Tag: Walmart

For Whom the Class Tolls: “No Piggybacking Rule” Does In Would-Be Class in Ongoing Wal-Mart Saga

In 2011, the United States Supreme Court issued its landmark decision in Wal-Mart Stores, Inc., v. Betty Dukes, et al., decertifying a putative class of approximately 1.6 million current and former female Wal-Mart employees who claimed gender discrimination in wages and promotions in violation of Title VII. 564 U.S. 338 (2011).  The Court reversed the Ninth Circuit’s affirmation of class certification and determined the plaintiffs failed to meet the class “commonality” standard set out in Federal Rule of Civil Procedure 23. Id. at 349-60. The Dukes decision set in motion a number of spinoff regional cases, one of which – barring another grant of certiorari to the high court – met its end somewhat anticlimactically, when the Eleventh Circuit issued its August 3, 2017 order in Love, et. al. v. Wal-Mart Stores, Inc. No. 15-15260.

The Love plaintiffs included a sub-group of the Dukes plaintiffs who worked in the southeastern United States. These holdover Dukes plaintiffs were able to refile their claims because of the requirement that federal court discrimination plaintiffs first file with the Equal Employment Opportunity Commission. This rule effectively tolled the statute of limitations during the pendency of Dukes. But critically, under the Eleventh Circuit’s “no piggybacking rule”, tolling is limited to individual claims only, not class claims, which has also been adopted by the Fifth and Sixth Circuits.  The Love court previously left little room for argument when it noted in a 2013 order that “[t]he Eleventh Circuit categorically refuses to toll the limitations period for subsequent class actions by members of the original class once class certification is denied in the original suit.”  Thus, on October 16, 2015 the individual named plaintiffs and Wal-Mart settled and jointly filed a “stipulation of voluntary dismissal.”

On November 6, 2015, the Love appellants, made up of unnamed members of the would-be class, filed a motion to intervene solely to appeal the dismissal of class claims. This motion was denied 13 days later as moot, which, to make matters worse for the appellants, took them outside of their 30-day deadline to appeal the October 16 stipulated dismissal. The Eleventh Circuit thus found the appeal jurisdictionally barred, providing a rather sudden end to the winding multi-year litigation.

In light of this tangled and technical history, employers and their counsel should be sure to understand the differences in treatment of class actions and individuals under the relevant rules, regulations, and statutes. Though it can be tempting to move immediately to the standard substantive arguments against numerosity, commonality, typicality, and adequacy of the proposed class, the Wal-Mart cases show that knowing your way around the procedural thicket is another useful skill in avoiding or minimizing the cost of class litigation.

 This post was written by Kelly J. Muensterman of  Polsinelli PC.

[1] https://www.supremecourt.gov/opinions/10pdf/10-277.pdf

[2] http://hr.cch.com/eld/LoveWalmart080317.pdf

[3] Salazar–Calderon v. Presido Valley Farmers Ass’n, 765 F.2d 1334 (5th Cir.1985) and Andrews v. Orr, 851 F.2d 146 (6th Cir.1988)

[4] 2013 WL 5434565, at *2.

 For more legal analysis check out the National Law Review’s homepage.

Appellate Division Upholds Decision in Walmart Workers’ Comp Case

walmart-signA particularly noteworthy case was recently decided by the Appellate Division on November 20, 2015. This case, Colleen Fitzgerald v. Walmart, is so interesting because the Court found that the worker’s injured condition did not qualify as a work related injury simply because she felt a “pop” in her low back while walking at work.

The Petitioner, Colleen Fitzgerald, filed a claim for an accident that occurred on April 26, 2010, while she was working for Walmart. She stated that she was merely walking in the store and felt a “pop” in her low back. While at the time of the claim Ms. Fitzgerald said she felt the pop she was not doing anything other than walking, later testimony revealed that at some time prior to the incident she had been doing some lifting at work in her position as a zone merchandise supervisor.

