Labor & Employment Law Daily Wrap Up, DISCRIMINATION—PREGNANCY—S.D. Cal.: Walmart associate fired two days after accommodation request can’t advance FEHA claims, (Jan 10, 2025)

By Kathleen Kapusta, J.D.

The temporary associate failed to show that Walmart’s stated reasons for terminating her, including that she was the longest servicing temporary associate, were pretextual.

Although a temporary associate for Walmart, who was fired two days after she requested a medical accommodation for her pregnancy, established a prima facie case for FEHA retaliation and discrimination, she was unable to show the retail giant’s proffered reason for her termination—she was the longest serving temporary employee and her store had been directed to reduce headcount—was pretextual. Granting summary judgment against her claims, a federal court in California found, among other things, that while evidence she was not really the longest service temporary employee might lead to an inference of error, it did not lead to an inference of discrimination (Bradshaw v. Wal-Mart Associates, Inc., No. 23-CV-593 TWR (BLM) (S.D. Cal. Jan. 8, 2025)).

Temporary assignment. The employee was hired in May 2020 as a temporary associate in the role of a personal shopper. Prior to the COVID-19 pandemic, a temporary assignment could not last longer than 90 days or 180 days, depending on the nature of the assignment, and Walmart provided no guarantee that a temporary assignment would last the full 90 or 180 days. During the pandemic, Walmart permitted store managers to keep temporary associates for up to 270 days depending on business needs.

In August, the employee informed the assistant store manager (ASM) that she was having back surgery and would need time to recover. Based on the ASM’s recommendation, the employee voluntarily ended her assignment and, after she recovered, reapplied to return as another temporary associate. She was rehired in September as a personal shopper.

Temporary assignment. As a result of a workplace injury sustained in October, the employee was given a temporary alternative duty assignment allowing her to return to work as a greeter beginning in December.

COVID leave. In January, the employee requested a leave of absence because she “live[d] with her grandmother and [couldn’t] risk getting COVID.” She was granted a leave of absence through the end of February.

On February 8, while she was on leave, the HR regional director sent out a list of stores that were determined to have employed too many temporary associates and that were directed to reduce headcount. The list indicated that the employee’s store was at 113.2 percent of its headcount guidance due to the return of regular associates from their COVID leaves of absence and the over hiring of temporary associates prior to their return.

On February 9, the operations lead for the relevant market area sent an email to the store manager of the employee’s store. The email detailed a report of the longest serving temporary associates, listed the employee by name, and indicated that she was the longest serving temporary associate and had been employed for 253 days.

Accommodation request. When the employee returned to work on March 1, she claimed she informed the store manager, assistant manager, and HR that she was pregnant. On March 2, she requested an accommodation through the third-party provider, which sent an email that same day to the store manager noting the employee’s medical-related request.

Termination. On March 3, Walmart initiated the process to terminate the employee’s temporary assignment. It completed the process the following day.

Retaliation. The employee sued for retaliation under FEHA and the court found her March 2 accommodation request was a protected activity. As to causation, the court rejected Walmart’s assertion the store manager did not know about her request because he made the decision to terminate her on March 1. The company conceded it did not start the administrative process until March 3 and did not complete it until March 4.

In addition, the employee claimed she told the store manager and ASM about her pregnancy when she returned on March 1 and informed them that she had passed out twice due to medical issues. Combined with the third-party provider’s March 2 email concerning the employee’s medically related accommodation request, a reasonable factfinder, said the court, could conclude that the store manager had notice of the employee’s pregnancy-related accommodation request.

Noting further that Walmart terminated the employee only two days after she requested an accommodation, the court found she established sufficiently close temporal proximity to support an inference of causation. Accordingly, the court found she established her prima facie case.

Discrimination. For many of the same reasons, the court found she also established a prima facie case of discrimination under the FEHA. Specifically, there was evidence from which a reasonable factfinder could conclude that Walmart had notice of her pregnancy-related disability before initiating the administrative process to terminate her and that her termination two days after requesting a medical accommodation due to her pregnancy was “because of” that pregnancy-related disability.

Proffered reason. In support of its decision to terminate the employee, Walmart asserted that when the store manager rehired her in September 2020, he had already decided that her assignment would end once regular associates began to return from COVID leave. Further, when she was on COVID-related leave, he was informed that the store’s headcount was at 113.2 percent of headcount guidance because of the return of regular associates and the employee was identified in the report as the longest-service temporary associate. As a result, the store manager had decided, on March 1, to end her assignment.

Pretext. Contending that Walmart’s proffered reasons were pretextual, the employee pointed to the store manager’s testimony that he had decided in September 2020 when he rehired her that he would later terminate her, which, she claimed, was inconsistent with his statement in his subsequent March 1 email that all temporary associates were being evaluated for a permanent position or the termination of their temporary assignment. Finding these statements were complementary rather than contradictory, the court explained that the store manager’s testimony regarding his state of mind in September reflected Walmart’s policy of not guaranteeing employment to any temporary associate and his projection of the changing business needs as the COVID-19 pandemic. His March 1 email simply confirmed that before identifying the employee as a candidate for termination, he followed Walmart’s standard evaluation procedure.

Identification as longest serving employee. The employee next argued that she should not have been the “first-in-line for evaluation” because she was not the longest-serving temporary employee as she had not worked for 253 days. Rather, she contended, she was employed from September 28, 2020, to March 4, 2021, and her COVID-related leave from January 6, 2021, to February 28, 2021, should have been excluded.

But she could not show pretext, said the court, by showing the company’s report regarding the length of her employment was objectively false. Rather, she had to show a discriminatory motive for the company’s actions and no reasonable juror could conclude that Walmart had selected May 31, 2020, instead of September 28, 2020, as the employee’s start date with discriminatory intent. There was no evidence the individual who assembled the report manipulated the information in any way and the employee did begin her first assignment on May 31. This, said the court, “leads to an inference of error, not discrimination.

Further, Walmart identified her as the longest serving temporary employee weeks before she purportedly told store managers about her pregnancy or submitted her accommodation request. As to her contention Walmart should have excluded the time she was on COVID-related leave, while the company had a policy to toll a temporary assignment during medical leave, her stated reason for taking leave was that she could not risk getting COVID because she lived with her grandmother, which did not meet the criteria for a medical leave.

Job performance. The employee also challenged Walmart’s assertion that her job performance was unsatisfactory as she was never disciplined or coached for performance issues. Here, the court found it undisputed that while “evaluating a temporary associate’s job performance, store management considers a temporary assignment comparable to a probationary period in which the temporary associate is not subject to formal warnings or discipline, or formal performance evaluations.” Thus, because she was a temporary associate, the fact that she was not provided with formal warnings or other performance-related documentation did not support the conclusion that her termination was pretextual.

Accordingly, for all these reasons, the court granted summary judgment against her FEHA claims.

The case is No. 23-CV-593 TWR (BLM).

Judge: Robinson, T.

Attorneys: Jared W. Beilke (JML Law) for Ashley Bradshaw. Hilda Aguilar (Ford & Harrison) for Wal-Mart Associates, Inc.

Companies: Wal-Mart Associates, Inc.

Cases: PregnancyDiscrimination DisabilityDiscrimination Discrimination Discharge Retaliation StateLawClaims Covid19 CaliforniaNews