Ayers v. Wal-Mart Assocs.

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BENJAMIN DAVID AYERS, Plaintiff, v. WAL-MART ASSOCIATES, INC., Defendant.

Civil Action No. 7:23-cv-00419

United States District Court, W.D. Virginia, Roanoke Division

September 13, 2024

MEMORANDUM OPINION

HON THOMAS T. CULLEN, UNITED STATES DISTRICT JUDGE

Plaintiff Benjamin Ayers (“Ayers”) brought this action against his former employer, Defendant Wal-Mart Associates Inc. (“Walmart”), alleging nine causes of action related to his employment and eventual termination: (1) retaliation under the Virginia Whistleblower Protection Law (“VWPL”); (2) disability discrimination under the Americans with Disabilities Act (“ADA”); (3) retaliation under the ADA; (4) failure to accommodate under the ADA; (5) interference under the ADA; (6) discrimination on the basis of sex or sexual orientation under Title VII of the Civil Rights Act (“Title VII”); (7) retaliation under Title VII; (8) discrimination under the Virginia Human Rights Act (“VHRA”); and (9) retaliation under the VHRA. Because of the overlapping standards for many of these causes of action, the court analyzes Ayers's claims in the following groups: (A) VWPL claim, (B) discrimination claims, (C) retaliation claims, (D) failure-to-accommodate claim, and (E) interference claim.

This matter is before the court on Walmart's motion for summary judgment. (ECF No. 25.) The motion has been fully briefed by the parties and the court heard argument on the motion on August 28, 2024. For the reasons discussed below the court will deny Walmart's motion for summary judgment.

I. Statement of Facts

The following facts are either undisputed or presented in the light most favorable to Ayers, the nonmoving party. See Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 2013).

In late August 2020, Walmart hired Benjamin Ayers as a Cashier/Front-End Associate at the Walmart Supercenter in Galax, Virginia. (Dep. of Benjamin Ayers, Jan. 29, 2024 31:19- 32:3 [ECF No. 31-1].) At the time he was hired, Ayers, who identifies as gay, had been in a committed same-sex relationship for some time. (See id. at 14:14-17.) Ayers also struggled with some physical and mental disabilities. (See id. at 23-25; ECF No. 31-2; ECF No. 31-3.)

Before he began working at Walmart, Ayers worked for Vaughan-Bassett, a woodfurniture company, and sustained a serious arm injury while repairing a conveyor belt at their factory. (Ayers Dep. at 17:11-18:1, 19:11-20:14.) Ayers sought medical treatment following this event and was diagnosed with a crush injury of the upper arm. (See id. at 20:15-21:4; ECF No. 31-26.) For treatment, Ayers attended physical therapy for one week and regained a significant degree of mobility in his arm, though some side effects of the injury remain, including that, according to Ayers, it hurts more when the temperature changes or it rains. (Ayers Dep. at 21:8-22:2, 54:8-12.)

Ayers also has post-traumatic stress disorder (“PTSD”) and Asperger's syndrome, a form of autism. Ayers's PTSD apparently stems from the same factory accident, which he contends also caused insomnia and anxiety. (See Psychotherapy Progress Note, at 2 [ECF No. 31-24].)

During his Walmart orientation, Ayers received and read Walmart's policy on disability accommodations, asked a human resources (“HR”) representative whether he needed to complete any paperwork regarding accommodations for his disabilities, and gave HR a note from his therapist stating that he had Asperger's.^[1] (Ayers Dep. at 58:15-59:18.) The HR representative told Ayers that he “didn't have to worry about” completing any paperwork and that she would note his Asperger's in his file. (Id. at 59:6-18.) Ayers also mentioned his disabilities to Cynthia Poe, his new supervisor, and spoke about them with several other coworkers and Team Leads. (See, e.g., id. at 47:4-48:19, 77:13-18; Dep. of Cynthia Poe 89:19-20, Mar. 12, 2023 [ECF No. 31-13].) According to Ayers, Walmart began accommodating his disabilities (e.g., not assigning him to Register 3 after an incident involving the conveyor belt and his PTSD) without formal, written requests or any indication there would be an issue. (See Ayers Dep. at 48:20-49:11, 96:6-97:2.)

Ayers did not have an unblemished employment record. Walmart disciplined him for the first time on October 19, 2021, when Poe issued Ayers a “yellow coaching” related to two incidents. (See Decl. of Cynthia Poe Ex. 1 (“Poe Decl.”) [ECF No. 26-3].) In one incident, a newly hired associate quit at lunch because Ayers made a rude comment about her inexperience. (See Ayers Dep. at 67:10-20; Poe Dep. at 121:21-122:1.) In the other incident, Ayers asked Team Lead Sharita Sizemore whether she was married or had a wife; Ayers apparently heard a rumor from another co-worker, Stacy Costa, that Sizemore was gay.

