Quick v. Wal-Mart Stores, Inc.

PAMELA S QUICK, Plaintiff, v. WAL-MART STORES, INC.; dba WALMART, Defendants.

CIVIL NO. 2:16-CV-109

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

ENTERED: June 5, 2017

June 2, 2017

MEMORANDUM AND ORDER

BE IT REMEMBERED that on June 2, 2017 the Court considered Defendant Wal-mart Stores, Inc.'s ("Walmart") Motion for Summary Judgment (D.E. 20) and all responses to the motion. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Walmart's Motion for Summary Judgment. The Court GRANTS Walmart's Motion for Summary Judgment on all FMLA claims and claims of sex discrimination. The Court DENIES Walmart's Motion for Summary Judgment on Quick's age discrimination claim.

The Court declines to rule on Walmart's Motion for Summary Judgment on Quick's disability discrimination claims, and ORDERS supplemental briefing with relevant summary judgment evidence consistent with the opinion below.

I. Statement of Undisputed Facts

Pamela S. Quick ("Quick") began her employment with a Walmart store in Portland, Texas on November 13, 2013 as a meat market associate. Quick Dep., D.E. 20 Ex. A at 23:19-23. Quick was sixty-four years-old at the time. Id. at 111:17-20. Quick alleges that on March 14, 2014 she slipped on some ice in the freezer. Id. at 33:8-24. Dr. Dustin O'Hern ("O'Hern") released Quick to return to work on March 15, 2014 with the restriction that she not lift more than ten pounds. Id. at 38:5-13, 40:10-41:16; Dkt. No. 20 Ex. A(3).¹ On March 25, 2014, Quick then saw Walmart's plan doctor, Dr. Mobley ("Mobley"). Quick Dep., D.E. 20 Ex. A at 39:10-40:9, ex. 2. Mobley placed her on light duty with a twenty-pound lifting restriction. Id. at 41:17-25. When she returned to work, Quick was given a Temporary Alternative Duty Assignment. Quick Dep., D.E. 20 at 43:1-20; Dkt. No. 20 Ex. 4 (titled "Temporary Alternative Duty Assignment" and stating that "Dr. Mobley has released you to return to work with the following restrictions: May not lift/carry objects more than 20 lbs."). The Temporary Alternative Duty Assignment provided, "We have a temporary position available for you that will accommodate the restrictions under which the physician has authorized you to return to work. The position being offered to you will include (but is not limited to) the following duties: Normal job duties in the Meat Market but with the restrictions of not lifting or carrying more than 20 lbs." Dkt. No. 20 Ex A(4). Quick continued to work with these restrictions until June 18, 2014, when she was released by Dr. Donna McMann ("McMann") to return to work to her full duties through a Physician's Status Report with Walmart letterhead. See Dkt. No. 20 Ex A(5) (stating that Quick "[m]ay return to work with no restrictions on date 6/18/14"); see also Quick Dep., D.E. 20 at 52:24-53:8 (stating that McMann is an associate of Mobley).

At various points in 2014, Quick asked for transfers that would have allowed her to be placed in lighter-duty stations. See Quick Dep., Dkt. No. 21 Ex. A at 145:22-25 (testifying that after her injury, Quick requested a transfer to another department ten times, though not specifying in what timeframe). Walmart does not appear to dispute this testimony of Quick that she asked for transfers to other departments, although personnel coordinator Karen Neimeier ("Neimeier") states in her declaration that after she instructed Quick "that she should abide by her[twenty-pound] restrictions," "[Quick] never complained [to her] that she was asked to work outside of her restrictions." Neimeier Dec., Dkt. No. 20 Ex. B at ¶ 4.

Antonio Lopez ("Lopez"), a meat market associate, testified that based on his experience, the size of a box located in the meat market department "weigh[ed] about fifty pounds, almost to a range of seventy-five pounds of meat." Lopez Dep., Dkt. No. 21 Ex. B at 12:3-12. He also testified that at least ninety percent of all the boxes that an associate working in the meat department would be lifting on a given day exceeded forty pounds. Id. at 12:13-17. Lopez also testified through his deposition that he expressed a complaint to the area manager, Mary Moreno ("Moreno"), and the store manager, Luis Leija ("Leija"), on behalf of Quick. Id. at 12:18-13:22 ("The reason why is because I would see her suffer. Sometimes I would see her cry. I would see her in pain and I would see basically a meat market manager that wasn't taking any precaution or any . . . type of care with Pam [Quick] . . . .").

