The opinion of the court was delivered by: Jon E. Deguilio Judge United States District Court
MEMORANDUM OPINION AND ORDER
On February 23, 2009, Plaintiff, John A. Walter ("Walter"), filed a complaint in this Court. [DE 1]. Therein, Walter alleges that Defendant, Wal-Mart Stores Inc. ("Wal-Mart"), failed to make reasonable accommodations and terminated his employment in violation of the Americans with Disabilities Act ("ADA") [DE 1 ¶¶ 31-36] and in violation of an Indiana Civil Rights law prohibiting disability discrimination in employment. [DE 1 ¶¶ 37-41] . On June 3, 2010, this case was reassigned to the undersigned for all purposes. On September 29, 2010, Wal-Mart filed a motion for summary judgment against the complaint. [DE 46]. On November 30, 2010, Walter filed a response in opposition. [DE 48]. On December 20, 2010, Wal-Mart filed a reply. [DE 49].
Wal-Mart's motion for summary judgment construes Walter's Count I as incorporating both a failure to accommodate and a disparate treatment claim under the ADA, and this Court agrees. Because Walter has failed to show that a triable issue exists with respect to a threshold requirement common to both types of claim, summary judgment with respect to Count I as a whole must be GRANTED. Because Walter has failed to establish a jurisdictional basis for this Court to hear his state law disability claim, Count II must be DISMISSED without prejudice.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Lawson v. CSX Transp., Inc., 245 F.3d 916, 922 (7th Cir. 2001). A "material" fact is one identified by the substantive law as affecting the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" exists with respect to any such material fact, and summary judgment is therefore inappropriate, when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. On the other hand, where a factual record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289 (1968)).
In determining whether a genuine issue of material fact exists, this Court must construe all facts in the light most favorable to the non-moving party, as well as draw all reasonable and justifiable inferences her favor. Anderson, 477 U.S. at 255; King v. Preferred Technical Grp., 166 F.3d 887, 890 (7th Cir. 1999). Still, the non-moving party cannot simply rest on the allegations or denials contained in its pleadings. It must present sufficient evidence to show the existence of each element of its case on which it will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986); Robin v. Espo Eng'g Corp., 200 F.3d 1081, 1088 (7th Cir. 2000). Furthermore, the non-moving party may rely only on admissible evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir. 2009).
II. FACTUAL BACKGROUND*fn1
The Court provides both versions of some contested facts in light of the special significance factual disputes acquire in the summary judgment context. The inclusion of a certain version of a disputed fact in this section does not suggest that the Court relied on that version in reaching its conclusions. When ruling on a motion for summary judgment, the Court construes all facts in the light most favorable to the non-movant. Here, that means the Plaintiff, and all reasonable and justifiable inferences are drawn in his favor. Anderson, 477 U.S. at 255. Nor does the inclusion of a fact in this section guarantee that it was material to the Court's ruling on this motion, particularly given the highly specific nature of the grounds on which the motion is granted. Indeed, most of these facts prove immaterial. This section is simply intended to provide a comprehensive background of the case and of the evidence presented to the Court.
Walter's Employment at the Fishers Location
On or around March 22, 2007, Walter began work as a People Greeter ("Greeter") at the Wal-Mart location in Fishers, Indiana. [DE 46-20 at 30, 44]. Throughout his employment with Wal-Mart, and throughout most of his life, Walter has had Friedreich's Ataxia, a progressive neurological condition which imposes a number of restrictions on Walter's life activities and work abilities. [DE 46-12; DE 46-20 at 85, 149-55]. For instance, Walter is unable to walk or stand and, instead, ambulates by wheelchair. [DE 46-12 at 2]. In addition, Walter has limited coordination and strength in his hands, restricting his ability to perform fine motor activities, such as operating a cash register. [DE 46-12 at 4-6; DE 46-20 at 164]. Similarly, Walter has further manual limitations which restrict his ability to reach at heights above his wheelchair and limit Walter's ability to push and pull manual pallet jacks. [DE 46-12 at 2, 4]. Finally, Walter also has severely restricted vision, which prevents him from reading documents without the aid of specially-engineered magnification devices. [DE 46-20 at 11, 25, 85, 150, 152].
