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Date: 10-14-2021

Case Style:


Case Number: 20-1495

Judge: Gustavo A. Gelpí,

Court: United States Court of Appeals For the First Circuit

Plaintiff's Attorney:

Boston, MA - Disability Discrimination Lawyer Directory

Defendant's Attorney: Katherine I. Rand, with whom Daniel R. Strader and Pierce Atwood LLP were on brief


Boston, MA - Disability Discrimination lawyer represented
Appellant-Plaintiff with disability discrimination under the Maine Human Rights Act and for retaliation under the Maine Whistleblower Protection Act and the Maine Human Rights Act charge.

We review the district court's grant of summary judgment
in favor of Wal-Mart de novo. United States ex rel. Jones v.
Brigham & Women's Hosp., 678 F.3d 72, 83 (1st Cir. 2012). Summary
judgment is proper if Wal-Mart can demonstrate that "there is no
genuine dispute as to any material fact and that [it] is entitled
to judgment as a matter of law." Fed. R. Civ. P. 56(a). At this
stage of the proceedings, we construe the record and all reasonable
inferences from it in favor of the party opposing the summary
judgment motion, Benson. Martínez v. Novo Nordisk Inc., 992 F.3d
12, 16 (1st Cir. 2021) (citing Rodríguez-Cardi v. MMM Holdings,
- 3 -
Inc., 936 F.3d 40, 46 (1st Cir. 2019)). Notwithstanding, "[e]ven
in employment discrimination cases where elusive concepts such as
motive or intent are at issue, summary judgment is appropriate if
the non-moving party rests merely upon conclusory allegations,
improbable inferences, and unsupported speculation." Brandt v.
Fitzpatrick, 957 F.3d 67, 75 (1st Cir. 2020) (quoting Ray v. Ropes
& Gray LLP, 799 F.3d 99, 116–17 (1st Cir. 2015)).
We present below all undisputed facts, relying both on
the district court's opinion and order as well as the parties'
proposed statements of uncontested facts that are properly
supported by evidence on the record. Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 150 (2000) (noting that under Rule 56,
"the court should review the record as a whole"). Any genuinely
disputed material fact shall also be detailed therein, where it is
relevant to either party's argument.
II. Background
Benson's story is complicated, involving multiple
lawsuits, countless medical appointments, and a series of Wal-Mart
administrators. In order to provide the reader all relevant
information in a comprehensible manner, we begin with an overview
of the events that led to this case and then turn to a more detailed
description of the testimony, as needed.
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A. Overview
In February 2013, Benson began her employment at the
Wal-Mart store in Windham, Maine, as a cashier. In October 2014,
Benson—at the time a grocery reclamation associate—suffered a
piriformis injury while at work.1 The injury prevented her from
working and she took a leave of absence. Initially, Wal-Mart
refused to acknowledge her injury was "work-related," but
eventually agreed that it was and offered Benson a Temporary
Alternative Duty (TAD) position that she accepted. Benson worked,
apparently without incident from June 2015 when she returned, until
April 2016 when she took another leave of absence to cope with the
side effects of treatment for her injury.
Around the same time, in March 2016, Benson, through
counsel, filed an action against Wal-Mart in the United States
District Court claiming discrimination for failure to accommodate
related to this workplace injury. Benson v. Wal-Mart Stores E.,
L.P., No. 16-cv-114 (DBH), 2017 WL 2729491 (D. Me. June 23, 2017)
("Benson I"). Ultimately, the district court in that case entered
summary judgment for Wal-Mart. The legal analysis in that case
has no bearing upon the case before us, but, as we will discuss
1 The piriformis is a "muscle that arises from the front of
the sacrum, passes out of the pelvis through the greater sciatic
foramen, is inserted into the upper border of the greater
trochanter of the femur, and rotates the thigh laterally."
Merriam-Webster's Medical Desk Dictionary 640 (2005).
- 5 -
later, Benson cites Benson I as motivation for Wal-Mart's alleged
On October 14, 2016, with her first lawsuit still
pending, Benson returned to work in another TAD position, as a
People Greeter. Generally, People Greeters would welcome
customers when they arrived at the store, provide front-end
security, ensure customer safety in the greeting area, respond to
electronic surveillances alarms, and provide customers with
directions. On the days when Benson was scheduled to work, her
assigned shift time was from 6:00 a.m. to 2:00 p.m. It was the
practice of the store to have at least one People Greeter scheduled
each day for each entrance while the store was open. If a People
Greeter was absent, Wal-Mart tended to not replace them, so those
functions went unfilled.
Upon Benson's return to work, two things happened that
are important to her current claims. First, Benson informed
management at the Windham store that she would continue to have
regularly scheduled medical appointments for her work-related
injury. In response, Nancy Little, a Wal-Mart store supervisor,
assured her that "as long as [she] gave her notice [to the store's
Personnel Coordinator] of when the time frame was, that they would
take care of it and make [her] schedule fit accordingly." Second,
Benson also learned of Wal-Mart's Attendance/Punctuality
Policy-Maine ("Attendance Policy"), which had changed since Benson
- 6 -
took a leave of absence earlier in the year.2 With those facts in
mind, we turn to the details of Wal-Mart's Policy and Benson's
efforts to comply with them while attending to her health needs.
B. Wal-Mart's Attendance Policy
The Attendance Policy, effective October 2016 and
applicable to Benson's claims, provides that it is understandable
that employees "may have to miss work on occasion. However,
regular and punctual attendance is a required and essential
function of each associate's job." The Attendance Policy expressly
states that "excessive absences or incomplete shifts" may result
in termination. It further points out that "[w]hen possible, [an
employee] should schedule time off in advance to avoid negatively
affecting other associates, customers, and the company."
