CAMERON McGOWAN CURRIE, District Judge.
Through this action, Plaintiff, Elizabeth Bucklew ("Bucklew"), seeks recovery from her former employer, Defendant Wal-Mart Stores East, L.P. ("Walmart"), for alleged violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. ("ADA"). Dkt. No. 9 (First Amended Complaint). Bucklew alleges two ADA causes of action. First, she alleges Walmart failed to provide reasonable accommodations that would have allowed her to work despite her disability. Id. ¶¶ 11-17. Second, she alleges Walmart constructively discharged her by "deliberately [making] her working conditions so intolerable as to induce Plaintiff to quit her employment." Id. ¶¶ 18-21. Under both causes of action, Bucklew seeks back pay, reinstatement or front pay, other compensatory and punitive damages.
The matter is before the court on Defendant's motion for summary judgment. Dkt. No. 25. For the reasons set out below, the motion is granted in full.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), DSC, this matter was referred to United States Magistrate Judge Shiva V. Hodges for pre-trial proceedings and a Report and Recommendation ("Report"). Magistrate Judge Hodges issued a Report on May 16, 2012, recommending that Walmart's motion be granted and summary judgment be entered on both of Bucklew's ADA claims. Dkt. No. 43. An attachment to the Report advised the parties of the procedures and requirements for filing objections and the serious consequences of failing to do so. Bucklew filed a timely objection.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the court. See Mathews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge to which a specific objection is made. The court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b). The court reviews the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that "in the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.") (citation omitted).
Bucklew challenges the Report in full, arguing that there are genuine issues of material fact which preclude entry of summary judgment on either of her claims. For the reasons set forth below, the court rejects Bucklew's objections and grants Defendant's motion in full, adopting the reasoning of the Report as modified and supplemented herein. For purposes of this discussion, the court applies the familiar summary judgment standard, which is correctly set forth in the Report. Dkt. No. 43 at 10.
Bucklew's amended complaint identifies two forms of accommodation she sought and alleges Walmart failed to provide: allowing her to sit on a stool at her cash register; and allowing her to use a motorized shopping cart ("Mart Cart") "when required to walk to other locations in the store." Dkt. No. 9 ¶¶ 7. In responding to Walmart's motion for summary judgment, Bucklew sought to expand the bases for her failure to accommodate claim. During oral argument, the Magistrate Judge pressed Bucklew's counsel regarding the expanded allegations. In response, Bucklew's counsel stipulated that Bucklew was relying solely on Walmart's failure to allow use of a Mart Cart in support of her claim for failure to accommodate her disability.
The Magistrate Judge allowed post-hearing supplemental briefing on specific points. Through her supplemental brief, Bucklew attempted to withdraw her stipulation and expand the bases for her failure to accommodate claim. Dkt. No. 41 at 1. The Report recommends that the court bind Bucklew to her stipulation. Dkt. No. 43 at 14-15. The court adopts this recommendation as it would be unfair to allow Bucklew to expand the allegations of her amended complaint after the close of discovery or to recapture claims affirmatively withdrawn at oral argument.
Bucklew used a Mart Cart from time-to-time in the performance of her job (to transport herself and merchandise) prior to being told not to do so in February 2009.
Walmart denied Bucklew's request to use a Mart Cart, noting that these carts were provided for the convenience of customers, but recommended as an alternative that Bucklew provide and use her own "assistive device." E.g., Dkt. No. 25-6 at 68 (form reflecting decision); Dkt. No. 25-6 at 7 ¶ 10 (Martin aff. regarding his communication with Bucklew regarding the denial); Dkt. No. 30-1 at 42 (Bucklew dep. at 155-56) (conceding that Martin advised her she could bring in her own mobility assistive device).
Martin averred that Bucklew did not seek to discuss the matter with him further after this discussion, did not appeal his decision despite being told she could do so, and did not provide any further medical documentation. Dkt. No. 25-6 at 9-10 ¶ 11, 14. Bucklew has presented no evidence to the contrary. See generally Dkt. No. 30-1 at 43 (Bucklew dep. at 159 (stating she and Martin did not discuss other possibilities other than that she could bring in her own assistive device)).
