United States District Court, D. Massachusetts
[Copyrighted Material Omitted]
For Behija Kahriman, Plaintiff: Stephen A. Roach, LEAD ATTORNEY, Roach, Ioannidis & Megaloudis, LLC, Boston, MA; Natalie R. Megaloudis, Roache, Ioannidis & Megaloudis, LLC, Boston, MA.
For Wal-Mart Stores, Inc., Wal-Mart Stores East, L.P., Defendants: Christopher B Kaczmarek, LEAD ATTORNEY, Joseph A. Lazazzero, Littler Mendelson, P.C., Boston, MA.
For Joseph E. Devuono, Defendant: Christopher B Kaczmarek, LEAD ATTORNEY, Littler Mendelson, One International Place, Boston, MA; Joseph A. Lazazzero, Littler Mendelson, P.C., Boston, MA.
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.
This is an action alleging employment discrimination by defendants Wal-Mart Stores, Inc., and Wal-Mart Stores East, L.P., and by defendant Joseph E. Devuono II, the manager of a Wal-Mart store in Lynn, Massachusetts. The plaintiff, Behija Kahriman, was employed in several roles at the Lynn store from April 2002 until February 2010. Kahriman alleges that the defendants intentionally discriminated against her on the basis of her handicap/physical disability in violation of state and federal antidiscrimination laws, and further that Devuono intentionally inflicted emotional distress upon her and interfered with a contractual or advantageous business relationship she had with Wal-Mart. Now before me is the defendants' motion for partial summary judgment.
A. Factual Background
1. Kahriman's Employment at Wal-Mart
Kahriman began working at the Wal-Mart store in Lynn, Massachusetts (store number 2139, hereinafter " the Lynn store" ) in April 2002. Devuono began working for Wal-Mart in 2001 and was Kahriman's supervisor and then store manager at the Lynn store from at least January 1, 2009 to August 10, 2010.
Kahriman's first role at the Lynn store was as a cashier. At the time, she understood that this position would require some heavy lifting. She became a sales floor associate in 2003 or early 2004. An essential function of that position was frequently lifting and carrying items weighing up to and greater than 50 pounds, while moving up and down a ladder. In November 2007, Kahriman was promoted to department manager of the men's department. An essential function of that position was constantly picking up, lifting, sorting, carrying, and placing items weighing up to 30 pounds without assistance and over 30 pounds with team lifting. In February 2009, Kahriman became a manager of the apparel department. Among the physical activities necessary to perform one or more essential functions of this position is moving merchandise and supplies weighing less than or equal to 25 pounds without assistance. For each of these positions, Kahriman affirmed that she had " the ability to perform the essential functions of this position either with or without a reasonable accommodation." Throughout her employment at Wal-Mart, Kahriman received positive evaluations and yearly raises.
During her employment at Wal-Mart, Kahriman experienced ongoing health issues that impacted her ability to perform the lifting duties of each of her positions. In September 2002, she took a leave of absence to undergo abdominal hysterectomy surgery. In a note to Wal-Mart on August 27, 2002, Kahriman's physician stated that Kahriman was scheduled for surgery and " should avoid any strenuous activity when she is experiencing pain." When she returned to work after the surgery, Kahriman asked her supervisors for assistance with lifting, because her stomach muscles were weak and she experienced pain when performing heavy lifting. According to Kahriman, this assistance was not provided to her.
After the 2002 surgery, Kahriman suffered recurring hernia issues. When Kahriman was transferred to a sales associate position in the fabrics department in 2003 or early 2004, she did not make a formal request for accommodation, but she did request lifting assistance from her supervisors. Again, by her own account, she was not provided with such assistance.
In May 2003, Kahriman underwent ventral hernia surgery. Kahriman's physician informed Wal-Mart that she should not lift more than 30 pounds upon her return to work. Kahriman testified that her supervisors and the human resources personnel did not honor her requests for lifting assistance, despite this instruction from her physician. In her role as a sales associate, Kahriman lifted boxes of merchandise for approximately one hour three times per week. Kahriman testified that when she requested assistance with this task, her managers told her to punch out and find another job.
During the holiday season of 2005, Kahriman experienced recurring hernia issues, including pain when she lifted heavy boxes, but was denied leave for hernia surgery. In April 2006, Kahriman took a leave of absence for the surgery. Following the surgery, her physician informed Wal-Mart that Kahriman should not lift more than 10 pounds. Again, despite her physician's instruction, Kahriman's supervisors did not provide her with lifting assistance, and told her that if she could not perform the lifting
duties, she should punch out and go home or find another job.
In November 2007, when Kahriman began working as a manager in the men's department, her supervisor promised her that she would have assistance with lifting boxes weighing up to 50 pounds at the start of her shift. This assistance was rarely provided. In November 2008, Kahriman's physician informed Wal-Mart that she could not lift or carry more than 20 pounds due to lower back pain. In June 2009, following a short leave of absence for back issues, Kahriman informed the store manager, Devuono, that she had developed two ventral hernias and asked for lifting assistance at the start of her shift. Her physician again instructed that she should not lift more than 20 pounds.
Kahriman's health issues at work escalated in September 2009. On September 18, Kahriman's daughter advised Wal-Mart's Legal Department by letter that Kahriman and others had complaints about Devuono, and indicated specifically that when Kahriman told Devuono that she could not lift something heavy due to her hernia, " he tells her that he doesn't really care and that if she wants her job to do what he tells her to do." On September 23, 2009, when Kahriman arrived at work in the morning, Devuono instructed her to unload boxes from a pallet because Wal-Mart's president would be visiting that day. Kahriman said she could not do it because of the heavy lifting involved, but Devuono instructed her to unload the pallet without assistance, or to punch out and go home. After completing the task, Kahriman felt stomach pains and could not stand. That night, Kahriman went to the emergency room and learned that her " hernia came out." She underwent surgery for these issues in October 2009.
Kahriman requested and received medical leave from September 23, 2009 through January 15, 2010. She went in to the store on December 22, 2009 to file a report regarding her injuries on September 23, her last day of performing work. In February 2010, Kahriman's primary care physician provided a note to Wal-Mart stating that Kahriman would be out of work " forever." The note stated that Kahriman was " unable to work period."  Kahriman's last day of official employment with Wal-Mart was February 4, 2010. According to Kahriman, Wal-Mart did not notify her that her employment was terminated; she learned about her termination through a notice from Merrill Lynch regarding one of her benefits in March 2010.
Although Kahriman testified that she understood Wal-Mart's accommodation policies -- discussed in greater detail below -- Kahriman never filed a formal request for an accommodation, because she was afraid she would be fired. She did, however, inform her managers of her physical limitations and her inability to do heavy lifting. Other than her lifting issues, ...