The Policy additionally states that "[a]n unauthorized
absence may result from arriving late or leaving early, as well as
missing entire scheduled shifts."3 The Attendance Policy
2 The record is murky on how Wal-Mart informed employees of
the Attendance Policy, but, at her deposition, Benson discussed
her impressions and understanding of the policy and appears to
have acknowledged that she understood it was in place when she
returned to work. Also, Benson does not dispute that she knew the
Attendance Policy was in effect in October 2016.
Separately, all agree that the Attendance Policy was amended
from the policy under which Benson had previously worked. The
record does not contain great detail about the previous policy and
the parties do not argue that the fact of a change is relevant to
Benson's case here.
3 The Attendance Policy assigns: 1 "occurrence" for a full-day
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specifically defines "unauthorized absences" as "any time [an
employee is] away from a scheduled shift for a reason that is not
[a]uthorized or approved by [a] supervisor or manager, unless [the
employee] use[s] an income replacement benefit (such as PTO [or
Paid Time Off], Sick Time or Personal Time)." Too many
unauthorized absences could result in an employee being fired.
On the other hand, the Attendance Policy also provides
a list of absences that are considered "authorized," and,
therefore, per the Policy, need not be "approved by [a] supervisor
or manager."4 Among those were "[w]orkers' compensation" absences.
The "Responsibility to Notify Management" section of the
Attendance Policy specifies that an employee "must make every
effort to report absences or late arrivals (tardies) at least one
hour prior to [the] scheduled start time, unless it would be
unreasonable to expect [the employee] to report the absences due
absence; .5 of an "occurrence" for a late arrival and early
departures of between 10 and 120 minutes, and 1 occurrence for a
late arrival or early departure of more than 120 minutes. Each
"unauthorized" absence or instance of tardiness therefore results
in a partial "occurrence" or one or more "occurrences." If an
associate accumulates nine or more "occurrences" in a rolling
six-month period, through any combination, the employee "will be
subject to termination."
4 It is unclear from the text of the Attendance Policy whether
those absences needed to be approved prior to their occurrence.
As we will discuss, Benson and some Wal-Mart employees have
different opinions as to whether the Policy requires pre-approval
or mere eventual approval.
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to circumstances outside of [the employee's] control." To notify
management of an absence or late arrival, an employee must report
by either calling a designated 1-800 number or using the "Wal-Mart
One" website.5 Benson understood, as she had discussed with
Wal-Mart's management, that she could either provide verbal notice
or make store management aware—via a written note—of her workers'
compensation related absences. The term "workers' compensation,"
which is central to Benson's case, is not defined in the Attendance
The Windham store manager, Susan Bradstreet
("Bradstreet" or "Manager Bradstreet"), interpreted "workers'
compensation" to refer to "leaves of absence" authorized by
Wal-Mart's third-party leave administrator for incapacity due to
a workers' compensation related injury and/or time an associate
was required to miss work in order to attend a medical appointment
or receive treatment for a work-related injury. Manager Bradstreet
did not consider time missed beyond that required to attend a
medical appointment in connection with a workers' compensation
5 Benson considered the "Wal-Mart One" website to be confusing
and noted that it did not offer a category for workers'
compensation absences or tardies.
6 As discussed later, Benson proposed to the district court
as an additional fact (though it reads more like an argument) that
"workers' compensation" extended to missing work due to an illness
caused by medication prescribed as treatment of a workers'
compensation injury.
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injury to be authorized under the Attendance Policy. Manager
Bradstreet expected associates who missed work due to a workers'
compensation medical appointment to be able to produce
documentation of such appointment upon request.7 Also, Bradstreet
expected associates to schedule workers' compensation appointments
during times when they were not scheduled to work; and, when this
was not possible, to only miss so much of their shifts as necessary
to travel, attend, and return from the appointment. On the other
hand, Benson stated that Wal-Mart did not inform her that she
should either schedule her appointments at times when she was not
scheduled to work or only miss time necessary for traveling to and
from a workers' compensation medical appointment.
Kathy Burns-Egan, the store's Personnel Coordinator,
("Coordinator Burns-Egan") was specifically asked, during a
deposition for this litigation, whether an absence, due to
complications in connection with medication for a work-related
injury, would be excused under the Attendance Policy as a "workers'
compensation" absence. Coordinator Burns-Egan responded that she
"would not be able to answer that [because she] really [did not]
know." Coordinator Burns-Egan acknowledged during her deposition
"not remember[ing]" or "recall[ing]" whether the Windham store had
7 It is unclear from the record how this was communicated, if
at all, and this information was not written in the Attendance
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any specific policy that employees must follow when notifying
management about absences relating to a workers' compensation
injury, but noted that it "[s]eems like there should have been
[one]." When asked if she was aware of any written policy
requiring any additional written verification with regard to
workers' compensation absences or tardies, Coordinator Burns-Egan
responded that "I don't recall it written. However, it was
expected, so I'm not sure if it was written somewhere besides on
[the Attendance Policy]."
C. Benson's Absences
Once Benson returned to work as a People Greeter,
attendance issues allegedly persisted. According to Wal-Mart's
records, between October 14, 2016, and December 12, 2016, Benson
was absent, left early, or arrived late to work on twelve
occasions.8 Benson missed a full—day shift on October 18, October
20, October 21, October 28, November 5, November 7, November 12,
and November 28. She left more than 120 minutes early from her
scheduled shifts on November 3, November 17, November 26, and
December 8, 2016. In its internal recording system, Wal-Mart coded
these absences, at least initially, as "unauthorized" under the
Attendance Policy.
8 For purposes of clarity, we shall refer to all absences
(full or partial) including late or early arrivals as "absences"
rather than "occurrences" as they are described in the Attendance
- 11 -
According to Benson, she partially or entirely missed a
shift due to medical appointments to treat her work-related injury
on October 18 and 20 as well as November 3 and December 8. On
October 21 and 28 and November 5, 7, 12, 26, and 28, she missed
her entire shift or left early due to illness or "bad reactions"
(mostly upset stomach) caused by medications prescribed for her
work-related injury. As to the November 17th absence, the parties
stipulated that Benson used "vacation time."
