Feringa v. Andrews

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

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IRENE FERINGA,

Plaintiff,

-v- 3:19-CV-656

LOUANN ANDREWS; SHARAIN

MURPHY; AMBER HIBBARD;

STEPHANIE McEWAN; WALMART

INC.; WAL-MART STORES EAST, INC.;

WAL-MART STORES EAST, LP;

WAL-MART ASSOCIATES, INC.; and

JOHN DOES 1-10,

Defendants.

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APPEARANCES: OF COUNSEL:

SHEGERIAN & ASSOCIATES JON CHOATE, ESQ.

Attorneys for Plaintiff

90 Broad Street Suite 804

New York, New York 10004

LITTLER, MENDELSON LAW FIRM HINNA M. UPAL, ESQ.

FAIRPORT, NEW YORK OFFICE PAMELA S.C. REYNOLDS, ESQ.

Attorneys for Defendants

375 Woodcliff Drive, 2nd Floor

Fairport, New York 14450

DAVID N. HURD

United States District Judge

MEMORANDUM-DECISION and ORDER

INTRODUCTION

On August 21, 2018, plaintiff Irene Feringa (“plaintiff” or “Feringa”) lost

her job at a Walmart store in Johnson City, New York (the “store”). Who

exactly employed plaintiff is still a contentious topic, but at the least the

parties agree that it was one of three of the entity defendants in this case’s

caption: Walmart Inc.; Wal-Mart Stores East, LP; or Wal-Mart Associates,

Inc. (together “Walmart” or “defendant”).1

On June 3, 2019, Feringa filed an eleven-count complaint in this district:

(I) disability discrimination in violation of the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12112(a); (II) Family and Medical Leave Act

(“FMLA”) interference in violation of 29 U.S.C. § 2614(a)(1)(A) and 2615(a)(1);

(III) age discrimination in violation of the Age Discrimination in Employment

Act, 29 U.S.C. § 623(a); (IV) retaliation in violation of the ADA,

42 U.S.C. § 12203(a); (V) disability discrimination in violation of the New

York State Human Rights Law (“NYSHRL”), N.Y. EXEC. LAW § 296.1(a);

(VI) age discrimination in violation of the same provision of the NYSHRL;

(VII) a hostile work environment claim under the NYSHRL for discrimination

based on disability, age, and leave; (VIII) Retaliation under the NYSHRL,

1 Plaintiff initially alleged in her complaint that the fourth entity defendant, Wal-Mart Stores,

East, Inc., employed her as well, but as will be discussed below she has since disavowed that claim.

N.Y. EXEC. LAW § 296.1(e) and 296.7; (IX) aiding and abetting forbidden acts

under the NYSHRL in violation of N.Y. EXEc. LAW § 296.6; (X) negligent

hiring, supervision, and retention of employees under the New York common

law; and (XI) intentional infliction of emotional distress under the New York

common law.

The complaint also listed a handful of individual defendants who

supervised Feringa during her time at Walmart: LouAnn Andrews

(“Andrews”); Sharain Murphy; Amber Hibbard; and Stephanie McEwan

(“McEwan”), not to mention several John Does. On December 30, 2020, the

individual defendants, as well as Wal-Mart Stores, East, Inc., and Walmart,

moved for summary judgment under Federal Rule of Civil Procedure (“Rule”)

56 against the entirety of plaintiff's complaint. Those motions, having been

fully briefed, will now be decided on the submissions and without oral

argument.

II. BACKGROUND

On August 6, 2010, Feringa was hired to work at the Walmart store in

Johnson City, New York.? Dkt. 72-4, Defendants’ Statement of Material

Facts (““DSMF”) J 1. According to Walmart, Walmart Stores East, LP was

plaintiff's employer at all times relevant to this case. Id. § 2. As plaintiff

'The facts are taken from defendant's statement of material facts where admitted by plaintiff, or

from other record evidence. Disputed facts are flagged and supported by citations to either the

proponent’s statement of material facts or to record evidence.

points out, though, her wage notices identified her employer as Wal-Mart

Stores, Inc., and her tax documents listed her employer as Wal-Mart

Associates, Inc. Dkts. 77-18, p. 1;3 77-19, p. 2.

Feringa spent her time at Walmart as a Sales Associate in the deli

department. DMSF ¶ 3. That role involved customer service, stocking

shelves, and generally keeping the deli section of the store fresh, clean, and

supplied. Id. ¶ 5.

Throughout Feringa’s entire Walmart career, she lived with chronic

obstructive pulmonary disease (“COPD”). DSMF ¶ 15. As its name suggests,

COPD affects a person’s lungs and thus can make breathing difficult. Id.

Although the specifics are scant, plaintiff told at least some Walmart

employees that she suffered from COPD within her first few days of work.

Id. ¶ 17.

Feringa remained employed at Walmart without any glaring issues

relevant to this case until December of 2016. In that month, plaintiff

requested a leave of absence under the FMLA. DSMF ¶ 18. Apparently,

plaintiff’s doctor had told her that something was wrong with her lungs, and

she would need to be excused from work for treatment. Id. ¶¶ 18, 20.