Lopez testified that he tried to get Quick transferred to his department, the produce department, "because [it] didn't have any type of certain limitations on the weight as -- as what meat market did." Id. at 14:22-25. Lopez did not testify as to the timeframe of these efforts, though stated that he had these conversations with Leija "numerous times" prior to his departure from Walmart in September 2014 and that some of the conversations took place between March 25, 2014 and June 18, 2014. Id. at 17:13-23. He also testified that between March 25, 2014 and June 18, 2014, he did not see or observe Quick being assigned to light duty, and that there was light duty work available at the Walmart store. Id. at 16:2-17. He also testified that during the time period of March 25, 2014 to June 18, 2014, he saw "a couple of associates that were hurt from different departments working light duty, such as shredding paper, getting receipts ready for site to store, helping out." Id. at 16:19-17:2.

Lopez had hiring responsibilities at Walmart, and testified that Leija "pulled me over to the side and told me that I would basically have to start hiring younger people . . . because they're a lot faster, quicker [and] don't have to deal with anytype of missed days or doctor's - doctor appointments or whatnot." Id. at 19:18-24; 20:11-14. When asked in deposition if he received any explanation by Moreno or Leija about why Quick was not given light duty, Lopez testified that "they were telling me that we didn't have enough people there in the store" and that employees "hired in [the] meat market are just going to have to deal with it." Id. at 20:19-22.

On December 4, 2014, Quick complained to Neimeier that her back was hurting. Neimeier Dec., Dkt. No. 20 Ex. B, ¶ 6. Although Quick denies that she said that the back pain was caused by something other than her on-the-job injury, see Quick Affidavit, Dkt. No. 21 Ex. C, ¶ 12, Neimeier declares that because her understanding from Quick was that this pain was due to a pre-existing condition, she notified Quick of her rights under the FMLA. See Neimeier Dec., D.E. 20 Ex. B, ¶ 6. Quick requested FMLA leave for December 4 to 7, 2014. Dkt. No. 20 Ex. A(10).

Walmart outsources its FMLA certification and processing to its third party contractor, Sedgwick Claims Management Systems, Inc. ("Sedgwick."). Sedgwick began the FMLA process after Quick notified Neimeier that her back was hurting. Dkt. No. 20 Ex. A(9). The Sedgwick letter to Quick dated December 5, 2014 stated:

On December 05, 2014, Sedgwick became aware of your need to take leave beginning on December 4, 2014 with an estimated end date of December 7, 2014 due [to] a serious health condition that makes you unable to perform the essential functions of your job.

We are pleased to inform you that you conditionally meet the FMLA's basic eligibility requirements of working 12 months and 1250 hours in the 12 months prior to the start date of your leave. On the first date of absence, a final eligibility review will be made to determine if you continue to meet the eligibility requirements.

Sedgwick Letter of Dec. 5, 2014, Dkt. No. 20, Ex. A(9) at 1. The letter further informs Quick to, inter alia, return the certification form no later than December 25, 2014; return the completed Medical Authorization for Release of Information form as soon as possible if there is need for Sedgwick to contact her health care provider; and to notify Sedgwick if there is a change in her leave end date. Id.

The letter also states:

In order for us to determine whether your absence qualifies for leave, you must provide us a complete and sufficient certification to support your leave request no later than December 25, 2014. A certification of health care provider form is enclosed. If required information is not provided by the date indicated above, your leave may be denied. Please contact your leave specialist with any questions or concerns.

Id. at 1-2.

The evidence shows another letter addressed to Quick dated December 26, 2014 in which Sedgwick states:

On December 05, 2014, Sedgwick became aware of your need to take leave beginning on December 04, 2014 with an estimated end date of December 07, 2014 due [to] a serious health condition that makes you unable to perform the essential functions of your job.

There are two items that need to occur before a final leave decision can be made:

• You must meet the eligibility requirements (hours and length of service)

• Provide medical documentation to support your leave request

Sedgwick Letter of Dec. 26, 2014, Dkt. No. 20 Ex. A(10) at 1. The letter indicates that among the required actions is to "[r]eturn the certification form no later than January 15, 2015;" "[r]eturn the completed Medical Authorization for Release of Information form;" and "[n]otify Sedgwick if there is a change in your leave end date." Id.

Quick testified through her affidavit, "Karen [Neimeier] and Kayla, Area Manager, advised me that I would not be allowed to return to the meat market until I was 100% released for work." Quick Affidavit, Dkt. No. 21 Ex. C, ¶ 8. In her briefing, Quick argues that a new limitation was imposed by Mobley on December 30, 2014, and in support she attaches physician notes that indicate that Quick "may return to work" and "no lifting [greater than] 10 [pounds] 34/wk." Dkt. No. 21 at 6; Dkt. No. 21 Ex. J.

Quick remained on leave until January 29, 2015. Neimeier Dec., Dkt. No. 20 Ex. B, ¶ 8. An email...