Hirlston v. Costco Wholesale Corp.

          ENTRY DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          TANYA WALTON PRATT, JUDGE United States District Court

         This matter is before the Court on Defendant Costco Wholesale Corporation's (“Costco”) Motion for Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56. (Filing No. 44.) Also pending is Plaintiff's Motion for Leave to File Surreply in Opposition to Defendant's Motion for Summary Judgment. (Filing No. 59). After her employer, Costco, denied her request for accommodation of her workplace restrictions, Plaintiff Karen R. Hirlston (“Hirlston”) filed this action alleging discrimination and retaliation under the Americans with Disabilities Act (“ADA”). (Filing No. 1.) For the following reasons, the Court denies Costco's Motion for Summary Judgment and grants Hirlston's request for leave to file a Surreply.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required by Federal Rule of Civil Procedure 56, the facts are presented in the light most favorable to Hirlston as the non-moving party. See Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

         Costco is a chain of membership-only warehouses that retails goods in bulk and provides services, including an optical department. Hirlston has worked at Costco since December 2009. (Filing No. 56-12.) In August 2010, Hirlston was promoted to the position of Optical Department Manager at the Castleton location in Indianapolis, Indiana. Id. During and before her employment with Costco, Hirlston suffered from an array of disabilities. She was diagnosed with fibromyalgia in 1995. Id. at 2. Since 2011, she has suffered from four herniated disks, two of which are “pushing on nerve roots.” Id. She has also been diagnosed with spinal canal stenosis, facet disease, and bone spurs, and she has suffered from arthritis since she was 11 years old. Id. Because of her spinal disabilities and fibromyalgia, Hirlston has used a cane to get around since childhood. Id. Throughout the years and during bad flare-ups, she has required assistance dressing, stepping into clothing and other everyday activities such as household chores. Id.

         Because of her disability, Hirlston was required to abide by stringent physical restrictions at work. Among other restrictions, she was unable to stand for more than fifteen minutes at a time, walk for more than ten minutes at a time, and was not to push or pull any weight. (Filing No. 46-7.) Her doctor indicated that she would need to sit frequently to relieve pain. Id. She was only permitted to lift or carry up to two pounds below her waist or five pounds above her waist, could only do so “occasionally, ” and could never lift or carry more weight. Id. Hirlston's doctor also indicated that she could never bend, stoop, squat, kneel, or climb stairs or ladders. Id. The duration of each of these restrictions was listed as permanent. Id.

         In October 2014, Hirlston reported to Mike Donaldson (“Donaldson”), the warehouse manager at the Castleton Costco warehouse, that her regional manager Scott Francis (“Francis”) was discriminating against her on the basis of her disability. (Filing No. 56-12 at 2; Filing No. 56-11 at 38-39.) Donaldson contacted his boss, Bill Koza, following Hirlston's report of discrimination. (Filing No. 56-11 at 17.) No. follow-up investigation occurred because Francis was out on leave at the time Hirlston made the complaint. Id. at 17-18; 39. Francis' treatment of Hirlston worsened when she had to use her cane and her disability condition was visible. (Filing No. 56-12 at 2.)

         In the summer of 2014, Costco eliminated chairs with backs for their employees, opting to switch to backless stools. Id. at 3. In December 2014, Hirlston requested a chair with a back as a reasonable accommodation for her disabilities. Id. She provided Donaldson with a note from her doctor.1 Costco eventually provided Hirlston with a chair, however it was not until seven months after her request. (Filing No. 56-12 at 3.)

         In May 2015, Costco announced that there would be a complete remodel of the Optical Department. On May 13, 2015, Costco informed Hirlston that all monitors in the Optical Department would be built into countertops to protect the confidentiality of personal health information. Id.; Filing No. 56-8. This change would eliminate the need for seated workstations. (Filing No. 56-12 at 3.) In anticipation of the remodel's incompatibility with her disabilities, Hirlston spoke with Chris Albury (“Albury”), the Administrative Manager, about the remodel. Id. Albury advised Hirlston that she would need an accommodation. Id.

