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Wal-Mart Disabled Cart Pusher’s ADA claims survived Summary Judgment

By Jessica Ellis, J.D.

In EEOC v. Wal-Mart Stores Inc., on behalf of Paul Reina—a deaf, visually impaired, and intellectually disabled, cart pusher—the EEOC sued Wal-Mart Stores Inc. (“Wal-Mart”) under the Americans with Disabilities Act (“ADA”) for failure to accommodate Mr. Reina’s request to work with a “job coach.”  Wal-Mart moved for summary judgment, which on December 18, 2018, a federal district court denied on the grounds that disputed issues of material fact remained as to whether Mr. Reina was a “qualified” individual and “whether allowing a permanent job coach was a reasonable accommodation.”

In 1998, Mr. Reina began working at Wal-Mart as a cart pusher.  In 1999, Wal-Mart allowed Mr. Reina several accommodations, including the ability to work with a job coach.  The job coach assisted in several ways, including watching for oncoming cars, helping Mr. Reina stay focused on tasks, prompting Mr. Reina to help a customer if a customer needed help loading their car, and steering longer lines of carts.  Over the years, Mr. Reina worked with several different job coaches and, with their assistance, Mr. Reina’s performance ratings were generally positive.

Working with a job coach did not go without incident.  In 2012, a shift manager reported an altercation between Mr. Reina and a job coach.  Caught on tape, the job coach was seen physically abusing Mr. Reina.  The police said the report was unfounded because there were no physical injuries.  This incident, however, made Mr. Reina’s direct manager question Mr. Reina’s need for a job coach and asked Mr. Reina to provide medically supported information about his condition and reasonable accommodation.  Mr. Reina’s physician confirmed that Mr. Reina needed a job coach to do Mr. Reina’s “seeing and hearing.”  What happened after that is disputed.  The manager claimed that he asked for more information but Mr. Reina denied that the manager made such request, instead telling him to wait to hear from him.  Mr. Reina was not placed on a schedule or contacted and lost access to Wal-Mart’s job portal.

The court first considered whether Mr. Reina was a “qualified” individual under the ADA.  A “qualified” individual is an individual with a disability who, with or without an accommodation, can perform the essential functions of the job held or desired.  A Wal-Mart cart pusher has many duties, including maintaining availability of carts, organizing carts and flatbeds, assisting customers with transporting items, loading merchandise into customer vehicles, resolving customer issues, promoting products and services, and identifying and acknowledging customers’ needs.  Wal-Mart relied on that job description, as well as the testimony of Mr. Reina’s manager and several employees, to show that there were several essential duties outside of cart pushing that Mr. Reina could not do; thus, Wal-Mart argued, Mr. Raina was not a “qualified” individual.  This evidence was disputed, however, by evidence presented by Mr. Reina showing that not all of the functions were essential.  In fact, 95 to 98 percent of a cart-attendant’s time is spent simply pushing carts.  As such, the court held that a reasonable jury could conclude that the essential function was cart collecting and placement and customer interaction is not essential.

The court then considered whether Mr. Reina’s request for a job coach was a reasonable accommodation.  A reasonable accommodation under the ADA is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.   Wal-Mart contested that a “permanent” job aide was a reasonable accommodation, pointing to few federal districts courts in other jurisdictions, which have held that a permanent or indefinite use of a job coach is not a reasonable accommodation.  The court noted that while limited law existed on the subject, there was EEOC guidance that an employer may be required to allow a job coach to accompany an employee at a job site, despite that the regulation refers to a “temporary” job coach.  A few courts have also held that an indefinite job coach is not a reasonable accommodation, but the court was not persuaded, explaining that the legal authorities to which Wal-Mart cited were not binding authorities, and the Seventh Circuit had not ruled on the issue.  Wal-Mart argued that a permanent job coach would pose an undue hardship, claiming that there was potential for legal and safety risks, especially since an incident between Mr. Reina and his job aide had already been reported.  The court, however, was unpersuaded, particularly given that the job coach in question no longer served as Mr. Reina’s coach.   As such, the court denied Wal-Mart’s motion for summary judgment on the ADA claims.

If you have a disability and you believe your employer refused your request for a reasonable accommodation, contact The Harman Firm LLP.

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