3 Pagination Corresponds with CM/ECF.

Accordingly, Feringa requested a leave of absence from Sedgwick, an

outside company to which Walmart outsourced employee accommodation

requests. DSMF ¶¶ 18, 23. Sedgwick granted plaintiff’s accommodation

request, and granted her a leave of absence from December 1 through

December 7. Id. ¶¶ 19, 23; Dkt. 72-2, p. 124. Fortunately, plaintiff recovered

quickly, and on December 8, 2016 she returned to work with no restrictions.

DSMF ¶ 20.

Yet that would not be the last time Feringa would request

accommodations for her COPD. In May of 2018, plaintiff requested that

Walmart minimize the amount of bending she would be asked to do during

the workday and restrict the amount of weight she could be required to lift to

nine pounds or fewer beginning on May 3, 2018 and ending on May 31, 2018.

DSMF ¶ 22. Sedgwick determined that plaintiff’s job absolutely required her

to do everything that she was asking not to do, and denied her

accommodation request as a result. Id.¶ 23. As an apparently unrequested

alternative, Sedgwick approved plaintiff to take a leave of absence from May

9, 2018 until June 1, 2018. Id. ¶ 24.

Feringa once again returned from her leave of absence with no

restrictions. DSMF ¶ 25. However, at some point plaintiff spoke to the

store’s Personnel Coordinator, defendant Andrews, about her breathing

problems. Id. ¶ 26. Rather than parking in the designated employee lot

some distance away, plaintiff wanted to be able to park in the much closer

customer lot. Id. ¶¶ 26-27.

The Store Manager, the store’s ranking employee, approved Feringa’s

request to park closer to the building without asking for medical

documentation. See DSMF ¶ 27. Even so, apparently another store employee

left a note on plaintiff’s windshield telling her she could not park in the

customer lot. Id. ¶ 28. In response, plaintiff sought out and provided

paperwork signed by her doctor that restored her permission to use the closer

lot. Id.

Also in 2018, Feringa asked the assistant manager to whom she reported,

defendant McEwan, for an accommodation that would relieve her from

having to work the fryers that Walmart had set up in the deli section.

DSMF ¶ 29. According to McEwan, plaintiff said that she had asthma, but

she cannot recall whether plaintiff elaborated how the fryers would make her

asthma worse. Dkt. 72-2, pp. 185-86. McEwan apparently told plaintiff to

get an accommodation form from Andrews, fill it out, and send it to the home

office. Id. at 186. Plaintiff never did. DSMF ¶ 30. Nevertheless, another of

plaintiff’s managers allowed her to work away from the fryers if they became

so smoky that they would interfere with her breathing. Id. ¶ 31.

In the background of Feringa’s breathing-induced hardships—and

according to her in part because of them—plaintiff had some difficulties

getting to and staying at work during 2018. Obviously, frequent absence

from work is seldom a healthy sign for an employment relationship, but in

this particular case Walmart’s attendance policies lent additional gravitas to

her lapses in attendance.

More specifically, during the late stages of plaintiff’s employment,

Walmart used an “occurrence” system to track employee punctuality.

Dkt. 77-8, p. 2. Think of “occurrences” as points, with various attendance

problems counting for a different number of occurrence points. Id. For

example, arriving at work late or leaving early counts for a half point, while

calling in sick for an unauthorized reason counts for a full point. Id. When

an employee accumulates nine or more occurrence points within a rolling

six-month period, the employee is subject to termination. Id.

On February 14, 2018, plaintiff left work more than two hours early.

Dkt. 77-10, p. 1 (noting plaintiff’s attendance on February 14 as “absent early

out”); see Dkt. 77-8, p. 4 (noting that absent early out means employee

clocked out more than two hours before end of shift). According to Walmart’s

occurrence system, leaving this early generally counts for one full occurrence

point. Dkt. 77-8, p. 4. On February 21, 2018, plaintiff left work early again,

although within two hours of the end of her shift. Dkt. 77-10, p. 1. Because

plaintiff left within two hours of her shift’s end, it should only have qualified

for a half-point occurrence.4 Dkt. 77-8, p. 4.

Feringa was absent from her shift altogether on February 24 and 25, and

she did not call in before her shift to let anyone at the store know.

Dkt. 77-10, p. 1. Typically, an absence without so much as a call in counts for

four total occurrence points against the employee: one point for being absent,

and three for failing to report it ahead of time. Dkt. 77-8, p. 3. For these two

days alone, plaintiff would have received eight occurrence points, bringing

her total for February to 9.5 occurrence points when her two early departures

are included.

Concerned about losing her job, Feringa went to McEwan to ask about

removing the occurrence points from February 24 and 25. DSMF ¶ 55.

According to plaintiff, she had failed to show up to work and call in because

her husband was in the hospital over those two days. Id. McEwan removed

the occurrence penalties for plaintiff failing to call in, but left her one point

occurrences for her absences in place. See DSMF ¶ 57(noting that McEwan

removed plaintiff’s two three-point occurrences); Dkt. 77-1, Plaintiff’s

Statement of Material Facts (“PSMF”), ¶ 55 (pointing out that plaintiff still

4 None of the occurrence points plaintiff accumulated in February are reflected in Walmart’s

records, apparently because by the time it ran its attendance tracking report on plaintiff on August

29, 2018, all of plaintiff’s absences predating that report by six months had timed out. See

Dkt. 77-10, p. 1.

received two one-point occurrences for this timeframe); Dkt. 77-8, p. 3

(establishing that failing to call or appear for work counts as two absence

events totaling four points).

