Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 03-1190
ANNA LEAVITT,
Plaintiff, Appellant,
v.
WAL-MART STORES, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Chief Judge,
Baldock,* Senior Circuit Judge,
and Howard, Circuit Judge.
Robert W. Kline with whom Kline Law Offices was on brief for
appellant.
Mark V. Franco with whom Thompson & Bowie, LLP was on brief
for appellee.
August 27, 2003
*
Of the Tenth Circuit, sitting by designation.
BALDOCK, Senior Circuit Judge. Plaintiff Anna Leavitt
brought suit against her former employer, Defendant Wal-Mart
Stores, Inc. (“Wal-Mart”), alleging discrimination in violation of
the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 -
12213 (2000), and Maine state law. Leavitt claimed she is a
qualified person with a disability as defined by the ADA and that
Wal-Mart failed to reasonably accommodate her disability leading to
her constructive discharge. On cross-motions for summary judgment,
the district court concluded the treatment Leavitt alleged was not
sufficiently severe to establish a constructive discharge. The
court also concluded Leavitt was not seeking damages apart from her
constructive discharge claim. Accordingly, the court entered
judgment in favor of Wal-Mart on her discrimination claims.1
Plaintiff appeals, asserting (1) the district erred in
granting Wal-Mart summary judgment on her constructive discharge
claim; and (2) the court erred in failing to address her claim that
Wal-Mart discriminated against her by failing to provide reasonable
accommodations.2 We have jurisdiction pursuant to 28 U.S.C. §
1
Leavitt also filed a claim seeking damages for intentional
infliction of emotional distress. The district court granted
summary judgment in favor of Wal-Mart on this claim after
concluding the treatment Leavitt alleged was not sufficiently
extreme or outrageous to permit recovery. Leavitt does not appeal
this ruling.
2
In the interest of judicial economy, it may have been
preferable for Leavitt to bring this alleged error to the attention
of the district court by filing a Motion to Alter or Amend Judgment
pursuant to Fed. R. Civ. P. 59(e) or a Motion for Relief from
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1291. We affirm the district court’s grant of summary judgment on
Leavitt’s constructive discharge claim, but remand for
consideration of Leavitt’s reasonable accommodation claim.
I.
Leavitt worked at the Wal-Mart store in Falmouth, Maine
from approximately August 7, 1998 to May 10, 2000. Shortly after
she began her employment, Wal-Mart promoted Leavitt from a sales
associate’s position to a management position in its in-store
restaurant. Store records indicate Leavitt received positive
performance evaluations and was performing all duties
satisfactorily. In March 1999, Leavitt suffered a heart attack.
Leavitt asserts she became disabled within the meaning of
the ADA due to health problems associated with the heart attack.
As a result of these health problems, Leavitt has difficulty
breathing and walking and suffers from increased fatigue and
occasional panic attacks. On several occasions, Leavitt’s physical
condition required her to seek medical attention. As a result,
Leavitt’s treating physician documented her condition and placed
restrictions on her work, including limits on both the hours she
Judgment pursuant to Rule 60. But, as Wal-Mart properly conceded
at oral argument, there is nothing in either the Federal Rules of
Civil Procedure or the Federal Rules of Appellate Procedure that
mandate this approach. Following the district court’s entry of
final judgment purporting to dispose of all claims, this court had
jurisdiction over Leavitt’s claim.
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can work and the amount of weight she can lift. Leavitt provided
this documentation to Wal-Mart.
Upon Leavitt’s return to work, Wal-Mart management
proposed to transfer her from her former position to a position
that would require less physical exertion. After observing that
Leavitt still struggled to perform her duties, management proposed
a second transfer to a position that required even less physical
exertion. Both transfers occurred after discussions with Leavitt
and with her consent. Wal-Mart management viewed the transfers as
an accommodation for Leavitt’s medical condition. Despite
transferring Leavitt from a management position to a sales
associate position, Wal-Mart did not reduce her hourly wage.