She reported the accident to her manager, and after seeing her family doctor who diagnosed her with protruding lumbar discs, she took FMLA for 12 weeks and a leave of absence while she received treatment. She did return to work at Walmart for a period of time, however because she then had another non-work related slip and fall accident where she broke her elbow, she was ultimately terminated from her job at Walmart. There was never any authorized treatment provided by the Workers’ Compensation carrier for Walmart.

Petitioner filed two claim petitions, one for the specific incident that occurred on April 26th and an occupational claim for work she did from December 2008 through April 2010. Since Walmart denied both claims, petitioner filed a Motion for Medical and Temporary Disability benefits with the Workers’ Compensation Court. The Motion was heard by Judge Gangloff, who found in favor of Walmart, as did the Appellate Division on appeal.

In the trial before Judge Gangloff, both sides called medical experts to testify. Petitioner’s expert, Dr. Gaffney, testified that in his opinion petitioner’s injury was caused by her work at Walmart, while Respondent’s expert, Dr. Meeteer felt that the injury was not related.

The Appellate Division upheld Judge Gangloff’s decision under Close v. Kordulak and held that they found no reason to disturb his well-reasoned findings. They stated that the Judge reviewed the applicable case law and applied the two step “positional risk test” for determining whether the injury arose out of the course of employment. The first part of this test requires the petitioner to prove that “but for” the fact of employment the injury would not have happened. The next part of the test is to analyze the “nature of the risk” that caused the injury.

In this case, the Court concluded that that the petitioner failed to satisfy the first part of the test because “the facts here do not establish that the petitioner would not have been exposed to the risk if she had not been at work.” In other words, as she was simply walking when she felt the “pop” in her back, the back injury could have just as easily occurred while she was not at work. According Judge Gangloff, “she could have been walking anywhere at the time of onset of pain.” He found that there was nothing about the workplace that contributed to petitioner’s injuries. The Judge did not find that petitioner had a compensable occupational claim either, because the medical records did not support Dr. Gaffney’s opinion that her condition was somehow related to a progressive occupational condition.

COPYRIGHT © 2015, STARK & STARK

EEOC Sues Wal-Mart for Disability Discrimination And Harassment: Agency Says Retailer Denied Accommodations to Disabled Cancer Survivor

Agency Says Retailer Denied Accommodations to and Harassed a Disabled Cancer Survivor

CHICAGO – Wal-Mart Stores, Inc. violated federal law by failing to provide reasonable accommodations to an employee at its Hodgkins, Ill., store who was disabled by bone cancer and failing to stop harassment of the employee, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed yesterday.

According to Julianne Bowman, the EEOC’s district director in Chicago, who managed EEOC’s pre-suit administrative investigation, the Walmart store initially agreed to comply with employee Nancy Stack’s request that the company provide a chair in her work area in the fitting room and limit her scheduled work hours because treatment for bone cancer in her leg limited her ability to walk and stand. After complying with her scheduling accommodation for many months, the store revoked it for no reason. And the store did not ensure that a chair was in Stack’s work area, at one point telling her that she had to haul a chair from the furniture department every day, which was of course hard for her to do given her disability. Finally, the store transferred Stack from the fitting room to a greeter position, which did not comply with her restrictions on standing.

To add insult to injury, Bowman added, a co-worker harassed Stack by calling her names like “cripple” and “chemo brain,” imitated her limp, and removed or hid the chair the employee needed in her work area. Stack complained repeatedly, but the store took no action to stop the co-worker’s harassment.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of disability, which can include denying reasonable accommodations to disabled employees and subjecting disabled employees to a hostile work environment.

The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The case, EEOC v. Wal-Mart Stores, Inc., Civil Action No. 15-5796, was filed in U.S. District Court for the Northern District of Illinois, Eastern Division, and was assigned to U.S. District Judge Sharon Coleman. The government’s litigation effort will be led by Trial Attorney Ann Henry and supervised by EEOC Supervisory Trial Attorney Diane Smason.