Thus, Feringa was again safely below nine occurrence points. However,

that tally took precious little time to grow. Plaintiff again was absent on

March 3. Dkt. 77-10, p. 1. Plaintiff attributes her absence to a severe winter

storm making it impossible for her to get to work. Dkt. 77-2 (“Pl. Aff.”), ¶ 2.

That one-point occurrence brought her occurrence score up to 4.5.

According to Andrew Schwanke (“Schwanke”), a Walmart representative,

there are times when an employee’s absence for a catastrophic weather event

can be treated as an authorized absence, which does not incur an occurrence

point. Dkt. 77-5 (“Schwanke Dep.”), pp. 2-3, 19-20. Typically, though, that

would usually only apply to employees who relied on public transportation.

Id. In any case, a manager has discretion to consider whether an

emergency-related absence should be classified authorized or not, and

managers do not frequently authorize absences for weather. Id. at 20-21, 23.

On March 13, 2018, Feringa again missed work. Dkt. 77-10, p. 2. This

counted as a full point occurrence, bringing her total to 5.5. Id. Plaintiff was

also late to work on April 23, 2018, which added another half point and

brought her up to an even six points. Id. On June 18 and July 2, 2018,

plaintiff again called in sick and missed work both days, racking up another

two points for eight total occurrence points. Id.

On July 10, Feringa again left work early, nudging her point total to 8.5.

Dkt. 72-2, p. 137. Plaintiff again left more than two hours early on July 18,

2018, which counted for a full occurrence point and brought her above nine

points to 9.5. Id. Plaintiff would call in sick on July 23, 28, and August 8,

2018, giving her a total of 12.5 occurrence points after August 8. Id.

Feringa would call in from work a final time on August 15, 2018.

DSMF ¶ 90. She did not provide a reason for calling in. Id. ¶ 91. According

to plaintiff, however, she called in because a severe rainstorm had flooded

several roads, once again making it impossible for her to get to work.

PSMF ¶ 122.

In the background of Feringa’s growing list of absences, Walmart’s policy

was not to warn associates when they were approaching the terminable nine

occurrence points. DSMF ¶ 49. However, as Schwanke testified at

deposition, before an assistant manager terminates an employee, she “should

have a discussion or review with that associate in a disciplinary session that

could lead to termination.” Schwanke Dep. 15. Schwanke further suggested

that “if there [are] no reasons” that an employee provides to excuse her

absences at that “attendance review session,” termination should follow. Id.

That session should typically occur before the session in which the plaintiff is

terminated. Id. at 33.

McEwan met with Feringa for a termination meeting on August 21, 2018.

DSMF ¶ 99. Before that meeting, the only conversation she remembered

having with plaintiff about absences was when plaintiff asked for a reduction

in her occurrence points for her husband’s hospital stay. Dkt. 77-7 (“McEwan

Dep.”), pp. 3-4. Nevertheless, and despite it being Walmart’s apparent policy

to have a disciplinary session prior to termination, plaintiff was told that she

was being terminated for her excessive absences. DSMF ¶ 100. Her

termination took effect that same day. Id. ¶ 103.

Feringa did not explain any of her absences as relating to her COPD, and

she did not ask for any of her absences to be authorized. DSMF ¶ 101.

According to plaintiff, though, all of her absences not caused by natural

disasters were caused by her COPD. Pl. Aff. ¶ 4. In fact, Walmart’s records

reflect that she listed illness/injury as the cause of six of her absences

between March 13, 2018 and August 8, 2018. Dkt. 77-10, p. 2. Plaintiff

further claims that she told a manager every time she returned to work

following an absence that she had missed work due to her breathing

problems. Pl. Aff. ¶ 5.

Feringa claims that she did not mention it to McEwan because she did not

believe that her COPD made her eligible for an authorized absence unless

she took a full leave of absence as an accommodation.5 PSMF ¶ 111. She

also contends that she was not given an opportunity to explain any of her

absences, nor had McEwan asked what had caused them. Id. ¶¶ 112-14.

However, at the close of the termination meeting, McEwan did explain to

Feringa that Walmart employs an Open Door policy. McEwan Dep. 11.

According to McEwan, that policy allows an employee to speak to a manager

or higher ranked employee to petition them to make or change a decision

about the store’s environment. Id. at 12. In other words, plaintiff could have

spoken to one of McEwan’s supervisors to request that her employment be

restored. Id. She did not. DSMF ¶ 102. All told, plaintiff was one of

fifty-eight Walmart employees fired from that store for a breach of the

attendance policy between January 1, 2017 and August 21, 2018. Id. ¶ 104.