Before her heart attack, Leavitt primarily worked the day
shift, but covered the evening shift on occasion. When Leavitt
transferred to the new positions, her schedule changed such that
she was working almost exclusively evening shifts. Leavitt was led
to believe this change would be temporary, but after several months
she saw no indication Wal-Mart was attempting to find another
employee to cover the evening shifts. Leavitt asserts working
evening shifts increased her fatigue, which in turn exacerbated her
breathing and walking problems. Leavitt made several requests to
various members of the management team in an effort to have her
schedule changed. Wal-Mart did not accommodate these requests.
There is some evidence Leavitt was led to believe she would not be
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scheduled to work at all if she insisted on only working day
shifts.
Leavitt lives in Casco, Maine and, after her heart
attack, found the lengthy commute to Falmouth increased her
fatigue. She informed Wal-Mart management she would like to
transfer to a Wal-Mart store located in Windham, Maine, which was
significantly closer to her home. The Falmouth store manager
encouraged Leavitt to investigate openings at the Windham store,
but when she informed him of openings took no action to initiate a
transfer.
Leavitt also asserts she experienced some hostile
reactions to her disability. Several evening-shift managers
repeatedly confronted Leavitt as she left work, demanding to know
why she was able to leave early. These confrontations occurred
despite documentation in her work file limiting her shifts to six
hours. Wal-Mart also would not permit Leavitt to park in a
handicapped spot until she obtained a handicapped parking permit.
After obtaining the permit, Leavitt endured comments that she
wasn’t really handicapped and that she must feel entitled to
special treatment. Leavitt also asserts her direct supervisor
asked her to work hours and perform duties beyond those permitted
by her documented medical restrictions. These requests continued
even after Leavitt informed the supervisor of her medical
condition.
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Finally, in late April, Leavitt received notice of a
schedule change that allowed her to work two day shifts over the
next three-week period. She verified the schedule change with the
store manager. But Leavitt’s direct supervisor subsequently
assigned the day shifts to another employee once again leaving
Leavitt with only evening shifts. Leavitt confronted the
supervisor about the schedule change, but the supervisor made it
clear the change would stand. After discussing the matter with her
supervisor, Leavitt believed Wal-Mart would fire her if she did not
comply with the change. She also discovered that her day shifts
had been assigned to a new, non-disabled employee. The schedule
change directly conflicts with Wal-Mart’s stated scheduling policy,
which reserves coveted day-time shifts for employees with more
seniority and requires a manager to consult with an employee prior
to implementing a schedule change.
Frustrated with Wal-Mart’s refusal to accommodate her
requests for a schedule change or a store transfer, and frustrated
with her supervisor’s failure to comply with store policy
concerning scheduling, Leavitt terminated her employment with Wal-
Mart.
II.
Leavitt first asserts the district court erred in
granting summary judgment on her constructive discharge claim. We
review de novo the district court’s grant of summary judgment,
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viewing the evidence and all reasonable inferences in the light
most favorable to the non-moving party. See Gonzalez v. El Dia,
Inc., 304 F.3d 63, 68 (1st Cir. 2002).
Constructive discharge is a label for “treatment so
hostile or degrading that no reasonable employee would tolerate
continuing in the position.” Mesendez-Arroyo v. Cutler-Hammer de
P.R. Co., 273 F.3d 30, 36 (1st Cir. 2001). The standard is an
objective one: the conditions must be so difficult or unpleasant
that a reasonable person in the plaintiff’s shoes would have felt
compelled to resign. Marrera v. Goya of Puerto Rico, Inc., 304
F.3d 7, 28 (1st Cir. 2002) (citing Suarez v. Pueblo Int’l, Inc.,
229 F.3d 49, 54 (1st Cir. 2000) (additional citation omitted)).
Properly applied, this standard “does not guarantee a workplace
free of the usual ebb and flow of power relations and inter-office
politics.” Suarez, 229 F.3d at 54. Rather, the plaintiff must
establish that “working conditions were so unpleasant that staying
on the job while seeking redress would have been intolerable.”
Marrera, 304 F.3d at 28 (quoting Keeler v. Putnam Fid. Trust Co.,
238 F.3d 5, 10 (1st Cir. 2001) (internal quotations omitted)).
A constructive discharge can arise from, among other
things, “reassignment with significantly diminished job
responsibilities, or a decision causing a significant change in
benefits.” See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
761 (1998). However, a reduction in responsibility, unaccompanied
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by a diminution in salary or some other marked lessening of the
quality of working conditions, does not constitute a constructive
discharge. See Suarez, 229 F.3d at 55.