Regarding the October 18 and 20 absences, Wal-Mart
agrees that Benson informed store management of her appointments
ahead of time. Regarding the November 3 and December 8 absences,
Benson contends she gave notice to management prior to her
appointment, but Wal-Mart disputes this fact. The record reflects
that Benson gave advance notice for the November 3 absence, but
did not provide notice for the December 8 absence. On December 8,
Benson had arrived to work on time but left early and missed four
hours of work time for a one-hour medical appointment. At the
time, Benson had not offered Wal-Mart an explanation for this
departure and, at her deposition in this case, could not explain
why she missed four hours of work.
As to the October 21 and 28 and November 5, 7, 12, 26,
and 28 absences, Benson stated during her deposition that she gave
notice to management prior to each one. Wal-Mart contests that
she followed the proper procedure for notifying these absences and
- 12 -
whether she, in fact, gave advance notice for missing her shift or
leaving early. Wal-Mart also states that Benson informed
management that the absences were related to having the flu.
Benson clarified in her deposition testimony that the November 5
absence was not because she had the flu but rather because of a
"bad reaction" to medication prescribed for her workers'
compensation injury.
Overall, Wal-Mart does not dispute, for the purposes of
summary judgment, that the reasons Benson eventually provided for
these absences were true (i.e., Wal-Mart does not contest that
Benson did indeed attend a chiropractor appointment when she
claimed she did). However, Wal-Mart argues that, at the time of
Benson's termination, management considered the absences to be
"unauthorized," because Benson had not properly notified store
management of the reason for an absence, because Benson never
submitted proper documentation of treatment for her work-related
injury, or because the proffered reason for an absence had not met
the Attendance Policy criteria for an excused absence.
D. Communication with Benson about Absences
On December 12, 2016, Manager Bradstreet first noticed,
while reviewing all associates' absences, that Benson had an
"excessive number of occurrences" since returning to work in
October 2016. Bradstreet arranged to meet with Benson to discuss
these absences. According to Bradstreet, the purpose of the
- 13 -
meeting was to give Benson the opportunity to provide a
satisfactory explanation for her absences. If Benson did not
provide a satisfactory explanation, Manager Bradstreet would have
proceeded to terminate her for violating the Attendance Policy.
Benson was absent from most of her shifts that week and, hence,
the two were unable to meet.
The next week, on December 17, 2016, Benson and Manager
Bradstreet finally met. Benson explained that nearly all absences
upon returning in October 2016 were due to her workers'
compensation injury. She attributed the absences from December 12
and 16 to her car breaking down as result of a snowstorm. The
record reflects that Benson requested and was approved to use PTO
time on these dates. As to the December 15 absence, Benson
explained that she had a medical appointment related to her
workers' compensation injury. Wal-Mart contests whether she gave
prior notice about the appointment.
Manager Bradstreet prepared a memorandum on December 17,
2016, following her meeting with Benson. In it, she noted they
had discussed Wal-Mart's Attendance Policy because Benson seemed
to be confused about how to properly notify workers' compensation
absences. The memorandum also details that Benson expressed
concern about receiving "mixed messages" from her workers'
compensation attorney and Wal-Mart's management about required
expectations when informing supervisors about an absence due to a
- 14 -
workers' compensation medical appointment. When Bradstreet asked
Benson to provide medical documentation to support these absences,
she indicated she could not do so during the meeting because her
documentation was at home. At the meeting, Benson further
complained about several aspects of how Wal-Mart was generally
handling issues concerning her workers' compensation injury.
Specifically, Manager Bradstreet detailed in the memorandum that:
She complained about not being [able] to go
[to] physical therapy because [Wal-Mart] would
not approve it even though their independent
doctor recommended she go. She has been
waiting since June for therapy. She
complained about her medication and not being
able to get it filled however, when she takes
it[,] it causes her to "lose control of her
bowels and crap her pants" so she [cannot] be
at work.
The memo continues that after Benson expressed this frustration,
Bradstreet informed her that "going forward she needs to
communicate to a member of management when she has appointments
for [workers' compensation] ahead of time as soon as she is aware
of the appointment." She also stressed that, when calling in,
Benson "needs to speak to a member of management about why she is
not at work that day." Bradstreet stated, in a sworn statement
prepared for this litigation, that in light of Benson's
explanation, Bradstreet held off terminating her.
During her deposition, Benson was asked to review and
comment on Manager Bradstreet's memorandum. Benson recalled
- 15 -
feeling "very uneasy" during the meeting because she got "constant
smirks" and "reactions" for not "saying what [Bradstreet] wanted."
Benson acknowledged not being able to provide precise answers as
to each absence since she did not have her absence sheet in front
of her. She further explained that to avoid giving Bradstreet
"false information," she instead gave Bradstreet permission to
contact her workers' compensation attorney who had documentation
for each medical appointment. As to complaining about the handling
of her workers' compensation injury, Benson did not remember her
exact words, but recalled generally expressing that the company
"kept delaying me with everything." Benson explained that she
"couldn't get a straight answer" about workers' compensation
questions out of anyone from management; specifically, how to time
clock "the way [they] wanted." Finally, Benson indicated that,
following this meeting, she still did not understand what
information store management required from her or if they were
going to request information through her attorney. Benson
expressed that after the meeting, she felt that "pretty much
. . . the harassment started."
E. More Communication and Harassment Allegations
On December 20, 2016, Benson sent an e-mail to Manager
Bradstreet asking her to provide the dates on which Wal-Mart marked
Benson as absent or tardy, so that Benson could further investigate
the matter. This e-mail was in response to Bradstreet's inquiry
- 16 -
regarding Benson's medical records during the December 17 meeting.