Feringa filed her complaint alleging a bevy of discrimination claims on

June 3, 2019. Dkt. 1. Defendants moved for summary judgment in their

favor on December 30, 2020. Dkts. 72; 73. On January 27, 2021, plaintiff

responded, forsaking all of her claims against the individual

defendants: Andrews; McEwan; Sharain Murphy; and Amber Hibbard, as

well as all of her claims against Wal-Mart Stores, East, Inc. Dkt. 77, p. 14.

Plaintiff also affirmatively disavowed all of her claims except for Counts:

5 Defendants dispute that plaintiff did not know that her COPD would entitle her to authorized

absences.

(I) disability discrimination in violation of the ADA; and (V) disability

discrimination under the NYSHRL against Walmart. The Court must

therefore grant summary judgment in defendants’ favor as to the individual

defendants and Wal-Mart Stores, East, Inc., generally and on those claims

against Walmart. Whether the same fate must befall plaintiff's claims under

Counts I and V against Walmart remains an open question.

LEGAL STANDARD

Summary judgment under Rule 56 is warranted if the entirety of the

parties’ submissions show “that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (citing

FED. R. CIv. P. 56(a)). A fact is “material” if it “might affect the outcome of

the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). And a dispute of a material fact is “genuine” if “the

evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Jd. The movant bears the burden of pointing the court to

the materials that it believes demonstrate the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Additionally, a court considering a summary judgment motion “must

resolve any ambiguities and draw all inferences from the facts in a light most

favorable to the nonmoving party.” Ward v. Stewart, 286 F. Supp. 3d 321,

13

327 (N.D.N.Y. 2017) (citing Jeffreys v. City of New York, 426 F.3d 549, 553

(2d Cir. 2005)). Even so, a non-movant’s conclusory allegations without

support from record evidence are insufficient: the non-movant must “put up

or shut up.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). At

bottom, summary judgment tasks the Court with assessing the assembled

evidence and determining whether a reasonable factfinder could find in the

nonmovant’s favor. Treglia v. Town of Manlius, 313 F.3d 713, 719

(2d Cir. 2002).

IV. DISCUSSION

The remaining portion of Walmart’s motion for summary judgment raises

two questions. First, whether all of the remaining Walmart defendants are

properly defendants before this Court. And second, whether Feringa’s

remaining claims can survive.

A. Propriety of the Walmart Defendants

Walmart contends that Wal-Mart Stores East, LP, was Feringa’s only

employer while she worked at the store. Plaintiff disagrees, relying on the

joint employer doctrine to keep her claims against all three Walmart

defendants alive. In a joint employer relationship, “an employee, formally

employed by one entity, who has been assigned to work in circumstances that

justify the conclusion that the employee is at the same time constructively

employed by another entity, may impose liability for violations of

14

employment law on the constructive employer, on the theory that this other

entity is the employee’s joint employer.”6 Arculeo v. On-Site Sales & Mktg.,

LLC, 425 F.3d 193, 198 (2d Cir. 2005).

The test for a joint employer relationship turns on whether there is

sufficient evidence that both employers had immediate control over each

other’s employees. NLRB v. Solid Waste Servs., Inc., 38 F.3d 93, 94

(2d Cir. 1994) (per curiam). The relevant factors to assess that immediate

control include “commonality of hiring, firing, discipline, pay, insurance,

records, and supervision.” Id.

In support of her theory of a joint employer relationship among all three

Walmart entities, Feringa points to her wage notices and tax records, which

indicate that Wal-Mart Associates, Inc. and Wal-Mart Stores, Inc. also had

control over her conditions of employment, especially in terms of control over

her records and pay. Dkts. 77-18, p. 1 (tax records listing Wal-Mart

Associates, Inc. as plaintiff’s employer); 77-19, p. 2 (wage statement listing

Wal-Mart Stores, Inc. as plaintiff’s employer).

Control over records and employee pay are both essential factors to the

joint employer analysis, and thus there is a classic dispute of material fact as

to whether Wal-Mart Associates, Inc., Wal-Mart Stores, Inc., and Walmart

6 Courts in this district apply the same test to claims under the NYSHRL. See, e.g., Farmer v.

Shake Shack Enters., 473 F. Supp. 3d 309, 322-23 (S.D.N.Y. 2020) (applying joint employer doctrine

unilaterally to Title VII and NYSHRL claims in same manner described above for ADA claims).

Stores East, LP were joint employers. See NLRB, 38 F.3d at 94 (including

control over records and pay as elements of joint employer test). Accordingly,

defendants’ motion for summary judgment must be denied.

B. Disability Discrimination and Failure to Accommodate Claims

The ADA prohibits employers from “discriminat[ing] against a qualified

individual on the basis of disability . . . .” 42 U.S.C. § 12112(a). As is often

the case with statutes protecting against employment discrimination,

summary judgment motions relating to the ADA are considered through the

burden-shifting framework the Supreme Court laid out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).7 See Sista v. CDC Ixis N. Am.,

Inc., 445 F.3d 161, 169 (2d Cir. 2006) (applying framework to ADA

discrimination claim).

