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Isaac v. Wal-Mart Stores East, LP

United States District Court, S.D. Alabama, Southern Division

December 7, 2017

KENNETH E. ISAAC, Plaintiff,



         This matter comes before the Court on defendant's Motion for Summary Judgment (doc. 39). The Motion has been briefed and is now ripe for disposition.

         I. Background Facts.

         A. Plaintiff's Employment at Walmart.

         Virtually none of the relevant facts are in dispute.[1] Plaintiff, Kenneth E. Isaac, has been employed continuously as a full-time employee at Walmart Store #1212 in Saraland, Alabama, at all relevant times. (Doc. 40, ¶ 2.) Isaac was hired as a maintenance associate, but was later assigned the job of “Assembler.” (Churchman Dep. (doc. 41, Exh. B), at 20-21.) As an Assembler, Isaac's duties included assembling bicycles, grills, furniture, tables and the like, and performing maintenance functions such as hanging items or repairing things. (Id.; Isaac Dep. (doc. 41, Exh. A), at 29.) Historically, Assemblers at Store #1212 work eight-hour shifts. (Churchman Dep., at 30.) Much of the time, Isaac was the only Assembler working at Store #1212, so he would receive all the work hours for that area; thus, he routinely worked 40 hours per week. (Id. at 31; Isaac Dep., at 80.)

         In 2011, Isaac suffered a back injury while unloading a truck, and underwent surgery for that injury in February 2012. (Isaac Dep., at 29-30; Johnson Dep. (doc. 41, Exh. D), at 43-44.) Following that surgery, Walmart placed Isaac on a light-duty assignment until early September 2014. (Isaac Dep., at 29-30.) At that time, Isaac's treating physician released him to return to full duty as an Assembler, without restrictions. (Johnson Dep., at 44-45.) On September 4, 2014, Isaac signed a copy of the Assembler job description, confirming his ability to perform the essential functions of the position with or without reasonable accommodation. (Id. at 45-46; Isaac Dep., at 56-58 & Exh. 7.) Days later, however, Isaac informed Walmart officials that he had re-aggravated his back injury while assembling furniture, specifically a “pretty heavy table.” (Isaac Dep., at 68; Johnson Dep., at 47.)

         B. The Temporary Alternative Duty Assignment.

         On September 11, 2014, Isaac's physician, Dr. Terry Taylor, released him to return to work with the following restrictions: “no lifting over 40 lbs. No repetitive bending and twisting may not be performed.” (Isaac Dep., at 69 & Exh. 8.) Consistent with the limitations enumerated by Dr. Taylor, Walmart identified the full-time position of “People Greeter” as one that Isaac could perform, and offered him a Temporary Alternative Duty (“TAD”) Assignment to that position at Store #1212. (Isaac Dep., at Exh. 8; Johnson Dep., at 47-48.) Unlike the Assembler job, the People Greeter position does not require lifting of substantial weight. (Johnson Dep., at 48.) On September 10, 2014, Isaac signed a document confirming, “I ACCEPT the Temporary Alternate Duty (TAD) position being offered to me.” (Isaac Dep., at Exh. 8.)[2] Isaac has worked at Store #1212 in accordance with that TAD assignment to the position of full-time People Greeter from September 2014 through the present. (Johnson Dep., at 48; Isaac Dep., at 69.) The People Greeter position pays a lower hourly wage than the Assembler position. (Isaac Dep., at 49.)[3] Nonetheless, throughout the period of Isaac's TAD assignment, including the present day, Walmart has continued to compensate him at the higher Assembler rate, with no pay cut whatsoever to reflect the People Greeter duties Isaac was actually performing. (Id. at 49-51.)

         C. Plaintiff's Scheduling Issues.

         Although his rate of pay remained steady, Isaac did experience a minor difference between the People Greeter position and the Assembler position in terms of scheduling. This difference lies at the heart of Isaac's discrimination and retaliation claims against Walmart in this lawsuit. Scheduling at Store #1212 is generated using an automated system based on the store's weekly sales projection and the number of associates available to work in each area. (Johnson Dep., at 52, 57-58; Churchman Dep., at 30, 37-38.) The schedule is automatically prepared by computer in the first instance, not by a person. (Johnson Dep., at 54.) The more employees available to work in a given area, the fewer hours the auto-generated schedule assigns to each of those employees. (Id. at 52.) The automated schedule is generated three weeks in advance, after which Walmart managers at the store level confirm sufficient coverage for their shifts and finalize the schedule. (Wilson Dep., at 20; Churchman Dep., at 38.) Employees who are dissatisfied with the number of hours they have been assigned may speak to their immediate supervisor and successive levels of management, as needed, to request modifications. (Id., at 21.) At Store #1212, employees approach store officials every day with complaints or requests about their scheduled work hours. (Johnson Dep., at 56.)

         Unlike Assemblers, whose shifts consistently span eight hours at Store #1212, Greeter shifts vary in length and may be five, six, seven or eight hours, depending on what the scheduling system automatically generates in a particular week. (Churchman Dep., at 30, 38.) And again, a key variable utilized in auto-generating a schedule is the number of employees available to work in a given department. As noted, most of the time Isaac was the only Assembler assigned to Store #1212; by contrast, there are normally nine People Greeters employed at that location. (Johnson Dep., at 58.) A byproduct of these facts is that an Assembler at Store #1212 is more likely to be assigned 40 hours on the schedule than a People Greeter would be, simply because there are numerous People Greeters vying for the same shifts, but only one Assembler. (Id.)

         This is precisely what happened to Isaac following his acceptance of a TAD assignment as a People Greeter in September 2014.[4] Unlike the 8-hour shifts he consistently received when working as an Assembler (for a 40-hour work week), Isaac often received shorter shifts as a People Greeter, resulting in totals of less than 40 (but more than 34) hours per week. (Churchman Dep., at 28-30, 32-34.) The sole reason for this shortfall was the auto-generated schedule because door greeter shifts are not uniform. (Johnson Dep., at 54; Churchman Dep., at 38.) On more than 10 occasions, Isaac approached Store #1212 co-manager Randy Scott Johnson, Jr., to request additional hours to increase his total to 40 hours in a particular workweek, because the schedule would show him as being up to four hours short of 40. (Id. at 52-53.) Each time, Johnson assured Isaac that he would take care of the problem. (Id. at 52.) And each time, Johnson in fact adjusted Isaac's hours for that particular week and gave him the additional hours he requested, addressing the issue to Isaac's satisfaction. (Id. at 58; Isaac Dep., at 95, 103.)[5] Walmart payroll records confirm that Isaac has averaged slightly above or slightly below 40 hours per workweek in each of the last two years. (Isaac Dep., at 100-01, Exh. 14 (showing average of 39.92 hours per week in 2015) & 15 (showing average of 40.35 hours per week in 2016).) These figures are commensurate with Walmart's payroll records showing Isaac's average work hours in earlier years. (Isaac Dep., at 99-100, Exh. 12 (showing average of 40.26 hours per week in 2012).)[6]

         D. The Complaint.

         On April 26, 2016, Isaac (while still employed as a full-time People Greeter at Store #1212, receiving 40 hours per week and being paid at the higher Assembler rate) filed the Complaint (doc. 1) against Walmart in this District Court.[7] Although the precise nature of Isaac's claims is not entirely clear from the face of the Complaint, he attached his EEOC Charge of Discrimination against Walmart. The EEOC Charge reflected that Isaac is bringing claims of disability discrimination and ...

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