According to the EEOC's own guidelines:
See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice No. 915.002 (October 17, 2002) (under heading "General Principals" and subheading "Reasonable Accommodation") (last accessed on June 18, 2012 at
While not determinative, this guidance supports Walmart's denial of Bucklew's request to be allowed to use a Mart Cart because she conceded she needed and used a cane, walker, and her own wheel chair when away from work, and also used devices similar to the Mart Cart when doing her own shopping. The wording of Bucklew's supporting medical statement further supports the reasonableness of Walmart's denial of Bucklew's request given that it refers only to the need for some "machinery/device to help with transport" of items Bucklew needed to lift and carry as part of her job. Nothing in this statement is inconsistent with allowing Bucklew to use her own manual wheelchair (with a basket attached) or even a regular shopping cart (which she could push) as a reasonable accommodation.
As explained in the Report, to make out a claim for constructive discharge, Bucklew must establish the following three elements: (1) she was a qualified individual with a disability at the time of her resignation; (2) the working conditions were objectively intolerable, and (3) Defendant, motivated by disability bias, acted with the intention that she resign. Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 186-87 (4th Cir. 2004). Bucklew faces difficulties with all three elements, at least the second of which is fatal to her claim.
The Report recommends that the court find Bucklew was not a qualified individual on the date she resigned her employment, July 14, 2009, thus defeating the first element of her claim for constructive discharge. This recommendation rests on Bucklew's repeated testimony in this action that she resigned from Walmart when she became physically unable to work and statements Bucklew made in documents submitted in support of her application for Social Security disability benefits.
The latter included the following statement:
Dkt. No. 25-3 at 103 (undated work history report); see also Dkt. No. 30-1 at 44 (Bucklew dep. at 163-64) (confirming statement in application, inability to work since July 2009, and failure to seek any other position since leaving Walmart based on inability to work).
The Report also notes specific statements in the Function Report portion of Bucklew's application for disability benefits, signed April 30, 2010, that Bucklew was unable to take care even of her own personal needs such as bathing, dressing, cooking, or going anywhere by herself. Dkt. No. 43 at 18 ).
In her objection, Bucklew argues that her prior sworn statements regarding her inability to work are not sufficient to defeat her claim for constructive discharge because she never denied that she was "able to work if an employer will accommodate her standing and walking limitations." Dkt. No. 44 at 13. Bucklew relies, in particular, on her February 2, 2012 affidavit in which she avers as follows:
Dkt. No. 30-2 (Bucklew affidavit) (emphasis added).
While it may be possible to reconcile some of Bucklew's sworn statements with her present position, it is not possible to reconcile all of them. For example, the court might accept that Bucklew's claim in her April 30, 2011 application for Social Security disability benefits that she had been unable to work since July 2009 and related deposition testimony in this action were intended only to claim an inability to perform her job with Walmart absent the desired accommodations (use of a stool and Mart Cart). Bucklew's detailed statements on her social security application regarding her inability to take care of her own personal needs might also be construed to refer to difficulties which developed between the time she resigned from Walmart in July 2009 and when she filled out the various portions of her Social Security application between early January 2011 and late April 2011. It is not, however, possible to reconcile Bucklew's February 2012 affidavit claiming a continued ability to work with her detailed assertions to the contrary found in the various documents she signed between January 2011 and April 2011 in support of her application for Social Security disability benefits.
At the least, Bucklew's sworn statements in her application for Social Security benefits preclude her from claiming a continued ability to perform her job at Walmart, with or without accommodation, after January 6, 2011, the date she signed the Disability Report-Adult. Thus, these statements permit the court to disregard Bucklew's entirely inconsistent claim in her February 2012 affidavit that she could still perform her job with Walmart if provided the requested accommodation. It follows that Bucklew cannot claim that she has been a qualified individual at any point after January 6, 2011, which would limit both the available damages and any right to reinstatement.
Whether Bucklew's various inconsistent statements preclude a finding that she was a qualified individual in July 2009 presents a closer question. As noted above, read as a whole, Bucklew's deposition suggests her subjective belief, at the time of her resignation, that she could continue to perform her job if she had received the requested accommodation. Testimony from her managers, moreover, indicates she was continuing to perform adequately up to the date she took medical leave even without the use of the Mart Cart.
For reasons explained in the Report, the court finds that Bucklew's working conditions, even if less than ideal, were not objectively intolerable. Beyond the accommodation issue addressed in her first cause of action, the allegedly intolerable conditions consisted primarily of alleged mean-spirited comments (regarding weight and disability) and occasional interference with the availability of the stool which was to be placed at Bucklew's register.