McDonnell Douglas analysis comes in three stages with three distinct

burdens of proof. First, the plaintiff must present evidence to support a

prima facie claim. McDonnell Douglas, 411 U.S. at 802. Second, if she

succeeds in carrying her initial burden, the burden shifts to the defendant to

demonstrate a legitimate, nondiscriminatory reason for its actions. Id.

Third, if the defendant carries its burden, the final burden is on the plaintiff

7 Plaintiff’s NYSHRL claims are examined under much the same standard. Parker v. Columbia

Pictures Indus., 204 F.3d 326, 332 n.1 (2d Cir. 2000).

to provide evidence that her employer’s proffered nondiscriminatory reason

was pretextual. Id. at 804.

Concerning Feringa’s prima facie case, there are two species of ADA

discrimination claim that she attempts to advance: classic discrimination and

failure to accommodate. For either claim, plaintiff must prove that: (1) her

employer is subject to the ADA; (2) she was disabled as the ADA defines that

term; and (3) she was otherwise qualified to perform the essential functions

of her job, with or without reasonable accommodation. Woolf v. Strada,

949 F.3d 89, 93 (2d Cir. 2020).

A plaintiff’s prima facie case for ADA discrimination and failure to

accommodate claims each also have a fourth element, but that fourth element

differs between the two styles of claim. Because Walmart has attacked the

common third element of Feringa’s qualifications to perform her job with or

without reasonable accommodation for both her discrimination and her

failure to accommodate claims, the Court will tackle the common third

element first. If plaintiff’s claims still stand after that scrutiny, the Court

will then turn to the individualized fourth and final element of each claim’s

prima facie case.

Concerning Feringa’s qualifications to perform the essential functions of

her job as a deli associate, Walmart argues that plaintiff’s excessive absences

render her unqualified and defeat her claim. In rebutting that argument,

plaintiff bears the burden of both production and persuasion “as to the

existence of some accommodation that would allow [her] to perform the

essential functions of [her] employment.” McMillan v. City of N.Y.,

711 F.3d 120, 126 (2d Cir. 2013). Although it is often the case that presence

during specific hours is an essential function of a job, the mere fact that an

employee cannot abide by an employer’s schedule is not by itself enough to

render the employee unqualified to perform the essential functions of her job.

Id. at 126-27 (reversing grant of summary judgment where district court

solely relied on plaintiff’s inability to adhere to schedule to declare plaintiff

per se unqualified).

Although Walmart is certainly correct that attendance at work is an

essential function of Feringa’s job, she has nevertheless made a sufficient

showing to raise a jury question as to whether her absences were so

pronounced as to render her unqualified.

Feringa’s absences were not constant, nor were they chronic. To be sure,

they were more frequent than Walmart would have permitted for a

non-disabled employee, but they were not so frequent as to amount to her

being unqualified for her position as a matter of law. In fact, Walmart’s own

attendance policies evince this, because those policies explicitly allow for a

disabled employee to have absences excused—and thus not counted as

occurrences—as an accommodation for her disability. Dkt. 77-8, p. 2 (noting

that “reasonable accommodation” qualifies as authorized absence). As a

result, a reasonable juror could conclude that the occasional authorized

absence for plaintiff’s COPD would be a reasonable accommodation that

would make plaintiff qualified to perform the essential functions of her job.

See McMillan, 711 F.3d at 127 (holding that “reasonable juror could find that

arriving [at work at] specific time was not” essential function).

Walmart nevertheless cites to several cases that it claims reach the

opposite conclusion, but those cases all involved disabilities so severe that

they necessitated extended leaves of absence, not periodic missed days due to

illness. For example, in Frantti v. New York, this Court found the plaintiff

incapable of performing his job with or without accommodation because he

left work in January of 2016 and did not return until he resigned on July 11,

2016. 414 F. Supp. 3d 257, 281-82 (N.D.N.Y. 2019). Similarly, the plaintiff

in Davis v. Bowes was absent from work for a full six months prior to

experiencing the discriminatory acts of which she complained.

1997 WL 655935, at *16 (Oct. 20, 1997).

All that is to say that while it is of course true that an ability to be present

at work at all can make a person unqualified for their job, Bowes,

1997 WL 655935, at *16, and it is also true that the ADA does not require

employers to tolerate chronic absenteeism, Lewis v. N.Y. City Police Dep’t,

908 F. Supp. 2d 313, 327 (E.D.N.Y. 2012), this case does not run afoul of

either principle.

Of course, it is possible that authorizing Feringa’s absences would have

involved undue hardship, in which case that accommodation would not have

been reasonable. See Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208,

221 (2d Cir. 2001) (noting that defendant can escape liability by proving that

accommodating plaintiff would involve undue hardship).

To prove that hardship, Walmart could have supplied evidence and

testimony to rebut the reasonableness of Feringa’s request for authorized

absences as an accommodation. It could have pointed to the hardship to its

managers and plaintiff’s coworkers caused by the uncertainty of her schedule.

But Walmart provided no such evidence, and instead relied only on the

abstract principle that attendance is an essential function of employment.

That cannot be enough, especially not when Walmart facially recognizes that

plaintiff’s request for her absences to be authorized can constitute a

reasonable accommodation. See McMillan, 711 F.3d at 126-27; Dkt. 77-8,

p. 2.