After receiving the list of absences and tardies, Benson prepared
a list identifying the reason for each absence and sent it to her
workers' compensation attorney. Benson expected that her workers'
compensation attorney would forward this list to Wal-Mart's legal
counsel and believed this did happen. The record lacks clear
evidence about what action Benson's attorney took or what happened
to this particular list.
Benson's meeting with Bradstreet and subsequent
communication did not change the attendance issues. By early
January 2017, Benson had missed a full shift on January 3 and
arrived late on January 5. According to the record, Benson
informed Wal-Mart—via e-mail and after the fact—that the January
3 absence was because of "bad reactions" to medication prescribed
for the workers' compensation injury and that on January 5 she was
absent because of a workers' compensation medical appointment.
On January 9, Coordinator Burns-Egan spoke to Benson
about her January 5 absence. Benson explained that her doctor had
ordered additional testing after her January 5 appointment, which
caused her to be late. She also informed management about an
upcoming medical appointment on January 13 and that, due to the
appointment, she expected to arrive late to work. On January 13,
2017, upon arriving to the store after the appointment, Benson
sent an e-mail to Bradstreet and Coordinator Burns-Egan stating
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that: "Today I gave Kathie a copy of my M[-]1 form from Dr. Parris
and asked for assistance in my time as there was an error. I
punched in at 9:23, went to lunch at 9:25 and returned from lunch
at 10:24. This is in all relation to workers' comp injury."9 The
"error" of which Benson speaks appears to be the coding of absences
as "unauthorized" where Benson thought the absences ought to be
authorized. In response to the message, Coordinator Burns-Egan
and Manager Bradstreet met with Benson in-person and discussed her
late arrivals. The record contains divergent versions as to what
precisely occurred in the meeting.
According to Benson, she was following "Wal-Mart's
protocol" and not going to work until after her medical appointment
(at 8:30 a.m.) although her shift was scheduled two hours before
the same (at 6:00 a.m.). Benson testified that Bradstreet was
"very nasty," "rude," and even "screamed" at her. At all times,
Benson insisted that she always followed the store's notice
According to Bradstreet, she asked Benson whether Benson
was paid to sit on a couch from 6:00 a.m. to 7:30 a.m., even though
she was scheduled to work. Benson responded that it "cost too
9 An "M-1" form is a "Diagnostic Medical Report" completed by
medical providers treating those with injuries sustained at work,
whose treatment is covered by workers' compensation. The "M-1"
form is required by the Maine Workers' Compensation Board. See
39-A M.R.S.A. § 208.
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much in gas" to go to work first, then to her medical appointment,
and return to work, so she stayed home and "got ready" for work,
per her attorney's instructions. When the meeting concluded,
Bradstreet expressed to Benson "significant concern" regarding her
absences and how she was missing more days than necessary. As a
result, the January 5 and 13 absences were coded as "conditional
status" pending Benson's production of medical documentation,
presumably meaning these absences were conditionally authorized.
On January 19, Benson and Bradstreet met again to further
discuss Benson's absences and medical documentation. The next
day, Benson sent an e-mail to Market Human Resources Manager Wayne
Gottwald ("HR Manager Gottwald") and Coordinator Burns-Egan
indicating that:
Because of the work injury and because of the
actions that were taken by Susan Bradstreet
numerous times yesterday, January 19th, I am
feeling more and more that I am feeling
harassed. If you need a further explanation,
I or my attorney can respond. The harassment
needs to stop. It is illegal and unfair.
In their depositions, HR Manager Gottwald and Coordinator
Burns-Egan each admitted that an e-mail of this nature, according
to Wal-Mart's policy, would have required immediate action and
would have initiated an investigation into any possible acts of
discrimination or retaliation. HR Manager Gottwald explained that
if he had been made aware of this e-mail, he would have had the
responsibility to gather facts, provide these to Wal-Mart's ethics
- 19 -
team, and render a determination if further investigation was
needed. However, the record contains no evidence that anyone at
Wal-Mart actually took action concerning Benson's discrimination
complaint. At their depositions, neither HR Manager Gottwald nor
Coordinator Burns-Egan recalled receiving this e-mail. Similarly,
Manager Bradstreet said she was unaware of the e-mail until the
day her deposition was taken as part of discovery in this case.
F. More Absences and Benson's Firing
On January 26, 2017, Benson arrived late to work because
of a medical appointment related to her workers' compensation
injury. On or about this date, she submitted a medical form
indicating that she could only work every other day because of her
workers' compensation injury. On January 31, 2017, Wal-Mart
adjusted Benson's schedule so that she would work only every other
day, consistent with her doctor's restriction.
On February 8, 2017, Benson was absent from her shift.
Using the web-based platform, she informed the store that she would
miss work due to a snowstorm. Benson requested her absence to be
covered by her PTO, which appears to be permitted by the Attendance
Policy's terms. In her deposition, Benson stated that because she
had to shovel snow that day, her workers' compensation injury was
On February 10, 2017, Benson arrived late for work due
to a workers' compensation medical appointment. On this occasion,
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she did not provide advance notice, but rather gave Coordinator
Burns-Egan the medical record of her appointment upon her arrival.
On February 16, 2017, Benson was absent from her shift. She says
that, using the web-based call-in procedure, she reported that
said absence was due to snow.
Manager Bradstreet consulted with HR Manager Gottwald
regarding Benson's termination. He declined to support the
termination and instead referred the decision to Wal-Mart's legal
counsel because of her previous lawsuit, Benson I. Specifically,
HR Manager Gottwald testified that: "I was asked if I would be
willing to support terminating her because she had exceeded the
absence number that was allowed by the company. And as I also
recall, I did not approve the termination at that time." When
asked why he did not approve the termination, he stated that
"[b]ecause it was in the hands of the legal team and it was not my
decision to make." Furthermore, when questioned who made the
decision to terminate Benson, HR Manager Gottwald explained that
"I believe it was made at the legal level either -- I don't know
if it was made by the [Wal-Mart] attorney or the home office
corporate attorney."