According to the Greeter job description, which Walter signed, one of the job responsibilities was "provides requested assistance with merchandise returns". [DE 46-20 at 53-56; DE 46-4 at 20; DE 46-8 at 4-5; DE 46-5 at 7-9, DE 46-6 at 2]. Paul Askins, an Assistant Manager at the Fishers location, estimated that Greeters spent somewhere between ten and twenty-five percent of their work time handling returned merchandise. [DE 48-5 at13-14]. In addition, "using fine motor skills, including grasping, turning, and manipulating while marking returned items" was designated as an essential function of the job. [DE 46-4 at 20].
When Walter began working at the Fishers store, Greeters assisted with returns by placing a pink sticker on returned merchandise and then directing customers to the customer service desk. [DE 46-20 at 53, 59-64; DE 46-3 at 5]. However, the pink-sticker procedure resulted in significant fraud and shrinkage to Wal-Mart. [DE 46-14 at 32; DE 46-20 at 54, 75-78; DE 46-13 at 4-7; DE 46-3 at 5]. As a result, Wal-Mart modified its return process by implementing the Express Refund Program. [DE 46-14 at 32; DE 46-13 at 4-7; DE 46-3 at 5]. Most significantly, the Express Refund Program replaced the use of pink-stickers with the use of a Telxon, a hand-held scanner which printed merchandise-specific labels. [DE 46-20 at 54, 67-75; DE 46-13 at 4-5; DE 46-5 at 11-15; DE 46-3 at 5].
Sometime in 2007, before fully implementing the Express Refund Program, Wal-Mart tested the Telxon device at several of its stores, including the Fishers location. [DE 46-13 at 4-5, 8; DE 46-3 at 5-6; DE 46-20 at 54, 64-67]. Walter, however, did not have to use the Telxon during the trial period. [DE 46-20 at 65-66; DE 46-13 at 9, 12-14]. After a short test period, the Fishers store returned to the pink sticker process. [DE 46-20 at 54, 66-67].
Walter's Employment at the Lafayette Location
On November 23, 2007, Walter transferred to the Wal-Mart Store in Lafayette, Indiana. [DE 46-20 at 28-29; DE 46-4 at 12; DE 46-3 at 2, 4-5; DE 46-5 at 6]. When accepting this transfer, Walter confirmed that he could perform the essential functions of the Greeter position. [DE 46-3 at 4-5, 41]. When Walter began working at the Lafayette store in November 2007, Greeters still used pink stickers to assist with returned merchandise. [DE 46-20 at 54, 67]. However, because Wal-Mart's test of the Express Refund Program proved effective in reducing fraudulent returns, in late February and early March 2008, Wal-Mart began implementing the Program at numerous stores, including the Lafayette location. [DE 46-14 at 32; DE 46-16 at 2-3; DE 46-20 at 67; DE 46-5 at 11-14; DE 46-3 at 5-6].
From this point forward, every Greeter at the Lafayette location was expected to use the Telxon to process returns. [DE 46-14 at 32; DE 46-20 at 75; DE 46-16 at 2]. Indeed, Wal-Mart maintains that it now considers using the Telxon to be an essential function of a Greeter's job. [DE 46-14 at 323; DE 46-3 at 7; DE 46-5 at 10]. Accordingly, upon implementation, all Greeters at the Lafayette store received training regarding use of the Telxon, prior to implementation. [DE 46-20 at 67-69; DE 46-5 at 13-14; DE 46-17 at 2]. As part of this training, Walter attempted to use the device for three or four days but was unsuccessful. [DE 46-20 at 69-72, 78-79]. In particular, Walter had difficulty seeing the buttons and typing the requisite information into the keypad. [DE 46-20 at 72, 80-81]. However, potentially evidencing Wal-Mart's confusion regarding Walter's actual difficulties, Store Manager, Lakeia Giles ("Giles"), testified that Walter's difficulties also included being able to hold the Telxon device. [DE 46-5 at 15, DE 48-3 at 12-13]. As a result, following the training, Walter told Assistant Manager, Kristine Emerick ("Emerick"), that he doubted his ability to use the Telxon. [DE 46-20 at 67-69; DE 46-5 at 4].