On the other hand, Feringa has provided evidence that she apparently

worked in her role as a deli associate up until the time of her termination.

DSMF ¶ 103. Walmart has in no way attacked her ability to work in that

role due to her COPD, and plaintiff has therefore adequately proven the third

element of her disability discrimination claim under either theory she

advances. Because Walmart’s attack on plaintiff’s qualifications to perform

her job with reasonable accommodation has failed as to both her

discrimination and failure to accommodate claims, the Court will address the

fourth element for her prima facie discrimination and failure to accommodate

claims individually.

1. Discrimination

For a discrimination claim, the fourth element of a prima facie case

requires the plaintiff to prove that she “suffered [an] adverse employment

action because of h[er] disability.” Woolf, 949 F.3d at 93.

An “adverse employment action” must be causally connected to the

plaintiff’s disability, which means the plaintiff must show that the action

“took place under circumstances giving rise to an inference of discrimination.”

Davis v. N.Y. City Dep’t of Educ., 804 F.3d 231, 235 (2d Cir. 2015). The

plaintiff must ultimately prove that her disability was the but-for cause of

her adverse employment action. Natofsky v. City of N.Y., 921 F.3d 337, 348

(2d Cir. 2019).

Walmart principally argues that Feringa has failed to prove that the act

of discrimination she alleges—namely her termination—was caused by her

disability.8 That argument must be rejected. According to plaintiff, several

of her absences were caused by her COPD, and her absences unquestionably

caused her termination. Pl. Aff. ¶ 4; DSMF ¶ 100. Cause and effect does not

get much more straightforward than that. Thus, plaintiff has met her first

burden and established a prima facie case of discrimination under the ADA

and NYSHRL.

As Walmart correctly notes, however, it has itself carried its burden at the

second stage of the McDonnell Douglas analysis by supplying a legitimate,

nondiscriminatory reason for letting plaintiff go. 411 U.S. at 802. More

specifically, Walmart has pointed to an attendance policy that it uniformly

employs and upon which plaintiff ran aground. Dkt. 77-8, pp. 2-3. Walmart

of course has every right to terminate employees in accordance with its

attendance policies, and the Court is satisfied that this evidence carries

Walmart’s burden.

Accordingly, Walmart’s motion ultimately turns on whether Feringa has

adequately proven pretext. The question is a close one. In Walmart’s favor,

within a rough two-year period prior to plaintiff’s termination, it terminated

fifty-seven similarly situated employees at the same store plaintiff worked in

8 The parties do not dispute that a termination is an adverse employment action.

for violations of the same policy. DSMF ¶ 104. That consistent deployment

of the policy plaintiff ran into provides substantial evidence of legitimacy.

In turn, Feringa has two arguments that she relies on to prove pretext.

First, plaintiff points to the fact that she was never given an opportunity to

explain her absences prior to being terminated. DSMF ¶ 101;

PSMF ¶¶ 112-14. In a vacuum, that is not necessarily evidence of pretext,

but the unique circumstances of this case give the Court pause. Apparently,

it is Walmart’s policy to have a meeting to give an employee an opportunity

to explain her absences, but plaintiff was not given any such meeting.

Schwanke Dep. 15, PSMF ¶¶ 112-14. A reasonable jury could therefore

conclude that McEwan anticipated that plaintiff would pin at least some of

her absences on her breathing problems and decided to cut her opportunity to

do so out at the knees.

That argument may seem to have a somewhat speculative flavor to it, but

in this case that speculation is not as wild as it would otherwise be. To begin,

McEwan was clearly aware that Feringa’s breathing problems might have

had a hand in her absences, because plaintiff had told her about them in the

context of needing an accommodation. DSMF ¶ 29. Andrews and the Store

Manager similarly had notice of plaintiff’s difficulty breathing through her

request to park at the customer lot. DSMF ¶¶ 26-28. And once again,

Walmart allows absences to be authorized as a reasonable accommodation.

Dkt. 77-8, p. 2.

Under these facts, a jury would be within its rights to determine that

Feringa was denied her attendance review meeting because her employer

anticipated that her breathing problems, which amounted to a disability and

which her managers knew about, caused her absences. If plaintiff had been

given her attendance review meeting and had identified her COPD as the

cause of her absences, it would have become much more difficult to justify

firing plaintiff instead of authorizing those absences based on her disability,

which by Walmart’s policies would be at least one of the proper methods of

resolving them. Dkt. 77-8, p. 2. A reasonable juror could conclude based on

those evidentiary inferences that Walmart did not want to have to

accommodate plaintiff’s absences, so it denied her the opportunity to justify

them.

Second, Feringa can relatedly argue that because Walmart had been put

on notice of her breathing difficulties and had accommodated her in the past,

Walmart failed in its obligation to engage in an interactive process with her

to come up with a reasonable accommodation. To that end, if an employee

proposes an accommodation, employer and employee are supposed to engage

in an “interactive process” together to determine whether the employee’s

disability could be reasonably accommodated, and how that accommodation

could be managed. Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135

(2d Cir. 2008).

