Feringa v. Andrews

IRENE FERINGA, Plaintiff, v. LOUANN ANDREWS; SHARAIN MURPHY; AMBER HIBBARD;STEPHANIE McEWAN; WALMART INC.; WAL-MART STORES EAST, INC.;WAL-MART STORES EAST, LP; WAL-MART ASSOCIATES, INC.;and JOHN DOES 1-10, Defendants.

3:19-CV-656

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

May 20, 2021

APPEARANCES:

OF COUNSEL:

SHEGERIAN & ASSOCIATES

Attorneys for Plaintiff

90 Broad Street Suite 804

New York, New York 10004

JON CHOATE, ESQ.

LITTLER, MENDELSON LAW FIRM

FAIRPORT, NEW YORK OFFICE

Attorneys for Defendants

375 Woodcliff Drive, 2nd Floor

Fairport, New York 14450

HINNA M. UPAL, ESQ.

PAMELA S.C. REYNOLDS, ESQ.

DAVID N. HURD United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

On August 21, 2018, plaintiff Irene Feringa ("plaintiff" or "Feringa") lost her job at a Walmart store in Johnson City, New York (the "store"). Who exactly employed plaintiff is still a contentious topic, but at the least the parties agree that it was one of three of the entity defendants in this case's caption: Walmart Inc.; Wal-Mart Stores East, LP; or Wal-Mart Associates, Inc. (together "Walmart" or "defendant").¹

On June 3, 2019, Feringa filed an eleven-count complaint in this district: (I) disability discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a); (II) Family and Medical Leave Act ("FMLA") interference in violation of 29 U.S.C. § 2614(a)(1)(A) and 2615(a)(1); (III) age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a); (IV) retaliation in violation of the ADA, 42 U.S.C. § 12203(a); (V) disability discrimination in violation of the New York State Human Rights Law ("NYSHRL"), N.Y. EXEC. LAW § 296.1(a); (VI) age discrimination in violation of the same provision of the NYSHRL; (VII) a hostile work environment claim under the NYSHRL for discrimination based on disability, age, and leave; (VIII) Retaliation under the NYSHRL,N.Y. EXEC. LAW § 296.1(e) and 296.7; (IX) aiding and abetting forbidden acts under the NYSHRL in violation of N.Y. EXEC. LAW § 296.6; (X) negligent hiring, supervision, and retention of employees under the New York common law; and (XI) intentional infliction of emotional distress under the New York common law.

The complaint also listed a handful of individual defendants who supervised Feringa during her time at Walmart: LouAnn Andrews ("Andrews"); Sharain Murphy; Amber Hibbard; and Stephanie McEwan ("McEwan"), not to mention several John Does. On December 30, 2020, the individual defendants, as well as Wal-Mart Stores, East, Inc., and Walmart, moved for summary judgment under Federal Rule of Civil Procedure ("Rule") 56 against the entirety of plaintiff's complaint. Those motions, having been fully briefed, will now be decided on the submissions and without oral argument.

II. BACKGROUND

On August 6, 2010, Feringa was hired to work at the Walmart store in Johnson City, New York.² Dkt. 72-4, Defendants' Statement of Material Facts ("DSMF") ¶ 1. According to Walmart, Walmart Stores East, LP was plaintiff's employer at all times relevant to this case. Id. ¶ 2. As plaintiffpoints out, though, her wage notices identified her employer as Wal-Mart Stores, Inc., and her tax documents listed her employer as Wal-Mart Associates, Inc. Dkts. 77-18, p. 1;³ 77-19, p. 2.

Feringa spent her time at Walmart as a Sales Associate in the deli department. DMSF ¶ 3. That role involved customer service, stocking shelves, and generally keeping the deli section of the store fresh, clean, and supplied. Id. ¶ 5.

Throughout Feringa's entire Walmart career, she lived with chronic obstructive pulmonary disease ("COPD"). DSMF ¶ 15. As its name suggests, COPD affects a person's lungs and thus can make breathing difficult. Id. Although the specifics are scant, plaintiff told at least some Walmart employees that she suffered from COPD within her first few days of work. Id. ¶ 17.

Feringa remained employed at Walmart without any glaring issues relevant to this case until December of 2016. In that month, plaintiff requested a leave of absence under the FMLA. DSMF ¶ 18. Apparently, plaintiff's doctor had told her that something was wrong with her lungs, and she would need to be excused from work for treatment. Id. ¶¶ 18, 20.

Accordingly, Feringa requested a leave of absence from Sedgwick, an outside company to which Walmart outsourced employee accommodation requests. DSMF ¶¶ 18, 23. Sedgwick granted plaintiff's accommodation request, and granted her a leave of absence from December 1 through December 7. Id. ¶¶ 19, 23; Dkt. 72-2, p. 124. Fortunately, plaintiff recovered quickly, and on December 8, 2016 she returned to work with no restrictions. DSMF ¶ 20.