On February 18, 2017, Wal-Mart terminated Benson. In
the "Separation Notice" Manager Bradstreet documented the alleged
basis for the termination as follows:
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Margaret has been repeatedly asked to
communicate absences and tardies to store
management. She has chosen not to do this.
She is being terminated for 21 attendance
exceptions; policy allows for 9.
G. District Court Proceedings
Following her termination, in November 2018, Benson sued
Wal-Mart in state court alleging disability discrimination and
retaliation under Maine state law. Benson argued that, pursuant
to the Maine Human Rights Act ("MHRA"), 5 M.R.S. § 4572, Wal-Mart
discriminated against her based on medical disability and
terminated her because of a workers' compensation injury. She
further asserted that her firing occurred in retaliation for
engaging in activities protected under the Maine Whistleblower
Protection Act ("MWPA"), Me. Rev. Stat. Ann. tit. 26, § 833(1)(B),
and related provisions of the MHRA.
Following removal of the case to federal district court,
discovery, and motions practice, the district court issued an order
granting summary judgment in Wal-Mart's favor concluding that
Benson "failed to generate a genuine issue of material fact
concerning the first element of her disability discrimination
claim." Benson v. Wal-Mart Stores East, L.P. ("Benson II"), No.
19-cv-41 (LEW), 2020 WL 1669851, at *6 (D. Me. Apr. 3, 2020).
Specifically, regarding the disability discrimination claim, the
district court ruled that Benson's argument suffered from a "fatal
flaw" because she failed to show she is a "qualified individual"
- 22 -
under MHRA. Id. at *5. To arrive at this conclusion, it analyzed
whether she could "perform the essential functions of her job" and
if not, whether "she identified any reasonable accommodation that
would enable her to perform those functions[.]" Id. The district
court held that the "need for attendance [was] self-evident" and,
thus, an essential function of the People Greeter job, and that
there was no evidence to support any reasonable accommodation that
would have allowed Benson to attend work. Id. at *6. As to the
retaliation claim, the district court concluded Benson failed to
adduce sufficient proof to show causation between the proffered
protected activities and her termination and whether Wal-Mart's
explanation for Benson's termination was pretextual. Id. at *8.
This appeal followed.
III. Discussion
On appeal, Benson posits that the district court erred
in finding, as a matter of law, that she was not a " qualified
individual" under MHRA and failed to establish the elements of her
retaliation claim, pursuant to MHRA and MWPA. We begin with
addressing whether summary judgment was appropriate on Benson's
disability discrimination claim and then turn to her retaliation
A. Disability Discrimination
The MHRA provides that "[t]he opportunity for an
individual to secure employment without discrimination because of
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. . . physical or mental disability . . . is recognized as and
declared to be a civil right." Me. Rev. Stat. Ann. tit. 5, § 4571.
The Maine Law Court recognizes that "[f]ederal law guides [its]
construction of the MHRA." Cookson v. Brewer Sch. Dep't, 974 A.2d
276, 281 (Me. 2009); see also Kelley v. Corr. Med. Servs., Inc.,
707 F.3d 108, 115 n.12 (1st Cir. 2013) ("[D]isability-related
claims under the MHRA are construed and applied along the same
contours as the [Americans with Disabilities Act (ADA)]")
(internal quotation marks and citations omitted).
In cases such as the present, the plaintiff must
establish a prima facie case of discrimination, and, if satisfied,
the burden shifts to the defendant to articulate a legitimate,
non-discriminatory reason for the action. Ultimately, the
plaintiff must come forward with evidence of pretext.
See Collazo-Rosado v. U.P.R., 765 F.3d 86, 92 (1st Cir. 2014).
1. Prima Facie Case of Discrimination
Mirroring the ADA, to establish a prima facie case of
disability discrimination under MHRA, Benson must show that: "(1)
[she] has a disability; (2) [she] is otherwise qualified, with or
without reasonable accommodations, to perform the essential
functions of [her] job; and (3) [her] employer adversely treated
[her] based in whole or in part on [her] disability." Daniels v.
Narraguagus Bay Health Care Facility, 45 A.3d 722, 726 (Me. 2012).
This stage of the case is not supposed to be burdensome. Lockridge
- 24 -
v. Univ. of Me. Sys., 597 F.3d 464, 470 (1st Cir. 2010) (noting
that prima facie discrimination inference requires only a "modest"
showing); Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37,
44 (1st Cir. 1999) (noting that initial prima facie requirements
are not especially "onerous" (quoting Brennan v. GTE Gov't Sys.
Corp., 150 F. 21, 26 (1st Cir. 1998))).
There is no dispute that Benson has a disability
(required by the first element) and that she was eventually fired
(the adverse treatment from the third element). The central
question, the parties and the district court agree, is about the
second element—is Benson qualified for the job? Pursuant to the
MHRA, a "qualified individual with a disability" is defined as "an
individual with a physical or mental disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position that the individual holds or
desires." Me. Rev. Stat. Ann. tit. 5, § 4553(8-D). We thus focus
our analysis on whether attendance is an "essential function[]" of
the People Greeter job and then turn to whether Benson can perform
that function with a "reasonable accommodation."
Is Attendance an Essential Function of the Job?