“It’s hard to believe a retailer the size of Wal-Mart could not manage to consistently provide such a simple accommodation as a chair,” said John Hendrickson, the regional attorney for EEOC’s Chicago District Office. “Telling a disabled employee that she needs to drag a chair across the store every day is no accommodation at all. Employers have to provide reasonable accommodations unless doing so would be an undue hardship. EEOC is aware of no hardship that required Wal-Mart to suddenly change Stack’s schedule, deny her the use of a chair, and transfer her out of the fitting room where she had performed her job well for years.”

EEOC Trial Attorney Ann Henry commented, “No employee should have to go to work and face mocking and name calling because she had cancer. Employers who know about such vile harassment in their workplace have an obligation to stop it. Wal-Mart did not do that here, and the EEOC will seek to hold the company liable for that violation.

In July 2014, the EEOC filed a lawsuit against Wal-Mart alleging that it violated the ADA by firing an intellectually disabled employee at a Rockford Walmart store after it rescinded his workplace accommodation.

The EEOC’s Chicago District Office is responsible for processing discrimination charges, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its website at www.eeoc.gov.

This press release originally appeared in the EEOC Newsroom. 

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Wal-Mart to Pay $150,000 to Settle EEOC Age and Disability Discrimination Suit

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Keller Store Manager Was Harassed and Fired Because of His Age and Denied Accommodation for His Diabetes, Federal Agency Charged

Wal-Mart Stores of Texas, L.L.C. (Wal-Mart) has agreed to pay $150,000 and provide other significant relief to settle an age and disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC charged in its suit that Wal-Mart discriminated against the manager of the Keller, Texas Walmart store by subjecting him to harassment, discriminatory treatment, and discharge because of his age. The EEOC also charged that Wal-Mart refused to provide a reasonable accommodation for the man’s disability as federal law requires.

According to the EEOC’s suit, David Moorman was ridiculed with frequent taunts from his direct supervisor, including “old man” and “old food guy.” The EEOC further alleged that Wal-Mart ultimately fired Moorman because of his age. Such alleged conduct violates the Age Discrimination in Employment Act (ADEA), which prohibits discrimination on the basis of age 40 or older, including age-based harassment.

The EEOC’s suit also alleged that Wal-Mart unlawfully refused Moorman’s request for a reasonable accommodation for his diabetes. Following his diagnosis and on the advice of his doctor, Moorman requested reassignment to a store co-manager or assistant manager position. According to the suit, Wal-Mart refused to engage in the interactive process of discussing Moorman’s requested accommodation, eventually rejecting his request. Under the Americans with Disabilities Act (ADA), Wal-Mart had an obligation to reasonably accommodate Moorman’s disability.

The EEOC filed suit on March 12, 2014, (Case No. 3:14-cv-00908 in U.S. District Court for the Northern District of Texas, Dallas Division) after first attempting to reach a pre-litigation settlement through its conciliation process.

“Mr. Moorman was subjected to taunts and bullying from his supervisor that made his working conditions intolerable,” said EEOC Senior Trial Attorney Joel Clark. “The EEOC remains committed to prosecuting the rights of workers through litigation in federal court.”

Under the terms of the two-year consent decree settling the case, Wal-Mart will pay $150,000 in relief to Moorman. In addition, Wal-Mart agreed to provide training for employees on the ADA and the ADEA. The training will include an instruction on the kind of conduct that may constitute unlawful discrimination or harassment, as well as an instruction on Wal-Mart’s procedures for handling requests for reasonable accommodations under the ADA. Wal-Mart will also report to the EEOC regarding its compliance with the consent decree and post a notice to employees about the settlement.

“The EEOC is pleased that Wal-Mart recognized the value of resolving this case without any further court action,” said EEOC Dallas District Director Janet Elizondo.

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EEOC Sues Wal-Mart for Disability Discrimination – Equal Employment Opportunity Commission

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Retailer Rescinded Accommodation, Then Fired Intellectually Disabled Employee, Federal Agency Charges

The U.S. Equal Employment Opportunity Commission (EEOC) filed a lawsuit here yesterday against Wal-Mart Stores, Inc., alleging that the giant retailer fired an intellectually disabled employee at a Rockford Walmart store after it rescinded his workplace accommodation.