Yet that would not be the last time Feringa would request accommodations for her COPD. In May of 2018, plaintiff requested that Walmart minimize the amount of bending she would be asked to do during the workday and restrict the amount of weight she could be required to lift to nine pounds or fewer beginning on May 3, 2018 and ending on May 31, 2018. DSMF ¶ 22. Sedgwick determined that plaintiff's job absolutely required her to do everything that she was asking not to do, and denied her accommodation request as a result. Id.¶ 23. As an apparently unrequested alternative, Sedgwick approved plaintiff to take a leave of absence from May 9, 2018 until June 1, 2018. Id. ¶ 24.

Feringa once again returned from her leave of absence with no restrictions. DSMF ¶ 25. However, at some point plaintiff spoke to the store's Personnel Coordinator, defendant Andrews, about her breathing problems. Id. ¶ 26. Rather than parking in the designated employee lotsome distance away, plaintiff wanted to be able to park in the much closer customer lot. Id. ¶¶ 26-27.

The Store Manager, the store's ranking employee, approved Feringa's request to park closer to the building without asking for medical documentation. See DSMF ¶ 27. Even so, apparently another store employee left a note on plaintiff's windshield telling her she could not park in the customer lot. Id. ¶ 28. In response, plaintiff sought out and provided paperwork signed by her doctor that restored her permission to use the closer lot. Id.

Also in 2018, Feringa asked the assistant manager to whom she reported, defendant McEwan, for an accommodation that would relieve her from having to work the fryers that Walmart had set up in the deli section. DSMF ¶ 29. According to McEwan, plaintiff said that she had asthma, but she cannot recall whether plaintiff elaborated how the fryers would make her asthma worse. Dkt. 72-2, pp. 185-86. McEwan apparently told plaintiff to get an accommodation form from Andrews, fill it out, and send it to the home office. Id. at 186. Plaintiff never did. DSMF ¶ 30. Nevertheless, another of plaintiff's managers allowed her to work away from the fryers if they became so smoky that they would interfere with her breathing. Id. ¶ 31.

In the background of Feringa's breathing-induced hardships—and according to her in part because of them—plaintiff had some difficultiesgetting to and staying at work during 2018. Obviously, frequent absence from work is seldom a healthy sign for an employment relationship, but in this particular case Walmart's attendance policies lent additional gravitas to her lapses in attendance.

More specifically, during the late stages of plaintiff's employment, Walmart used an "occurrence" system to track employee punctuality. Dkt. 77-8, p. 2. Think of "occurrences" as points, with various attendance problems counting for a different number of occurrence points. Id. For example, arriving at work late or leaving early counts for a half point, while calling in sick for an unauthorized reason counts for a full point. Id. When an employee accumulates nine or more occurrence points within a rolling six-month period, the employee is subject to termination. Id.

On February 14, 2018, plaintiff left work more than two hours early. Dkt. 77-10, p. 1 (noting plaintiff's attendance on February 14 as "absent early out"); see Dkt. 77-8, p. 4 (noting that absent early out means employee clocked out more than two hours before end of shift). According to Walmart's occurrence system, leaving this early generally counts for one full occurrence point. Dkt. 77-8, p. 4. On February 21, 2018, plaintiff left work early again, although within two hours of the end of her shift. Dkt. 77-10, p. 1. Becauseplaintiff left within two hours of her shift's end, it should only have qualified for a half-point occurrence.⁴ Dkt. 77-8, p. 4.

Feringa was absent from her shift altogether on February 24 and 25, and she did not call in before her shift to let anyone at the store know. Dkt. 77-10, p. 1. Typically, an absence without so much as a call in counts for four total occurrence points against the employee: one point for being absent, and three for failing to report it ahead of time. Dkt. 77-8, p. 3. For these two days alone, plaintiff would have received eight occurrence points, bringing her total for February to 9.5 occurrence points when her two early departures are included.

Concerned about losing her job, Feringa went to McEwan to ask about removing the occurrence points from February 24 and 25. DSMF ¶ 55. According to plaintiff, she had failed to show up to work and call in because her husband was in the hospital over those two days. Id. McEwan removed the occurrence penalties for plaintiff failing to call in, but left her one point occurrences for her absences in place. See DSMF ¶ 57(noting that McEwan removed plaintiff's two three-point occurrences); Dkt. 77-1, Plaintiff's Statement of Material Facts ("PSMF"), ¶ 55 (pointing out that plaintiff stillreceived two one-point occurrences for this timeframe); Dkt. 77-8, p. 3 (establishing that failing to call or appear for work counts as two absence events totaling four points).

Thus, Feringa was again safely below nine occurrence points. However, that tally took precious little time to grow. Plaintiff...