United States District Court, E.D. Washington
SANDY ANDERSON and BRUCE ANDERSON, wife and husband, Plaintiff,
WAL-MART STORES, INC., Defendant.
ORDER GRANTING, IN PART, AND DENYING, IN PART,
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Stanley A. Bastian United States District Judge.
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.
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
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.
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.”
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 violationand 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
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 and Defendant never explained to her that
the two written coachings she received stayed on her record
for a period of one year.
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
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.
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.
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.
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.
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.
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.
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).
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).
Disability Discrimination (Disparate Treatment)
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 ...