         Following her conversation with Albury, Hirlston spoke separately to Francis, the Regional Manager, and Charise McDonald (“McDonald”), the Assistant Warehouse Manager, about her concerns over the remodel. Id. She informed them that her disability made it impossible for her to stand all day and she asked what she should do. Id. Both Francis and McDonald told Hirlston that there was no way to accommodate her disability after the remodel. Id. Francis did not offer a reason, and McDonald said that her direction came from “corporate.” Id. at 4. Following this conversation, Hirlston contacted Costco's human resources department and was told that Costco could make an accommodation for her. Id. Based on the direction of that department, Hirlston 1 Donaldson does not recall being involved in Hirlston's request for a chair. Filing No. 56-11 at 14. provided her restrictions to Donaldson and formally requested an accommodation on September 26, 2015. Id.

         In mid-October 2015, Hirlston was contacted by Frances Parisi (“Parisi”) from Rehab West, a company whose services Costco utilizes to facilitate job assessment meetings. Id.; Filing No. 45 at 2-3. Parisi asked Hirlston to participate in a conference call with Donaldson and herself to discuss Hirlston's work restrictions. (Filing No. 56-12 at 4.) On November 3, 2015, Hirlston, Donaldson, and Parisi, among others, attended a job assessment meeting the purpose of which was to discuss Hirlston's requested accommodations. Id. At this meeting, Hirlston suggested two accommodations-the use of a chair for when she needed to sit, and the use of a grabber for when she needed to pick up documents from low shelves and was unable to stoop or bend to pick them up. Id. Hirlston was denied both of those accommodations at the job assessment meeting. (Filing No. 56-11 at 16-17.) Costco denied these proposed accommodations without researching them or speaking to an independent vocational expert or to Hirlston's physician. Id. at 24-26; 43-44. Hirlston also explained that she was able to do the job of Optical Department Manager without violating the lifting restrictions placed on her by her doctor. (Filing No. 56-12 at 6.)

         After denying her request for an accommodation, Costco placed Hirlston on a forced leave of absence on November 4, 2015. (Filing No. 56-12 at 6.) Donaldson wrote a letter to Hirlston explaining that at the job assessment meeting, “[i]t was determined … that you were unable to perform the essential functions of your position of Optical Manager (full-time), with or without accommodations.” (Filing No. 56-4.) “Accordingly, because you cannot return to work with or without accommodation, as a reasonable accommodation, we are placing you on a leave of absence both as a reasonable accommodation and to provide us the opportunity to further explore other potential positions for possible reassignment.” Id. at 2. Hirlston was not paid during this forced leave of absence, but she received short-term disability benefits in accordance with a Costco policy. (Filing No. 56-11 at 37; Filing No. 46-1 at 33-34.) While she was on this forced leave of absence, Hirlston was depressed and unable to leave her house or get out of bed. (Filing No. 56-12 at 8.) Only when Costco rehired her did this depression abate. Id.

         In April 2016, Hirlston had another job assessment meeting, this time with William Kaufman (“Kaufman”), the warehouse manager at the new southside Indianapolis Costco location. (Filing No. 56-12 at 6.) Hirlston believed the meeting was to discuss a potential job at the new location, but at the meeting she learned there was no such position available for her in April 2016. Id. Following that meeting, Donaldson sent Hirlston a letter asking her to contact him by May 10, 2016, if she would like to discuss her suitability for other positions at Costco. Id. at 105-107.

         On October 11, 2016, Hirlston received an e-mail and a voicemail from Kaufman offering her a job as a hearing aid attendant. Id. at 7, 14. Hirlston accepted this position on October 17, 2016, via email. Id. at 13. Six days prior to Hirlston's acceptance of that position, Costco posted a job listing for her old job as Optical Department Manager. Id. at 82-83. In October 2016, Hirlston returned to work at Costco at the southside Indianapolis location as a hearing aid attendant. Id. at 7. Hirlston viewed this as a demotion. Id. As the Optical Department Manager, Hirlston earned approximately $63, 000.00 per year, but as a hearing ...