Although an employer’s failure to participate in that process does not by

itself present a plaintiff with a claim, it is nevertheless evidence of disability

discrimination. Sheng v. M&TBank Corp., 848 F.3d 78, 86-87 (2d Cir. 2017).

However, courts routinely note that identifying the cause of a breakdown in

the interactive process is usually a “fact-sensitive and case-by-case inquiry

into the good faith and reasonable efforts of the parties in light of the

complete set of circumstances.” Quadir v. N.Y. State Dep’t of Labor,

39 F. Supp. 3d 528, 540 (S.D.N.Y. 2014).

In a nutshell, then, if Feringa can successfully prove that it was Walmart’s

fault that the accommodation process broke down, that would also provide

evidence that it discriminated against her on the basis of disability.

Conversely, if Walmart can prove that plaintiff abdicated her responsibility

to participate in the interactive process, that would undermine plaintiff’s

hopes of sustaining her discrimination claim.

Both parties have evidence to support their theory. In Walmart’s favor, it

correctly notes that Feringa clearly knew how the accommodation process

worked, because she had successfully requested accommodations for her

COPD before. DSMF ¶ 18 (plaintiff taking COPD leave of absence in

December of 2016); see also id. ¶¶ 22-24 (plaintiff requesting weight and

bending restrictions and being given leave of absence from May 9, 2018 until

June 1, 2018).

Feringa also clearly understood that she had an obligation to monitor her

absence occurrences, and had previously requested that they be reduced

when she thought she had a qualifying reason. DSMF ¶¶ 55, 57 (plaintiff

notifying McEwan that she had needed to be absent because her husband

was in the hospital and McEwan reducing her occurrence points accordingly).

That evidence would suggest that plaintiff knew that her occurrence points

were over the permitted limit, knew how to talk to her managers to reduce

those points, knew how to otherwise ask for accommodations for her COPD,

and still simply allowed those numbers to sit, giving Walmart license to

terminate her.

On the other hand, McEwan’s failure to have a meeting with Feringa to

give her an opportunity to discuss her absences could also be read to reflect

Walmart abdicating its responsibility to engage in an interactive

accommodation process. DSMF ¶ 101; PSMF ¶¶ 112-14. If a jury were to

find that Walmart failed to give plaintiff a chance to explain her absences

and cut to silence on any possibility of negotiating a means of accommodating

her, that jury could justifiably come to the conclusion that Walmart used its

policy as an excuse to terminate her when in actuality it did not want to try

to find a way to work around plaintiff’s COPD. In further support of

Walmart’s culpability for the breakdown in the interactive process is

plaintiff’s claim that she told her managers that her COPD was causing her

absences. Pl. Aff. ¶ 5. Plaintiff also attempts to mitigate her own culpability

by claiming that she simply did not know that her COPD-related absences

could be authorized as an accommodation. Id. ¶ 6.

A reasonable juror could conclude that Walmart’s complete silence and

denial of any opportunity to actually explain Feringa’s absences was a

greater failing than her failures to be more direct about looking for a way to

manage her COPD. Or a juror could find that plaintiff’s foreknowledge about

how Walmart’s attendance and accommodation policies worked make

plaintiff the culpable one. Because a reasonable juror could conclude in

either party’s favor on the issue of the breakdown in the interactive process,

it is not the Court’s place to make an affirmative ruling. But it does not need

to. Rather, the fact that a jury could consider Walmart culpable for the

interactive process breaking down means that a jury similarly could find

even more support for plaintiff than the record allows at this moment.

All together, the combination of Walmart’s denying Feringa a meeting to

explain her absences and its potential culpability in the breakdown of the

interactive process would allow a reasonable jury to conclude that its

attendance policy was used pretextually to avoid working with plaintiff to

come up with an accommodation. Plaintiff has therefore met her final

burden in the McDonnell Douglas framework, and Walmart’s motion for

summary judgment must be denied.

2. Failure to Accommodate

To a certain extent, Feringa’s success in sustaining her discrimination

claims bleeds over to bolster her failure to accommodate claims. Remember,

the first three elements of both claims are the same, so only the fourth

element of plaintiff’s failure to accommodate claim remains for examination.

Woolf, 949 F.3d at 93. To the point, a failure to accommodate plaintiff must

prove, predictably, that the employer refused to make a reasonable

accommodation for the plaintiff’s disability. Id.

A reasonable accommodation includes “[m]odifications or adjustments to

the work environment, or to the manner or circumstances under which the

position held or desired is customarily performed, that enable an individual

with a disability who is qualified to perform the essential functions of that

position[.]” 29 C.F.R. § 1630.2(o)(1)(ii).

But keep in mind that an employer need not accommodate a plaintiff if it

can prove that her accommodation requests would impose an undue

hardship. See Lovejoy-Wilson, 263 F.3d at 221. Accordingly, an

accommodation need not be perfect, or exactly what plaintiff was looking for,

nor can it eliminate an essential function of a job. Frantti, 414 F. Supp. 3d at

286.