Bucklew alleges these comments were made and actions taken primarily by CSM Long who Bucklew claims began harassing her on February 25, 2009. Dkt. No. 30-1 at 47 (Bucklew dep. at 178). The alleged harassment included telling Bucklew, in front of customers and co-workers, to "get [her] fat ass off the stool and work" or she would be fired. Id. at 53 (Bucklew dep. at 202). Bucklew also alleges that on this or another occasion Long suggested Bucklew should lose weight, and made comments about getting Bucklew's "fat ass off the motorized cart" and that Long would "be the one to fire" Bucklew. Id. (Long did not, of course, have the power to fire Bucklew, although she may have had some input into such a decision.).
Bucklew also testified that Long hid her stool from her on a number of occasions, ultimately resulting in Bucklew's loss of approximately 20 hours of work. Dkt. No. 30-1 at 46 (Bucklew dep. at 172). For the most part, Bucklew's testimony regarding Long hiding her stool is based on hearsay and supposition. See, e.g., id. at 60 (Bucklew dep. at 228-29) (stating she knew Long had hidden her stool because she could not find it); id. at 50-51 (Bucklew dep. at 189-91) (stating another employee told Bucklew she saw Long taking the stool to the accounting office); id. at 23 (Bucklew dep. at 81 (stating other employees told her Long hid her stool in the accounting office). On one occasion, Long brought Bucklew the stool after Bucklew had been at work for two hours, laughing and stating "were you looking for this?" id. at 24 (Bucklew dep. at 83). Of course, there are other explanations for why the stool was not at the management podium where Bucklew states it was to be kept when she arrived for work. See Dkt. No. 25-5 at 10 ¶ 18 (Dickert aff.) ("When the stool was not in use, [it] was stored off the salesfloor and away from the Front End for safety reasons and to ensure Associates, customers, and the like did not use the stool for unapproved reasons."). Nonetheless, for present purposes the court accepts that the stool was intentionally hidden from Bucklew.
Even with this assumption, the resulting inconvenience is not enough to support a finding of intolerable working conditions forcing Bucklew's resignation. Bucklew testified that she advised Martin (Human Resources) and others of her concerns regarding the missing stool. Dkt. No. 30-1 at 24 (Bucklew dep. at 85). She concedes that she "got the stool back" after she filed EEOC charges. Id. Those charges were filed in March 2009, the same month she discussed the matter with Martin. Id. at 43 (Bucklew dep. at 160). She concedes Martin "handled the situation" and made sure her stool was available at her register, but states the problem started back up again a week later. Id. Bucklew has not, however, proffered evidence sufficient to show that the stool was missing more than a few times between Martin's intervention (in March 2009) and her resignation (on July 14, 2009). Instead, she testified that her contemporaneous notes reflected when there were problems. Id. at 60 (Bucklew dep. at 227) (first stating she recorded every instance in which her stool was hidden, then, when confronted with the existence of only three incidents, stating that she must not have written down every instance). Those notes indicate her stool was missing upon her arrival for work on three days, June 2, 8, and 10, and that she discussed the missing stool with management representatives on June 11 and 12.
Even if the stool was missing for some portion of Bucklew's shift on each of these five days, it would not support a claim of intolerable working conditions as Bucklew testified that the underlying problem (a missing authorization) was resolved by Phil Wally in Human Resources on June 13. Id. at 14 (noting that stool was placed back at the register after Wally's intervention). Bucklew does not report any further missing stool incidents between June 13 and June 30, 2009, when she submitted a medical leave request based various medical problems and her doctor's recommendation that she be on complete bed rest.
The alleged comments made primarily by CSM Long, if true, were mean spirited and may have made the workplace intermittently unpleasant.
As noted above, the working conditions which Bucklew alleges made her job intolerable consisted primarily of comments and actions by two CSMs. Of the two, Bucklew alleges that Long was the primary actor.
For the reasons set forth above, the court adopts the Report as modified and supplemented by this order, grants Defendant's motion for summary judgment in full, and directs entry of judgment for Defendant on all claims.
In the Vocational Rehabilitation Section of her Disability Report-Adult (dated January 6, 2011), she described her condition as follows:
Dkt. No. 25-3 at 125.
Id. at 109. See also id. at 110 (describing her day as eating a breakfast prepared by her husband, getting bathed by her husband, and "sitt[ing] in my wheelchair and stay[ing] depressed" and stating that "even doing the smallest tasks I'm easily tired-out. My husband takes care of me and has to do all the household chores.")
Finally, in the remarks section, Bucklew stated:
Id. at 116.
