Walmart, EEOC Renew Fight Over Coach as Disability Accommodation

Sept. 24, 2021, 10:00 AM

The EEOC failed to show that a deaf and visually impaired cart pusher could perform his essential work duties, and the employee also wasn’t entitled to a permanent assistant to help with those duties, Walmart will tell the Seventh Circuit on Friday.

Walmart provided Paul Reina with a job coach for the nearly 17 years he worked at its store in Beloit, Wis., and the Americans with Disabilities Act doesn’t punish an employer for providing a disabled worker with more generous job assistance than the law mandates, according to Walmart Stores Inc. and Wal-Mart Stores East LP.

Previously letting Reina have a job coach can’t be held against it, the company said in briefing in advance of Friday’s oral argument.

The retail giant seeks to overturn an October 2019 jury verdict in favor of the Equal Employment Opportunity Commission in the 2017 lawsuit. The jury awarded the EEOC $5.2 million on behalf of Reina after finding he was denied an accommodation and fired because of his disabilities. The trial judge later cut the award to $300,000 under damages caps applicable in ADA employment cases.

U.S. Court of Appeals for the Seventh Circuit precedent repeatedly confirms that a worker who needs someone else to perform an essential function of his position isn’t a “qualified individual” under the ADA, Walmart said.

That alone undercuts the jury’s verdict because only qualified workers are protected from bias or entitled to job accommodations under the ADA, the company said.

And requiring an employer to hire a full-time job coach is unreasonable as a matter of law under the ADA, a position the EEOC has taken in its own enforcement guidance, Walmart said. The district court was the first court to ever hold otherwise, and the Seventh Circuit should categorically reject such a requirement, the company said.

Fact Dependent

There’s no per se rule that a job accommodation is unreasonable simply because it entails another person permanently assisting a disabled worker, the EEOC said in its pre-argument briefing.

That’s especially true when the employer doesn’t have to pay the second person, and Walmart didn’t have to pay Reina’s coach, the EEOC said.

The “ADA expressly contemplates the use of personal assistants,” as does EEOC interpretive guidance, the agency said.

Whether such personal assistance is reasonable depends on the facts and varies from case to case, the EEOC said. The Seventh Circuit has consistently followed that approach, as have the Second, Fourth, and Eighth circuits, the agency told a three-judge panel.

The jury heard evidence supporting the conclusion that Reina could have continued to perform all of a cart pusher’s essential functions if a new Walmart manager hadn’t rescinded his use of a job coach, the agency said. The trial proof included that Reina had used a coach for 16.5 years and received uniformly positive reviews, it said.

Walmart’s contention that he couldn’t perform the key duty of foot-pushing a nested group of shopping carts through its parking lot wasn’t supported by the evidence, the EEOC said. Reina was able to steer the line of carts himself, or a coach could steer while he pushed. Either is acceptable under the ADA, the EEOC said.

And the trial judge correctly ruled that the jury could have found managing motorized shopping carts and answering customer questions weren’t truly essential duties for a cart pusher, the agency said.

Other Issues

Walmart also is appealing the trial judge’s decision not to split the trial into liability and damages phases, saying it tainted the jury.

The jury heard “emotional damages testimony,” infecting its deliberations on the company’s liability, Walmart said.

And the punitive portion of the jury’s award was improper, even if it was cut from $5 million to $100,000, the company said.

Whether the ADA required it to provide Reina with a full-time coach is an unsettled issue of law, so the company couldn’t have acted with the malice or disregard for Reina’s rights needed to support punitive damages, Walmart said.

The EEOC countered that hearing liability and damages issues in a single trial is the default rule.

The U.S. Supreme Court also didn’t create “a free-standing defense to punitive damages” whenever the theory of discrimination in a case is novel, the EEOC said.

An employer can still act with malice or reckless indifference in such situations, and there was no evidence any of the Walmart employees who decided to withdraw Reina’s use of a job coach actually believed the law on the issue was unsettled, the agency said.

The EEOC also argued on cross-appeal that the trial judge should have granted it various forms of injunctive relief.

There’s no evidence Walmart changed its ways, the EEOC said.

The trial court mistakenly focused on whether the company engaged in a pattern or practice of disability bias and whether current Walmart employees harbor discriminatory animus, the agency said.

To the contrary, the trial judge properly found the alleged misconduct was unlikely to recur, Walmart said.

The injunctive relief the EEOC sought was unnecessary, vague, and overbroad, the company said.

EEOC attorneys in Washington represent the commission. Troutman Pepper Hamilton Sanders LLP represents Walmart.

The case is EEOC v. Walmart Stores Inc., 7th Cir., No. 20-3473, oral argument 9/24/21.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com

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