An essential function is "fundamental" to the position
in question. Sepúlveda-Vargas v. Caribbean Rests., LLC, 888 F.3d
549, 553 (1st Cir. 2018) (quoting Kvorjak v. Maine, 259 F.3d 48,
55 (1st Cir. 2001)). "The term does not include 'marginal' tasks,
- 25 -
but may encompass 'individual or idiosyncratic characteristics' of
the job." Id. (quoting Ward v. Mass. Health Res. Inst., Inc., 209
F.3d 29, 34 (1st Cir. 2000)). When determining whether a function
is "essential," we consider factors such as the written
requirements or description of the job and the consequences of not
requiring the function. 29 C.F.R. § 1630.2(n)(3); accord Ward,
209 F.3d at 34. We are not tasked with second-guessing an
employer's legitimate business judgment about what is required of
its employees, but we will consider whether the employer actually
enforces this requirement of its employees or merely pays it lip
service during litigation. See Gillen v. Fallon Ambulance Serv.,
Inc., 283 F.3d 11, 25 (1st Cir. 2002); see also Jones v. Walgreens
Co., 679 F.3d 9, 14 (1st Cir. 2012) (noting that courts give a
"significant degree of deference to an employer's own business
judgment" about the necessities of a given job). Of particular
relevance here, we have noted that regular attendance "is an
essential function of any job." Colón-Fontánez v. Municipality of
San Juan, 660 F.3d 17, 33 (1st Cir. 2011) (internal quotation marks
omitted); accord EEOC v. Ford Motor Co., 782 F.3d 753, 761 (6th
Cir. 2015) ("That general rule—that regularly attending work
on-site is essential to most jobs, especially the interactive ones—
aligns with the text of the ADA.").
Benson argues the record permits the conclusion that
regular attendance is not an essential function of the People
- 26 -
Greeter job, which is all Benson would need at this stage of the
litigation to survive summary judgment. In support of this
argument, Benson notes that, in its briefing before the district
court, Wal-Mart only cited two facts in support of the idea that
attendance is an essential function of this job: (1) Wal-Mart only
scheduled one People Greeter to work at each entrance at a time
and (2) therefore, if that People Greeter was absent, the People
Greeter's tasks went unfulfilled. Benson contends that these
related facts are disputed and are insufficient as matter of law
to support a holding that regular attendance is not an essential
function of this job. Further, as Benson sees it, Wal-Mart
submitted no evidence of "written job descriptions, consequences
of not requiring the function, work experience of past incumbents,
and work experience of current incumbents," Ward, 209 F.3d at 34
(citing 29 C.F.R. § 1630.2(n)(3)), without which the district
court could not properly analyze the essential-function question
using those factors we have found to be important.
As to Benson's first argument, there is a difference
between an "essential job" and an "essential function" of a given
job. Wal-Mart may not consider the People Greeter position as an
"essential job," as some parts of the record reflect that the
position often went unfilled, but this does not imply that
"attendance" fails to be an "essential function" of this job. Even
if Wal-Mart scheduled more than one People Greeter to work at each
- 27 -
entrance, as Benson says it did, that, on its own, appears to show
that Wal-Mart valued having People Greeters present in the store,
necessitating attendance. Benson's second argument, that there
was no evidence that Wal-Mart considered attendance to be an
essential function of the People Greeter role, is similarly
unsupported by the record. This claim ignores the text of the
Attendance Policy which says that "regular and punctual attendance
is a required and essential function of each associate's job."
See Jones, 679 F.3d at 14; see also 29 C.F.R. § 1630.2(n)(3).
Above all, Benson cannot perform any of the functions
of a People Greeter outside of the hours or location assigned by
Wal-Mart and so, showing up is an essential function of that job.
See Ward, 209 F.3d at 35-36; see also Tyndall v. Nat'l Educ. Ctrs.,
Inc. of Cal., 31 F.3d 209, 213-14 (4th Cir. 1994) (holding that
attendance during assigned class times is an essential function of
job as a teacher).
Can Benson Perform the "Essential Function" of Attendance with a
Reasonable Accommodation?
Having determined that attendance is an essential
function of the People Greeter position, we consider whether Benson
could perform that function (that is, attend work) with a
reasonable accommodation. The ADA requires an employer "to make
'reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability
- 28 -
who is an applicant or employee, unless [the employer] can
demonstrate that the accommodation would impose an undue hardship
on [its] operation of the business.'" Ortiz-Martínez v. Fresenius
Health Partners, PR, LLC, 853 F.3d 599, 604 (1st Cir. 2017)
(quoting 42 U.S.C. § 12112(b)(5)(A)). To prevail in her claim,
Benson bears the burden of showing that (1) she has made a
sufficient request of accommodation, (2) the accommodation would
enable her to perform the essential functions of her job, and (3)
the accommodation is facially reasonable. Echevarría v.
AstraZeneca Pharm. LP, 856 F.3d 119, 127 (1st Cir. 2017).
There is no credible debate that Benson requested an
accommodation. Upon her return from leave in October of 2016,
Benson informed management that she would have regularly scheduled
medical appointments for her work-related injury and Supervisor
Little told Benson that "as long as [she] gave her notice [to the
store's Personnel Coordinator] of when the time frame was, that
they would take care of it and make [her] schedule fit
Nor is there any reasonable argument that authorizing
some absences or tardiness would not enable Benson to show up the
rest of the time. Wal-Mart argues that Benson fails to show "that
[accommodating] her poor attendance would make it possible for her
to heal, to adjust her medication in order to better control her
pain, or to accomplish anything else that would enable her to come
- 29 -
to work as scheduled." This, however, misses the point of Benson's
sought accommodation, which is akin to a modified work schedule
where she is excused from working when her disability necessitates
treatment. Indeed, a modified work schedule is a classic
reasonable accommodation, considered by the ADA. 42 U.S.C.
§ 12111(9)(B).
The decisive factor ultimately is whether Benson's
requested accommodation is "facially reasonable." See Echevarría,
856 F.3d at 127. Wal-Mart makes an understandable point that it
needs People Greeters to show up in order to do their jobs and
that Benson cannot always do that. However, more persuasive than
Wal-Mart's arguments on appeal is Wal-Mart's own Attendance
Policy, which says that any tardiness or absence related to
workers' compensation is permitted. Further, the Attendance
Policy also explicitly considers any missed time due to a
"reasonable accommodation" to be permitted as well.
