaintiff requested that the associates be returned to her department because of her restrictions, specifically to assist with putting away items left by the night crew, but no associates were scheduled in her department. Plaintiff likewise requested a radio to call for assistance in her department when she needed help lifting, but she was denied this request. On May 9, 2013, Plaintiff was working alone in her department, picked up a mislabeled box, and further aggravated her back injury.

         Defendant notes that it has an “Open Door Policy” wherein employees may contact the human resources department or the Global Ethics Office. Employees are instructed to utilize the policy if they feel that they are being discriminated or retaliated against, or if they become aware of any conduct that may violate Defendant's Accommodation Policy. Defendant notes that Plaintiff reported having problems in performing her duties under the TAD restrictions pursuant to the “Open Door Policy” and that each time she was accommodated. However, Plaintiff did not report that her problems were due to her TAD restrictions, such as when she asked for her regularly scheduled associates and radio. Specifically, Plaintiff did not state that she needed accommodations because of her TAD restrictions, but rather so that she could complete her normal duties.

         On May 14, 2013, Sanders ordered Plaintiff to break down a display module. Plaintiff contends that Sanders was aware that this task would require her to lift in excess of ten pounds in violation of her TAD restrictions. Sanders did not schedule any associates to help her with this task. Sanders instructed Plaintiff that if she did not break down the display immediately, she would be written up. Plaintiff testified that she feared for her job, and instead of complaining, broke down the display. In following Sanders's instructions, Plaintiff exceeded the end of her shift by fifteen minutes in violation of Defendant's meal break policy. She testified that she was not asked for her version of events and no investigation occurred. On that day Plaintiff appropriately clocked out for her first lunch, but she was terminated for having clocked out late for a second lunch, although this was technically the end of her shift. Between March 19, 2013 and the date of her termination for “Misconduct with Coachings, ” May 25, 2013, Plaintiff had not been released to full duty work.

         Summary Judgment Standard

         Summary judgment is appropriate if the pleadings, discovery, and affidavits demonstrate there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed.R.Civ.P. 56(c)). There is no genuine issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party has the burden of showing the absence of a genuine issue of fact for trial. Celotex, 477 U.S. at 325. See also Fair Hous. Council of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001).

         When considering a motion for summary judgment, the Court neither weighs evidence nor assesses credibility; instead, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255. When relevant facts are not in dispute, summary judgment as a matter of law is appropriate, Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999), but “[i]f reasonable minds can reach different conclusions, summary judgment is improper.” Kalmas v. Wagner, 133 Wn. 2d 210, 215 (1997). In employment discrimination cases, “summary judgment in favor of the employer is seldom appropriate.” Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 144 (2004).


         The Washington Law Against Discrimination, Wash. Rev. Code § 49.60.010-.505 (WLAD) “states that it is an unfair practice for an employer to refuse to hire, discharge, or discriminate in compensation based on a person's sensory, mental, or physical disability.” Riehl, 152 Wn.2d at 144-45 (citing Wash. Rev. Code § 49.60, 010, .180(1)-(3)). An employee has two causes of action under Wash. Rev. Code § 49.60.180: (1) “failure to accommodate where the employer failed to take steps ‘reasonably necessary to accommodate the employee's condition”; and (2) a disparate treatment claim wherein the “employer discriminated against the employee because of the employee's condition.” Riehl, 152 Wn.2d at 145 (citing Jane Doe v. Boeing Co., 121 Wn.2d 8, 17 (1993)). An employee may also have a claim for retaliation under Wash. Rev. Code § 49.60.210 where an employee engages in a statutorily protected activity, the employee was discharged, and retaliation was a substantial factor behind the discharge. Vasquez v. State Dept. of Social and Health Servs., 94 Wn.App. 976, 984 (1999).

         1. Disability Discrimination (Disparate Treatment)

         Where, as here, a plaintiff lacks direct evidence of employment discrimination, “Washington courts use the burden-shifting analysis articulated in McDonnell Douglas [v. Green], 411 U.S. 792');">411 U.S. 792 [(1973)] to determine the proper order and nature of proof for summary judgment.” Scrivener v. Clark College, 181 Wn.2d 439, 445 (2014). Under the first prong of McDonnell Douglas, Plaintiff bears the burden of establishing a prima facie case, establishing a presumption of discrimination. Id. at 446. A prima facie case can be established where Plaintiff demonstrates that (1) she had a disability; (2) she was able to do her job; (3) she was discharged from employment; and (4) was replaced by someone who did not have a disability. Balkenbush v. Ortho Biotech Products, L.P., 653 F.Supp.2d 1115, 1122 (E.D. Wash. 2009). “Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” Id. (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 363-64 (1988)). If Defendant meets its burden, the third prong of McDonnell Douglas requires Plaintiff to produce sufficient evidence that ...

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