There is no evidence Leavitt’s job transfers were
anything other than a desired accommodation of her health problems.
Leavitt also does not claim Wal-Mart reduced her hours or her
hourly wage. Leavitt’s only complaints, that Wal-Mart failed to
accommodate her requests for a transfer and for more day shifts,
and failed to follow policy in awarding day shifts, are not so
severe and did not produce working conditions so unpleasant that
staying on the job would have been intolerable. Leavitt did not
produce any evidence that working evening shifts and commuting to
Falmouth had a dramatic impact on her health conditions or that she
was unable to continue her work. Accordingly, the district court
did not err in granting summary judgment on this claim.
III.
Leavitt next asserts the district court erred in failing
to consider her reasonable accommodation claim. After resolving
the constructive discharge claim, the district court stated:
Since Leavitt has made clear that in this lawsuit she is
not claiming damages for her treatment apart from the
constructive discharge, I grant summary judgment to the
defendant on [both discrimination counts].
Leavitt v. Wal-Mart Stores, Inc., 238 F. Supp. 2d 313, 316 (D. Me.
2003 (footnote omitted). The court based this conclusion on a
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footnote in Leavitt’s reply brief to her motion for summary
judgment. Id. at 316 n.2. In that footnote, Leavitt noted:
Defendant has moved for summary judgment, or to dismiss,
a “claim” that Plaintiff never raised; that the
disability-based harassment she endured at the hands of
Defendant’s management entitles her to damages under the
ADA or MHRA. This was not Plaintiff’s claim; Plaintiff
mentioned the incidents in her Statement of Material
Facts Not in Dispute in order to show inter alia,
Defendant’s awareness of Plaintiff’s disability and
resulting restrictions; the stress and frustration this
caused Plaintiff and as direct and circumstantial
evidence of Defendant’s discriminatory animus towards her
based on her disability.
Appendix at 214-15(italics in original, citations omitted). This
footnote appeared in response to Wal-Mart’s brief in opposition to
plaintiff’s motion for partial summary judgment. In that brief,
Wal-Mart argued:
It also appears that the Plaintiff’s Motion for Partial
Summary Judgment, for the first time, alleges that
Defendant engaged in disability based harassment by Wal-
Mart management. However, nowhere in Plaintiff’s initial
Complaint was there an allegation (or inference) that the
Plaintiff was the subject of disability based harassment.
At the outset, therefore, Defendant requests the Court to
dismiss this claim....”
Appendix at 200 (citations and emphasis omitted). In support of
the district court’s grant of summary judgment, Wal-Mart argues
both that Leavitt failed to raise a reasonable accommodation claim
in the proceedings before the district court and that, even if
raised, the district court correctly concluded Leavitt expressly
waived the claim based on the referenced footnote.
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Leavitt raised the claim in both her pleadings and motion
briefs. In her complaint, Leavitt clearly pled failure to
accommodate as a ground for recovery. In Count I, Plaintiff’s
complaint asserts Wal-Mart engaged in disability-based
discrimination in violation of the ADA. This Count raises two
distinct theories of recovery under the ADA: a claim that Wal-Mart
failed to provide reasonable accommodation and a claim that this
failure lead to Plaintiff’s constructive discharge. Paragraph 29
of the Complaint states:
Wal-Mart failed to provide Plaintiff with a reasonable
accommodation because of her disability. The record
establishes that Plaintiff is an otherwise qualified
individual with a disability, entitled to reasonable
accommodations to her known physical limitations.
Plaintiff sought these reasonable accommodations – being
assigned to the Fitting Department, having her shifts
occur during the day and a transfer to a location closer
to her home. Wal-Mart refused to take these simple steps
to accommodate Plaintiff solely because of her
disability.
Appendix at 11. This paragraph states a claim separate and
distinct from Leavitt’s constructive discharge claim, which appears
in Paragraph 28 of the Complaint.