Some time later, after Walter's difficulties were brought to Giles's attention, Walter asked Giles to allow him to revert back to the pink-sticker process for returning merchandise. [DE 46-20 at 67-69, 80-87; DE 46-5 at 4-5, 19-20]. At the time, Giles did not comment on the feasibility or reasonableness of Walter's request, explaining that Wal-Mart's Accommodation Services Center (frequently referred to as "the home office") would make the decision regarding Walter's request. [DE 46-5 at 19-20]. Wal-Mart now states, however, that, although Wal-Mart was waiting on information before considering Walter's requested accommodation, it now considers that particular accommodation to be "inconsistent" with the essential functions of the Greeter position and would have required a "change" in the those functions. [DE 46-14 at 31-33; DE 46-3 at 7]. Walter additionally states that he made requests for transfer to a different position at the Lafayette store. [DE 46-20 at 133-34; 136-37; 141; DE 46-4 at 40]. Specifically, Walter states that he inquired about jobs in the sporting goods and electronics department. [DE 46-20 at 163-64]. However, Walter did not apply for any vacant positions and could not identify any available positions at that time. [DE 46-20 at 138, 140, 163-64; DE 46-4 at 40].
Disparate Treatment at the Lafayette Location
In addition to the foregoing, Walter also began to notice what he perceived to be disparate treatment during his tenure at the Lafayette location. Walter claims that his schedule was changed more frequently than the other non-disabled Greeters at Wal-Mart's Lafayette location. [DE 48-2 at 8]. Further, Walter claims that Emerick and Morgan Miller ("Miller"), a manager and personnel specialist at the Lafayette location, respectively, sometimes commented on his disability, referring to him as "crippled," or calling him "worthless" or "pathetic, loser". [DE 48-2 at 4-8].
Walter's Accommodation Request Under Wal-Mart's ADA Policy
Under Wal-Mart's written ADA policy, an employee makes an accommodation request by notifying a manager, either orally or in writing, that he needs an adjustment or change at work on account of a disability. [DE 46-5 at 20-21; DE 46-6 at 7-8]. Thereafter, employees would be required to either confirm their request in writing or document the request on a "Reasonable Accommodation form". [DE 46-5 at 22-23, DE 46-6 at 7-9]. This form would then be sent to the ADA Coordinator at Wal-Mart's Accommodation Services Center. [DE 46-5 at 22-23; DE 46-7 at 2]. Thereafter, according to the written policy, the Accommodation Services Center monitored the interactive process for compliance and provided the facility Manager (the Store Manager or Co-Manager) with guidance in making the decision regarding the employee's request for a reasonable accommodation. [DE 46-7 at 2-3; DE 46-8 at 6-14].
The written ADA policy states that the facilities manager had ultimate decision making authority to craft and grant a reasonable accommodation. [DE 46-6 at 8-11]. For instance, the written policy instructed facility managers to notify employees that the facility manager will make the decision regarding the employee's accommodation request within 15 days. [DE 46-6 at 8-9]. In addition, the written policy provided specific actions for the facility manager to take with respect to documenting the facility manager's decision, notifying the employee, and following up with the Accommodations Service Center. [DE 46-6 at 10-11]. However, evidencing potential disparities between Wal-Mart's ADA written policy and the actual practice and potentially evidencing some confusion over who had final decision making authority with respect to Walter's request, Giles testified that Wal-Mart managers deferred all decision-making responsibilities regarding an employee's accommodation request to the Accommodations Service Center, waiting for the home office to make the ultimate decision rather than merely looking to the home office for guidance. [DE 46-5 at 22-23, 43-44; DE 48-3 at 20-28; DE 46-14 at 13]. For instance, Giles states, [t]he interactive process that we have, we disclose the request information out, and we submit to ADA, and from that point, we just wait for a response back from them which direction we are to go in. We don't make the determining factor at store level. We submit the information to them and they get back to us and let us know which direction we need to go in. [DE 46-5 at 23].
In addition, there appears to be similar discrepancies between Wal-Mart's written ADA policy and the actual practice with respect to requesting medical documentation from the employee. For instance, the written policy states that the facility manager has the authority to decide whether medical documentation is needed and to request the same from the employee. DE 46-6 at 9-10 ("If the facility manager decides that medical documentation is required, the Associate will be asked to provide documentation from their health care provider"). However, Giles testifies that the authority to make this determination, whether medical ...