Feringa alleges that Walmart failed to accommodate her by classifying at

least some of her COPD-related absences as “authorized” and therefore not

charging her an occurrence point. See PSMF ¶ 116 (noting that “Walmart

allows . . . managers . . . to authorize absences as a reasonable

accommodation”). Because plaintiff has evidence both that her COPD caused

some of her absences and that those absences were never classified as

authorized, she has successfully established a prima facie case for her failure

to accommodate claims. Pl. Aff. ¶ 4; Dkt. 72-2, pp. 185-86.

Of course, Walmart has nevertheless once again adequately proven a

nondiscriminatory reason for not deeming Feringa’s absences authorized.

Namely, Walmart has correctly pointed out that plaintiff never actually

asked for her COPD-related absences to be authorized, or even told Walmart

that her COPD caused those absences in the first place. DSMF ¶ 101.

Especially because plaintiff had previously demonstrated a working

knowledge of how to get an absence excused, that evidence satisfies

defendant’s burden of a nondiscriminatory basis for its conduct. Id. ¶ 57;

Dkt. 77-10, p. 1 (demonstrating “no call” occurrence points for plaintiff’s

absences relating to her husband’s hospital stay being removed).

To prove pretext Feringa again relies on Walmart’s failure to ever ask her

why she was absent, even though she flagged her absences as caused by

illness. Pl. Aff. ¶ 4; Dkt. 77-10, p. 2 (noting that plaintiff listed illness/injury

as cause for absence for six absences between March 13, 2018 and August 8,

2018). She also claims that she told a manager every time that she returned

to work from an illness-caused absence that her COPD was to blame.

Pl. Aff. ¶ 5. In other words, she argues that Walmart had notice that her

disability was the root of the problem and did nothing to address that with

her.

If this debate looks an awful lot like the disputes concerning the parties’

relative culpability for the breakdown in the interactive process above, that is

because it is. After all, many courts in this district, including the Second

Circuit (albeit in a non-binding summary order), have held that a plaintiff

cannot recover on a failure to accommodate claim if she herself was

responsible for a breakdown in the interactive process. Nugent v. St.

Lukes-Roosevelt Hosp. Ctr., 303 F. App’x 943, 946 (2d Cir. 2008).9

Accordingly, Feringa’s culpability relative to Walmart in the breakdown of

the interactive process is an essential question in resolving plaintiff’s failure

to accommodate claims.

And so, the parties each point the finger at the other and ask the Court to

decide whether Feringa did enough to put Walmart on notice that she was in

need of accommodation. Once again, the Court is not equipped to resolve

9 Courts have held the same for the NYSHRL. Strong v. Fernandez, 133 N.Y.S.3d 377, 380-81

(Sup. Ct. 4th Dep’t 2020).

that question on summary judgment. Such a “fact-sensitive” inquiry is

properly the province of the jury, and Walmart’s motion for summary

judgment must be denied as to plaintiff's failure to accommodate claims as

well. See, e.g., Quadir, 39 F. Supp. 3d at 540.

V. CONCLUSION

At the end of the day, the parties’ disputes in this case boil down to an

argument so classic that the word “trope” does not adequately capture its

well-worn track. Walmart sounds a resolute “you never told me.” Feringa

retorts “you never asked.” The dispute may be a minor one. But the question

of whether plaintiff or Walmart should bear the cost of their mutual

breakdown in communication is not one that the Court can resolve on the

papers. Accordingly, Walmart’s motion for summary judgment must be

denied to the extent it sought dismissal of plaintiff's ADA and NYSHRL

disability discrimination and failure to accommodate claims. However, the

remaining defendants—as well as all of plaintiffs other claims against

Walmart—must be dismissed, as plaintiff herself acknowledges.

Therefore, it is

ORDERED that

1. The summary judgment motions of defendants LouAnn Andrews,

Sharain Murphy, Amber Hibbard, Stephanie McEwan, John Does 1-10,

and Walmart Stores East, Inc, are GRANTED;

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2. Defendants LouAnn Andrews, Sharain Murphy, Amber Hibbard,

Stephanie McEwan, John Does 1-10, and Walmart Stores East, Inc, are

DISMISSED;

3. The summary judgment motions of defendants Wal-Mart Inc.,

Wal-Mart Stores East, LP, and Wal-Mart Associates, Inc. are

GRANTED IN PART and DENIED IN PART;

4. Plaintiff Irene Feringa’s claims under Counts: (II) FMLA

discrimination; (III) age discrimination under the Age Discrimination

in Employment Act; (IV) ADA retaliation; (VI) age discrimination

under the NYSHRL; (VII) hostile work environment under the

NYSHRL; (VIII) NYSHRL retaliation; (IX) aiding and abetting

forbidden acts under the NYSHRL; (X) negligent hiring, supervision,

and retention of employees; and (XI) intentional infliction of emotional

distress, are DISMISSED; and

5. Plaintiff Irene Feringa’s claims under Counts: (I) ADA discrimination;

and (V) disability discrimination under the NYSHRL against

defendants Wal-Mart Inc., Wal-Mart Stores East, LP, and Wal-Mart

Associates, Inc. survive for trial.

IT IS SO ORDERED.

Dated: May 20, 2021 David N {Hurd

Utica, New York. U.S. District Judge

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