Equal Emp't Opportunity Comm'n v. Wal-Mart Stores, Inc.

503 F.Supp.3d 801

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.WAL-MART STORES, INC. and Wal-Mart Stores East, L.P., Defendants.

17-cv-739-jdp

United States District Court, W.D. Wisconsin.

Signed November 25, 2020

Carrie Vance, U.S. Equal Employment Opportunity Commission, Milwaukee, WI, Gregory Gochanour, Justin Mulaire, U.S. Equal Employment Opportunity Commission, Chicago, IL, for Plaintiff.

Emery K. Harlan, Warren E. Buliox, MWH Law Group, LLP, Milwaukee, WI, Misha Tseytlin, Troutman Pepper Hamilton Sanders LLP, Chicago, IL, for Defendants.

OPINION and ORDER

JAMES D. PETERSON, District Judge

This is a case under the Americans with Disabilities Act, brought by plaintiff Equal Employment Opportunity Commission (EEOC) on behalf of charging party Paul Reina. A jury awarded $200,000 in compensatory damages and $5,000,000 in punitive damages against defendants Wal-Mart Stores, Inc. and Wal-Mart Stores East, LLP (Walmart) for failing to provide Reina with a reasonable accommodation and ending his employment because of his disability. Dkt. 197. The court decided EEOC's requests for equitable and injunctive relief, denying EEOC's request for a permanent injunction and awarding Reina $41,224.07 in back pay, $58,124.53 in front pay, $4,495.72 in prejudgment interest, and $19,097.14 for tax consequences. Dkt. 224.

Now before the court is a three-part motion by Walmart, seeking judgment as a matter of law, a new trial, and a reduction in compensatory damages. Dkt. 231. Reina is profoundly disabled, and the case presented close questions, particularly about whether Reina could perform the essential functions of his job as a cart attendant with reasonable accommodations and whether a full-time job coach was a reasonable accommodation. But the court concludes, for reasons explained more fully below, that the close questions were ultimately factual ones within the purview of the jury, and that the jury reached a verdict adequately supported by the evidence. The court will deny all parts of Walmart's motion.

BACKGROUND

A summary of background facts is sufficient at this point; more details are provided in the analysis section. Paul Reina, at the time of the trial, was 40 years old. He is deaf with serious developmental, visual, and intellectual impairments. He spent the first six years of his life in an institution, after which Rose Slaght and her husband became his foster parents. Slaght is Reina's legal guardian. Reina is nonverbal, but his family and job coaches communicate with him using different forms of sign language. His receptive skills are better than his expressive skills.

Reina worked as a cart attendant (or "cart pusher") at a Walmart store in Beloit from 1998 to 2015. Reina always worked with a job coach. His coaches included Slaght, Matt Coppernoll, Margie Polizzi, and Mike Fallon. Coppernoll was Reina's primary job coach from 2005 to 2015; the others filled in for Coppernoll.

Jeff Scheuerell became manager of the Beloit Walmart store in early June 2015. Scheuerell and Human Resources Manager Julie Repka looked into Reina's work relationship with Coppernoll.

Scheuerell met with Slaght, Coppernoll, and Reina on June 12, 2015, to discuss the role of Reina's job coach. At the meeting, Scheuerell gave Slaght an "Accommodation Medical Questionnaire" for Reina's physician to complete. Walmart did not place Reina on the schedule after June 12, 2015, but it provided him with two weeks of paid leave. Reina never returned to work at Walmart.

ANALYSIS

A. Motion for judgment as a matter of law

Walmart asks for judgment as a matter of law under Rule 50. The standard for a Rule 50 motion is essentially the same as for a motion for summary judgment: whether a reasonable jury would have a legally sufficient evidentiary basis to find in favor of the nonmoving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Lawson v. Sun Microsystems, Inc. , 791 F.3d 754, 761 (7th Cir. 2015). "Only if no rational jury could have found for the nonmovant may we disturb the jury's verdict." Ruiz-Cortez v. City of Chicago , 931 F.3d 592, 601 (7th Cir. 2019). In applying this standard, the court does not weigh the evidence and it draws all reasonable inferences in favor of the nonmoving party. Id.

The EEOC brought both failure-to-accommodate and termination claims on behalf of Paul Reina under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(b)(5)(A)-(B). Walmart seeks judgment on both claims on the following grounds: (1) the evidence failed to prove that Reina is a qualified individual who could perform the essential functions of his cart attendant position without his job coach doing some of the work; (2) providing Reina a full-time job coach would impose an undue hardship on Walmart; (3) Walmart did not act with the discriminatory intent necessary to support EEOC's claims for discriminatory termination and punitive damages; and (4) the EEOC's "novel" theory of liability does not entitle Reina to punitive damages. Walmart arguments are addressed in the sections below.