Plaintiff also performed discovery on the reasonable
accommodation claim, and dedicated a section of her Statement of
Material Facts to this claim. See Appendix at 33 (Section titled
“Wal-Mart Refuses to Reasonably Accommodate Plaintiff’s Requests to
either be Rescheduled to the Day Shift in Falmouth, or to be
Transferred to its Windham Store”). Plaintiff also raised the
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issue in her motion for partial summary judgment by seeking summary
judgment on Wal-Mart’s affirmative defense that it had provided
reasonable accommodations. Appendix at 125.
Defendant clearly was on notice of Leavitt’s reasonable
accommodation claim. In its motion for summary judgment, Wal-Mart
describes Count I of Leavitt’s Complaint as asserting both a
failure to accommodate and a constructive discharge claim:
Count I, in essence, alleges . . . that Defendant failed
to provide her with a reasonable accommodation because of
her disability and that Wal-Mart constructively
terminated Plaintiff’s employment in whole or in part
because of her disability.
Appendix at 161. The brief goes on to discuss both claims. See
Appendix at 171. Wal-Mart clearly recognized Plaintiff’s complaint
plead two alternative grounds for recovery under the ADA.
Plaintiff also expressly opposed Wal-Mart’s motion for
summary judgment on her failure to accommodate claim. See Appendix
at 188-192 (Section titled “Defendant is not entitled to Judgment
as a matter of law on Plaintiff’s claim that it failed to
reasonably accommodate her disability or discriminated against her
because of her disability”). This argument is distinct from the
following section which opposes summary judgment on “Plaintiff’s
claim that [Wal-Mart] constructively terminated her employment.”
Appendix at 192. Thus, we reject Wal-Mart’s argument that Leavitt
did not raise or preserve a failure to accommodate claim.
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We also conclude the district court erred in interpreting
the footnote as an express waiver of Leavitt’s failure to
accommodate claim. As is clear from the briefs, Leavitt stated
only that she was not asserting a separate disability-based
harassment claim.3 This footnote cannot reasonably be read to
waive Leavitt’s reasonable accommodation claim, given that she
expressly pled the claim and dedicated a significant portion of her
response brief opposing summary judgment on this claim.
Accordingly, we reverse the district court’s entry of
summary judgment on Count I of Plaintiff’s complaint.4 We express
3
Although the First Circuit has yet to address the issue,
several other Circuit courts recently have recognized a cause of
action for disability-based harassment under the ADA. Such actions
permit recovery based on a plaintiff’s exposure to a hostile work
environment, and arise independently of claims based on the
employer’s failure to provide reasonable accommodations. To
succeed on this claim, a plaintiff generally must demonstrate (1)
that she was disabled as defined by the ADA; (2) that she was
subjected to unwelcome harassment; (3) that the harassment
complained of was based on her disability or disabilities; (4) that
the harassment complained of affected a term, condition, or
privilege of employment; and (5) that the employer knew or should
have known of the harassment and failed to take prompt, remedial
action. See, e.g., Gowesky v. Singing River Hosp. Systems, 321
F.3d 503, 509 (5th Cir. 2003); Fox v. General Motors Corp., 247
F.3d 169, 176 (4th Cir. 2001); Keever v. City of Middletown, 145
F.3d 809, 813 (6th Cir. 1998); Cody v. CIGNA Healthcare, 139 F.3d
595, 598 (8th Cir. 1998); see also Silk v. City of Chicago, 194
F.3d 788 (7th Cir. 1999) (assuming, without deciding, that such a
claim is legally cognizable under ADA); Walton v. Mental Health
Ass'n, 168 F.3d 661, 666-67 (3d Cir. 1999) (same).
4
Count II asserts violations of the Maine Human Rights Act and
pleads only Plaintiff’s constructive discharge as grounds for
recovery. Accordingly, the district court properly granted summary
judgment as to Count II.
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no opinion on the merits of Leavitt’s reasonable accommodation
claim or of the arguments made in the cross-motions for summary
judgment. We remand to the district court for consideration of
this claim in the first instance.
IV.
For the reasons stated, we AFFIRM the district court’s
grant of summary judgment on Plaintiff’s constructive discharge
claims. We VACATE the district court’s entry of summary judgment
on Count I of the complaint and REMAND with instructions to
consider Plaintiff’s reasonable accommodation claim.
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