Mindful that the prima facie case is not difficult to
make out, we conclude that Benson has done enough and so the burden
shifts to Wal-Mart to articulate a legitimate non-discriminatory
reason for Benson's termination.
2. Legitimate Non-Discriminatory Reason and Pretext
Benson appears to agree that Wal-Mart's proffered reason
for her termination—excessive unexcused absences—is, on its face,
a legitimate non-discriminatory reason for her firing. She argues
- 30 -
that this reason is pretextual, positing that if her absences were
authorized by the terms of the Attendance Policy, and, thus, she
indeed complied with the written and unwritten Attendance Policy,
then her termination for excessive unexcused absences was
"[T]here is no mechanical formula for finding pretext."
Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003)
(quotation marks and citations omitted). However, we have noted
that "[o]ne way to show pretext is through 'such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for
its action that a reasonable factfinder could rationally find them
unworthy of credence and with or without the additional evidence
and inferences properly drawn therefrom infer that the employer
did not act for the asserted non-discriminatory reasons.'"
Billings v. Town of Grafton, 515 F.3d 39, 55–56 (1st Cir. 2008)
(citations and alteration omitted). The record contains enough
facts (however disputed) that make summary judgment inappropriate
on these claims.
Benson puts forward evidence that most of her absences
should have been coded as "authorized" because they were related
to her workers' compensation injury and further followed what she
understood to be Wal-Mart's policy for notifying management of
- 31 -
such absences. Two grey areas in the record support Benson's
pretext argument and preclude summary judgment for Wal-Mart.
First, it is at best unclear as to whether an illness
and side-effects from medications prescribed for treating a
workers' compensation injury could be excused under the Attendance
Policy. As per Coordinator Burns-Egan's deposition testimony,
this material fact can neither be confirmed or denied. When
questioned about the matter, Coordinator Burns-Egan responded that
she "would not be able to answer that [because she] really [did
not] know" if an illness related to side-effects from a workers'
compensation injury medications would be excused under the
Attendance Policy. Whether store management even understood the
contours of the policy upon which it based its termination of
Benson is hence disputed.
Second, the record is, at best, murky as to whether
Benson was indeed aware of Wal-Mart's unwritten job expectations,
if they existed at all, regarding documentation of worker's
compensation treatment or obtaining permission from management
before missing a shift. Similarly, as per Coordinator Burns-Egan's
deposition testimony, she did "not remember" nor "recall" whether
the Maine Windham store had a particular policy as to this material
fact, even though she acknowledged that "there should have been
- 32 -
The record as a whole inures to Benson's benefit, helping
her point out the "implausibilities, inconsistencies,
incoherencies, or contradictions," Billings, 515 F.3d 55, in
Wal-Mart's proffered reason for her termination. It is impossible
to unequivocally conclude that Wal-Mart internally established
that Benson in fact exceeded the store's allowed number of
authorized absences, which casts enough doubt in Benson's favor.
Viewing all of these facts in the light most favorable
to Benson, the record contains enough to generate genuine issues
of material fact insofar as the reason proffered for Benson's
termination being pretextual. This is all Benson needs at this
3. Inapplicability of Maine Caselaw Precedent: Carnicella
As a final matter, we differ from the district court's
reliance on Carnicella v. Mercy Hosp., 168 A.3d 768 (Me. 2017).
In Carnicella, the plaintiff had explicitly requested leave and
further extensions to said leave as a means to recover from an
injury before returning to work. The Maine Law Court held that
the only accommodation requested in Carnicella, leave of absence,
was unreasonable as a matter of law because, at the time, the MHRA
contemplated a defense that an employer could discharge an employee
with disabilities who could not perform the duties of the
- 33 -
employment. Carnicella, 168 A.3d at 774.10 As a result, this
rendered any additional leave as an unreasonable accommodation
under Maine law.
In this case, there are genuine issues of material facts
as to whether Benson, who had a disability and requested a
reasonable accommodation for it, could indeed perform the duties
of her job. Thus, the statutory defense invoked in Carnicella, at
this stage of the proceedings, is inapplicable. Moreover, if these
factual disputes were to be resolved in Benson's favor, then the
record shows that she understood what an authorized leave of
absence implied because she had requested the same before returning
to work on October 2016. On this occasion, she knowingly did not
10 The MHRA was amended in 2019 to add "leaves of absence" to
the list of accommodations in the statutory definition of
"reasonable accommodation." 2019 Me. Legis. Serv. Ch. 464 (H.P.
1216) (L.D. 1701) (WEST). Although this amendment became law after
the present case was filed, it bears no weight in our analysis.
Following the fundamental rule of statutory construction, the
Maine Law Court has held that "all statutes will be considered to
have a prospective operation only, unless the legislative intent
to the contrary is clearly expressed or necessarily implied from
the language used." Morrill v. Me. Tpk. Auth., 983 A.2d 1065,
1067 (Me. 2009) (citing Terry v. St. Regis Paper Co., 459 A.2d
1106, 1109 (Me. 1983)). Similarly, the Supreme Court has held
that "[e]lementary considerations of fairness dictate that
individuals should have an opportunity to know what the law is and
to conform their conduct accordingly" and thus "'the principle
that the legal effect of conduct should ordinarily be assessed
under the law that existed when the conduct took place has timeless
and universal appeal.'" Landgraf v. USI Film Products, 511 U.S.
244, 265 (1994) (citing Kaiser Aluminum & Chem. Corp. v. Bonjorno,
494 U.S. 827, 855 (1990) (Scalia, J., concurring)). Neither of
the exceptions detailed by the Maine Law Court are present here.