1. Qualified individual, essential functions, and reasonable accommodation

To prevail on both its failure-to-accommodate and discrimination claims, the EEOC was required to adduce evidence that would allow a reasonable jury to conclude that Reina was a "qualified individual," who with or without "reasonable accommodation," could perform the "essential functions" of his cart attendant position. See 42 U.S.C. §§ 12111(8) and 12112 ; Felix v. Wisconsin Dept. of Transportation , 828 F.3d 560, 568 (7th Cir. 2016) ; Hooper v. Proctor Health Care Inc. , 804 F.3d 846, 852-53 (7th Cir. 2015) ; Bunn v. Khoury Enters., Inc. , 753 F.3d 676, 683 (7th Cir. 2014).

Walmart does not object to the court's jury instructions on required elements. The court instructed the jury that essential functions are a job's "fundamental duties" and that not all job functions are "essential." Dkt. 196 at 6. The jury was told that they may consider a number of factors in deciding whether a function was essential: the reasons the job exists; the number of employees Walmart has to do that kind of work; the degree of specialization the job requires; Walmart's judgment about what is required; the consequences of not requiring an employee to satisfy that function; and the amount of job time spent on a function, though some functions may be essential even if they do not take a great deal of time. Id.

The court instructed the jury that a reasonable accommodation "may include changing such things as ordinary work rules, facilities, conditions, or schedules, or having someone else perform the nonessential functions of the employee's job. But it is not a reasonable accommodation to require the employer to eliminate or change the essential functions of the job, to have someone else perform the essential functions of the job, or to lower productivity standards. A job coach would not be a reasonable accommodation if the coach has to perform any of the essential functions of the job for the employee." Id. at 7. The jury was told that it may "also consider Walmart's actual work practices with Reina and other cart attendants in deciding which job functions are essential and whether an accommodation is reasonable. But Walmart is not required to provide any accommodation that is not a reasonable accommodation, even if Walmart may have done so in the past." Id.

Walmart contends that Reina was unable to perform the essential cart attendant functions of retrieving, organizing, and managing carts and customer service because he was unable to drive motorized carts (electric wheelchairs or scooters with a basket) from the parking lot to the store, steer a line of traditional shopping carts by himself, or respond to customer questions. The EEOC counters that these tasks were nonessential or ones that Reina could perform with reasonable accommodation.

Before addressing the parties core arguments, I begin with a preliminary matter.

In a footnote to its argument that Reina was not a qualified individual, Dkt. 232 at 7 n.3, Walmart reasserts its summary judgment argument that a permanent job coach is never a reasonable accommodation as a matter of law, relying on some district court cases. See Kleiber v. Honda Am. Mfg. , 420 F. Supp. 2d 809, 822-23 (S.D. Ohio 2006) ; EEOC v. Dollar Gen. Corp. , 252 F. Supp. 2d 277, 290 and 293 (M.D.N.C. 2003) ; EEOC v. Hertz Corp. , No. 96-72421, 1998 WL 5694, at *5 (E.D. Mich. Jan. 6, 1998) ; Davis v. Wal-Mart Stores, Inc. , No. CV-09-1488, 2011 WL 2729238, at *19 (D. Or. May 3, 2011). But Walmart has forfeited the argument at this point for two reasons. First, it failed to raise this issue in its Rule 50(a) motion. Passananti v. Cook County , 689 F. 3d 655, 660 (7th Cir. 2012) (A Rule 50(b) motion "is only a renewal of the preverdict [50(a)] motion, [and] it can be granted only on grounds advanced in the preverdict motion."). Although Walmart argued that there was no basis for the EEOC's punitive damages claim because the notion that a permanent job coach is a reasonable accommodation is a "novel theory" and not settled law, it did not argue that such an accommodation was unreasonable per se. Dkt. 203 at 112, 114-15; Dkt. 208 at 66. Second, Walmart relegated its argument to a footnote and failed to develop it properly in the main body of its brief. Estate of Moreland v. Dieter , 395 F.3d 747, 759 (7th Cir. 2005) ("Perfunctory or undeveloped arguments are waived."); Hammer v. Residential Credit Sols., Inc. , No. 13 C 6397, 2015 WL 7776807, at *4 (N.D. Ill. Dec. 3, 2015) (defendant "waived any timeliness argument by making only a token effort to address it in its Rule 50(b) brief, relegating the argument to a two-sentence footnote").

Even if not forfeited, the argument fails on merits for same reasons explained in the court's orders denying Walmart's motion for summary judgment and its motion for reconsideration. Dkt. 65 at 16-20; Dkt. 76 at 2-3.

I...