(See Ayers Dep. at 65:5-66:8; Dep. of Sharita Sizemore 18:1-13, Mar. 14, 2024 [ECF No. 31-8].) After the encounter, Sizemore spoke with Poe and told her that Ayers's questions and comments had “bother[ed]” her, but that she “didn't want anything done about it.” (Sizemore Dep. at 16:7-15.) Poe then contacted the Walmart Ethics Helpline to report the incident, noting that store manager Todd Taylor “advised her to give them a yellow coaching for harassment,” and that Ayers stated he “didn't mean any harm” and “will be more mindful” in the future. (Poe Ethics Report, at 2 [ECF No. 31-19]; Poe Decl. at 8.) While Ayers was disciplined for his actions, Costa was not disciplined for spreading the rumor. (Poe Dep. at 56:16-21.)

The next day, Ayers spoke to Assistant Store Manager Cheryl Craft about Poe. (Ayers Dep. at 75:12-18.) Poe was also present during Ayers's meeting with Craft. (Dep. of Cheryl Craft 15:4-10, Mar. 12, 2023 [ECF No. 31-5].) During this meeting, Ayers complained about how Poe treated him, saying that she “disregarded [his] disabilities.” (Ayers Dep. at 77:1-5.) He also gave Poe and Craft printed articles from the internet about Asperger's syndrome, and the three discussed the topic. (See Ayers Dep. at 78:10-21; Craft Dep. at 15:16-17; Poe Dep. at 17:5-21.) Apart from having an apparently cordial conversation, Poe did not request medical documentation from Ayers at that time or seek subsequent guidance from any other department at Walmart regarding his apparent disability. (Poe Dep. at 18:2-19:12, 87:9-88:12.)

In that same meeting or soon thereafter, Ayers spoke with Craft and Poe about transferring to another position within Walmart, like online grocery. (Craft Dep. at 18:2-6; Poe Dep. at 40:19-41:6; Ayers Dep. at 149-150.) Ayers said that he wanted a transfer to reduce customer interaction and the need to deal with many social cues.

(Ayers Dep. At 149:17, 150:20-151:2; Poe Dep. at 40-41.) Poe requested that Ayers continue to work as a cashier through the holiday season, but alerted the online-grocery manager of Ayers's interest in that department. (Ayers Dep. at 150:1-4; Poe Dep. at 41:7-9; see Dep. of Todd Taylor 17:4-24, Mar. 13, 2023 [ECF No. 31-11].) Walmart's policy required that Ayers's former position be filled before a transfer to a different department could occur. (See Craft Dep. at 19:10-16.) But Poe did not take any steps to hire a replacement cashier, even though the store regularly had other positions become available. (Poe Dep. at 43; see Craft Dep. at 18:5-14.) After some time, the online-grocery position was filled, and Ayers remained as a cashier. (Ayers Dep. at 150:5- 7.)

Six months later, in April 2022, Poe disciplined Ayers for repeatedly asking a fellow employee, Brandi Anders, if her minor brother, fellow employee Brian Anders, was gay. (See Ayers Dep. at 70:11-73:4; Poe Decl. at 5.) While Ayers maintains that his questions were innocent inquiries, Brandi and Brian Anders felt uncomfortable with them and reported Ayers's conduct to Poe. (Dep. of Brian Anders 13:11-14:3, 23:10-22, Mar. 14, 2024 [ECF No. 31-12].) As a result of Brian Anders's complaint, Poe again reported Ayers's conduct to Walmart Ethics, which instructed her to perform a more severe “red level” coaching. (See Poe Decl. at 5.)

During the coaching meeting, Poe admonished Ayers “not to ask or speak of someone's sexual orientation” and to focus on his job. (Id. at 7.) Ayers again agreed to be more “mindful” in the future, but also confronted Poe about whether she would write up numerous other employees, including herself, for asking Ayers questions about his own life or sexual orientation. (Id. at 8; Ayers Dep. at 73:9-14.) Although she indicated she would, Poe did not pursue any disciplinary action against others; in her view, Ayers's situation was different because he made his sexuality publicly known throughout the store. (Poe Dep. at 94.)

A few months later, in late June or early July 2022, Ayers and Poe had yet another tense encounter. Three days after witnessing Ayers interact with children in the store, Poe warned him that he should remain focused on his job and not interact with any children because parents “may not want you holding or touching their kids.” (Ayers Dep. at 80:10-82:4.) According to Ayers, Poe also commented that his behavior could be viewed as “sexual harassment,” to which Ayers took offense. (See id.) Ayers claims that no other employees were reprimanded for interacting with children. (see Ayers Dep. at 81:14-20; Pl.'s Br. Opp. Ex. 16 (“Ethics Email”) [ECF No. 31-16].) Poe stated that, if any other employees were reprimanded, it was for the same reason Ayers was reprimanded: to keep employees focused on their jobs. (Poe Dep. at 80:12-21.)

Following this, Ayers felt compelled to file a written complaint against Poe to Walmart Global Ethics. On July 13 2024,^[2] Ayers sent an email to Walmart Global Ethics after attempting to submit a similar complaint to the online ethics portal. (see Ethics Email; Pl.'s Br. Opp....