“What our investigation indicated,” said John Rowe, the EEOC district director in Chicago, who managed the federal agency’s pre-suit administrative investigation, “is that Wal-Mart rescinded a long-standing practice of giving written job assignments to the employee, William Clark. That accommodation had been the key to permitting Clark to successfully perform his job during an 18 year career at Wal-Mart and to his meeting the company’s performance expectations. We determined that shortly after rescinding the accommodation, Wal-Mart began disciplining Mr. Clark for supposed performance issues, and that ultimately lead to his termination.”

The Wal-Mart where Clark was working at the time of his termination is located at 7219 Walton in Rockford, on the south side of the East State Street commercial corridor and between Interstate 90 and South Perryville Road.

The EEOC brought the suit under the Americans with Disabilities Act (ADA), which prohibits disability discrimination in employment, after first attempting to reach a pre-litigation settlement through its conciliation process. The case (EEOC v. Wal-Mart Stores, Inc., Civil Action No. 14-cv-50145) was filed in U.S. District Court for the Northern District of Illinois, Western Division on July 1, 2014. It has been assigned to U.S. District Judge Philip G. Reinhard.

John Hendrickson, regional attorney of the EEOC’s Chicago District Office, said, “The EEOC’s position in this case is that Wal-Mart just took away — with no good reason — an effective workplace accommodation of an intellectually disabled employee. That reversal fatally compromised the employee’s ability to continue doing a job he had done so well for many, many years, and ended up with him being fired.”

Hendrickson added, “It’s hard to fathom what drove Wal-Mart to this course of action, but the EEOC response will definitely not be a mystery. We intend to show that the company’s action was a particularly senseless violation of the Americans with Disabilities Act — an especially hurtful injustice — that Mr. Clark is entitled to full make whole relief and to punitive damages, and that the public interest requires strong injunctive measures to correct Wal-Mart’s practices.”

In March of this year, Wal-Mart Stores East, L.P. agreed to pay $363,419 to settle an EEOC sexual harassment and retaliation lawsuit. According to that suit, Wal-Mart violated federal law by allowing a co-worker to sexually harass an intellectually disabled employee at an Akron, Ohio Walmart store.

The EEOC’s Chicago District Office is responsible for processing charges of employment discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

 

EEOC Sues Wal-Mart Stores East for Disability Discrimination – Equal Opportunity Employment Commission

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Cockeysville Store Refused to Accommodate Applicant With End-Stage Renal Disease, Federal Agency Says

Wal-Mart Stores East, LP violated federal law when it refused to employ an individual with end-stage renal disease as a store associate because she needed a reasonable accommodation during the hiring process, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a federal lawsuit it announced today.

The EEOC charges that following a successful interview, the assistant store manager at the Walmart store in Cockeysville, Md., offered Laura Jones a job as an evening sales associate, contingent on passing a urinalysis test for illegal drugs.  When Jones said that she cannot produce urine because she has end-stage renal disease, the assistant store manager told her to ask the designated drug testing company about alternate tests.

That day, Jones went to the drug testing facility as directed and was told that while the facility did offer other drug tests, such as a mouth swab/saliva test, the employer had to order the alternate drug test.  Jones then called the assistant store manager, relayed this information and even offered to pay for an alternate test if Wal-Mart would order it.  Instead of ordering an alternative drug test as a reasonable accommodation to Jones’s disability, the EEOC charges that the assistant store manager replied that she had “called the corporate office” and that Jones could not be hired if she did not pass a urinalysis test.  Jones’s application was closed for failing to take a urinalysis within 24 hours.

Such alleged conduct violates the Americans with Disabilities Act, which requires employers to provide a reasonable accommodation, including during the application and hiring process, unless it can show it would be an undue hardship.  The ADA also prohibits employers from refusing to hire individuals because of their disability.

