Blog Post

Brady v. Wal-Mart Stores, Inc., No. 06-5486 (2d Cir. July 2, 2008)

Posted by: Paul Mollica
July 02, 2008
Topic: Daily Developments in EEO Law

What happens when a disabled 19-year-old takes on the international retailing giant, and wins!

Wal-Mart once again finds itself in trouble for mistreating an employee with cerebral palsy (and you would think, by now, that the company would have a special chapter in its HR manual covering just this one disability -- see EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561 (8th Cir. 2007)). At a jury trial, the testimony showed that Patrick Brady had two years' experience working at a local pharmacy receiving prescriptions and dispensing prescription drugs. The CP affected all of his motor skills and thinking, but he was able to navigate the job without incident.

When he went to work at the local Wal-Mart as a pharmacy assistant, his supervisor immediately perceived him as incapable (despite that he made no errors and never required assistance from other employees). The supervisor (named Chin) did not allow Brady to return for a second day at work at the pharmacy counter: "When he returned to the store the next day, Chin 'seemed visibly annoyed to see [him], as if she didn't want anything to do with [him].' Chin told him to go to the personnel department."

"The personnel manager told Brady that the only available job was collecting shopping carts and garbage in the parking lot. Brady felt that this job was 'degrading' because 'it really doesn't involve any skill or knowledge and . . . I felt that they put people out there that couldn't possibly do anything else.' The parking lot job had a different uniform, and Brady understood it to be a demotion. He also testified that, because of his disability, he was less suited to it than he was to working in the pharmacy.

"After Brady's transfer to the parking lot, his father came to the store and spoke with the assistant store manager, telling him that he hoped his son's disability had not played any role in the transfer. The assistant manager promised to investigate, and later James Bowen, the store manager, called Brady's father and, according to Brady's father, told him 'that he didn't think that [Brady] had a fair chance at this job; that [Chin] didn't give him a fair chance and she didn't handle it the right way . . . . And he told me what Ms. Chin had said, that [Brady] wasn't fit for the job. And then she said that, 'I'll put him back in the pharmacy, but if we get sued, it's on you.'"

Only after his parents intervened, the store assigned Brady to the grocery department, but never allowed him to return to the pharmacy. The grocery job came without training or a uniform, and with shifts that conflicted with Brady's school schedule. Brady quit. The jury found that Wal-Mart vioolated the ADA and New York state law (on discrimination, harassment and reasonable accommodation theories), and awarded $2.5 million in compensatory damages (remitted to $600,000), $9,114 in economic damages, $5 million in punitive damages (capped at $300,000), and $2 in nominal damages.

Affirming the verdict, the Second Circuit held that (1) the jury could find that the transfer out to the parking lot was an adverse employment action, even though it did not affect his (slave) wages or (paltry) benefits; (2) an employer might be obliged to enter into the interactive process to provide a reasonable accommodation, even if the employee does not perceive him/herself as disabled, if the "disability is obviously known to the employer"; (3) the district court did not err in allowing the employee to introduce evidence of a consent decree in EEOC v. Wal-Mart Stores, Inc., No. S99 CIV 0414, 2001 WL 1904140 (E.D. Cal. Dec. 17, 2001), which "required Wal-Mart, inter alia, not to engage in any employment practice that would violate the ADA, to train Wal-Mart employees in ADA compliance, and to formulate accurate job descriptions that are consistent with actual job requirements"; and (4) the damage awards could be sustained under federal and state law.