- 34 -
request leave, as defined under the Attendance Policy, in relation
to her workers' compensation injury. Her reasonable
accommodation, as explained above, was not for a request of
"intermittent leave" as Wal-Mart advanced. The record does not
contain evidence that Benson ever made such a request as Wal-Mart
so characterized.11
B. Retaliation
Under both MHRA and MWPA, Benson has to establish that:
(1) she engaged in protected activity; (2) she suffered a
materially adverse action or was adversely affected, and (3) there
was a causal connection between the protected activity and the
adverse action. See Brady v. Cumberland Cty., 126 A.3d 1145,
1150-51 (Me. 2015); Ramsdell v. Huhtamaki, Inc., 992 F. Supp. 2d
1, 20 (D. Me. 2014). When reviewing Maine MWPA claims, we
"collapse the more intricate McDonnell Douglas framework and, in
a seamless inquiry, 'recognize any evidence that the employer had
a lawful reason for the adverse action taken against the employee,
and any evidence that the proffered reason is merely a pretext.'"
11 We note that it seems contradictory that Wal-Mart on the
one hand argues that Benson was required to make a "direct and
specific" request for leave of absence to comply with the
Attendance Policy, yet also averred before the courts that leave
of absence was not a "reasonable accommodation" under Maine law.
We disavow Wal-Mart's "attempt[] to eat [its] cake and have it,
too." State St. Bank & Tr. Co. v. United States, 313 F.2d 29, 31
(1st Cir. 1963).
- 35 -
Theriault v. Genesis HealthCare LLC, 890 F.3d 342, 350 (1st Cir.
2018) (quoting Brady, 126 A.3d at 1157-58).
The case law and the parties agree that the causation
element is the center of the dispute. Under the Maine-specific
causation paradigm, "[t]o demonstrate a causal link sufficient to
defeat a summary judgment motion" on a retaliation claim, Benson
must make a sufficient evidentiary showing that her protected
activity "was a substantial, even though perhaps not the only,
factor motivating her dismissal." Id. at 349; see also Caruso v.
Jackson Lab., 98 A.3d 221, 226 (Me. 2014).
As previously discussed, in this case, the district
court concluded that none of the actions Benson raised, if
considered as protected activity, were causally connected to her
termination. Benson II, 2020 WL 1669851, at *7-8. We disagree
and hold that the facts viewed in the light most favorable to
Benson could lead a reasonable factfinder to conclude that Benson's
first employment discrimination lawsuit, the January 20 e-mail
complaining of harassment, and her late January request for a
reasonable accommodation of a modified schedule could have been
"substantial" factors motivating her dismissal.
When we view the facts and inferences in the light most
favorable to Benson's legal theory, several facts line up in her
favor. First, the timing of the January e-mail and request for a
modified schedule does not fare well for Wal-Mart. As Benson tells
- 36 -
it, Bradstreet screams at her for missing work in mid-January,
Benson complains of this harassment and requests a modified
schedule in the weeks after that, and then, by mid-February, she
is fired. On its own, the temporal proximity between the January
e-mail and accommodation request and Benson's February 18
termination is sufficient to make out a prima facie case, but the
inference is even stronger alongside HR Manager Gottwald's
complete inaction in response to Benson's harassment claim. See
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)
(explaining that "temporal proximity must be 'very close' to
satisfy evidence of causality in prima facie case of retaliation);
Soileau v. Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997)
(noting "the larger sequence of events" for the causation element).
Rather than initiate some sort of investigation as required by
Wal-Mart protocols, Gottwald elected not to act, even in the face
of Bradstreet, the alleged harasser, attempting to fire Benson,
her alleged victim.
Benson's first lawsuit, filed nearly one year prior to her
termination, may be too remote to demonstrate any causation, but
the inference from the January events is too strong to ignore,
especially when dealing with as low a bar as a prima facie case.
These pieces together are enough for Benson to make out a prima
facie case. See Soileau, 105 F.3d at 16; accord Oliver v. Digital
- 37 -
Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988) (considering the
entire sequence of events for causation questions).
The January 20 e-mail is also critical. The district court
relied on Pomales v. Celulares Telefónica, Inc., 447 F.3d 79 (1st
Cir. 2006), to support its reasoning that because the
decisionmaker, Manager Bradstreet, was unaware of the e-mail, it
could not be considered as the "but-for" cause of Benson's firing.
The record, however, contains evidence indicating Bradstreet was
not the only decisionmaker in Benson's termination process.
Manager Bradstreet consulted HR Manager Gottwald, one of the
recipients of the January 20 e-mail that complained about
harassment.12 HR Manager Gottwald recommended the matter be
referred to Wal-Mart's legal team, who, according to HR Manager
Gottwald, ultimately made the final decision to terminate Benson.
In short, whether or not Bradstreet knew of the contents of the
e-mail is not fatal to Benson at this stage.
12 Benson testified that she included HR Manager Gottwald on
the e-mail complaining about Manager Bradstreet. Though Gottwald
could not recall whether he had received the e-mail, Benson
testified that she had sent it to him. Whether HR Manager Gottwald
read the e-mail or not is a matter of credibility best suited for
a jury. See Ahmed v. Johnson, 752 F.3d 490, 502 (1st Cir. 2014)
("Determining which view more accurately reflects reality requires
factfinding and credibility judgments that are properly the task
of a jury."); United States v. Sepúlveda-Hernández, 752 F.3d 22,
30 (1st Cir. 2014) ("[I]t is the jury's role—not the role of an
appellate court—to determine the weight to be given to a witness's
testimony and to assess the witness's credibility.").
- 38 -
With the prima facie case in Benson's favor, we move on to
the legitimate non-discriminatory reason and pretext aspects of
the claim. Because we have already concluded that Benson can
sustain an argument that Wal-Mart's proffered reason for her
termination was pretextual, we need not go any further.

Outcome: For the foregoing reasons, we reverse the district
court's judgment entered on April 3, 2020, and remand for further
proceedings consistent with this opinion. Costs awarded to Benson.

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