The EEOC filed suit (EEOC v. Wal-Mart Stores East, LP, Civil Action No. 1:14-cv-00862-JKB) in U.S. District Court for the District of Maryland, Baltimore Division, after first attempting to reach a voluntary pre-litigation settlement through its conciliation process.  The EEOC seeks injunctive relief prohibiting Wal-Mart from discriminating based on disability, equitable relief that provides equal employment opportunities for individuals with disabilities, and lost wages, compensatory and punitive damages and other affirmative relief for Jones.

EEOC Philadelphia Regional Attorney Debra M. Lawrence pointed out that this is the third lawsuit the EEOC has filed in the last year against employers who refused to provide alternative drug tests, such as a saliva test or blood test, to applicants who requested and needed that reasonable accommodation.  The other lawsuits involving this issue are EEOC v. Kmart Corporation; Sears Holdings Management Corporation; Sears Holding Corporation, filed in U.S. District Court for the District of Maryland (Civil Action No. 13-cv-02576) and EEOC v. Fort Worth Center of Rehabilitation, filed in U.S. District Court for the Northern District of Texas (Civil Action No. 3:13-cv-1736).

“While an employer may require applicants to undergo a drug test, these lawsuits should send a strong message to all employers that they simply cannot have a blanket, inflexible policy or practice of requiring only a urinalysis test, regardless of the circumstances,” said Lawrence.  “Paying attention to federal disability law and making a minimal effort to accommodate this applicant would have saved everyone a lot of trouble.”

EEOC Philadelphia District Director Spencer H. Lewis, Jr. added, “Wal-Mart evidently thought Ms. Jones was qualified for the position because it made her a job offer.  When it refused to permit her to take an alternative drug screening test and revoked the job offer, the company lost the talent and services of a qualified employee as well as violating federal law.”

The EEOC enforces federal laws prohibiting employment discrimination.  Further information about the Commission is available at its website, www.eeoc.gov.  The Philadelphia District Office of the EEOC oversees Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio.

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Are Union-Free Strikes Protected? The NLRB (National Labor Relations Board) Thinks So.

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In June 2013, we issued a client alert discussing the efforts of unions and the National Labor Relations Board (NLRB) to target the primarily union-free big box retailer and fast food industries. After describing how Target had come under scrutiny from the NLRB, the client alert detailed how the United Food & Commercial Workers Union (UFCW) and the UFCW-backed group “OUR Walmart” had been coordinating strikes and filing charges with the NLRB against Walmart. The client alert then foreshadowed: “[g]iven the Board’s recent penchant for union activism, do not be surprised if it takes a close look at Walmart’s policies and practices in the coming months.”

As predicted, the Board filed a consolidated complaint against Walmart on January 14, 2014 alleging the union-free retailer violated workers’ rights in response to coordinated strikes across 13 states. The complaint alleges dozens of Walmart supervisors and one corporate executive threatened, disciplined, surveilled, and/or terminated more than 60 workers in response to the union-free strikes.

The complaint is significant for two reasons: (1) the Board is taking the position that union-free workers have a protectable right to strike; and (2) the Board is testing its position against the nation’s largest employer. The Board views the union-free strikes as a form of protected concerted activity, and its press release states that the National Labor Relations Act (NLRA) guarantees employees the right to “act together to try to improve their wages and working conditions with or without a union.” The complaint alleges Walmart violated the NLRA by maintaining a policy that treats absences for participation in strikes as unexcused. The complaint also details alleged retaliatory disciplinary actions taken by Walmart supervisors at particular store locations, though many of the listed locations involved only a single worker being absent.

From an employer perspective, the Board’s position raises many questions. For example, how is a supervisor to know whether a non-union worker is participating in a “strike” or just absent? Can a single worker go on strike, or is there a minimum number of strikers for the activity to be “concerted”? Can strikers be permanently replaced? Are “intermittent” strikes prohibited? It is easy to see why union-free strikes create tough questions for union-free employers.

The Board’s actions against Walmart are worth watching as they come amidst a larger backdrop of worker protests and political debates over minimum wage and working conditions that are likely to remain in the spotlight for the foreseeable future. How courts ultimately grapple with the Board’s position and the resulting questions could have far-reaching effects on the labor market in 2014 and beyond.

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