370 F.Supp.2d 323 (2005) | Cited 1 time | D. Maine | April 4, 2005


The United States District Court for the District of Mainefinds that this case involves questions of law of the state ofMaine that may be determinative of the cause and that there areno clear controlling precedents thereon in the decisions of theSupreme Judicial Court of Maine sitting as the Law Court.

Accordingly, this court hereby CERTIFIES these questions tothe Supreme Judicial Court of Maine sitting as the Law Court andrespectfully requests the Law Court to provide instructionsconcerning such questions of state law pursuant to4 M.R.S.A. § 57, as amended, and Rule 25 of the Maine Rules of AppellateProcedure.


In this case Stanley Whitney sued Wal-Mart in state court foralleged disability and age discrimination in employment and breach ofcontract. Whitney's second amended complaint seeks relief fordiscrimination exclusively under the Maine Human Rights Act. Ittherefore does not raise a federal question under either theAmericans with Disabilities Act or the Age Discrimination inEmployment Act. Wal-Mart removed the case to this federal courtbased on diversity of citizenship.

In connection with the summary judgment motion filed byWal-Mart, which completely resolved all age discrimination andbreach of contract claims, the following undisputed facts emergedin connection with Whitney's disability claim.


Stanley Whitney was first hired by Wal-Mart on July 31, 1998,as a pricing coordinator and back-up grocery DSD receiver inMelbourne, Florida. Wal-Mart promoted Whitney in February 1999 tobe a manager of the sporting goods department of the Melbournestore. Whitney held this position for approximately one yearbefore Wal-Mart transferred him in February 2000 to be thegrocery manager at its store in Indian Harbor Beach, Florida.Whitney worked as grocery manager at this location forapproximately 8-10 months. Thereafter, in August 2000, Wal-Martbegan training Whitney to become a manager in a tire-lube express("TLE") department. Between August 2000 and April 2001, Whitneyworked as a TLE management trainee at two separate stores, WestMelbourne and Merritt Island, Florida. In April 2001, Wal-Martpromoted Whitney to TLE Manager for its Orlando store. With this promotion, Whitneyjoined the ranks of Wal-Mart's salaried management-levelemployees, earning $28,500 annually. Whitney continued in thisposition for three months, working 9 hours per day, 5 days perweek, with weekends off.

Whitney decided to leave his position as the TLE Manager inOrlando and accept a demotion in order to return to an hourlyassociate position at the Merritt Island, Florida, store at theend of June 2001 because he no longer wanted to commute the 70-80miles to Orlando from his residence on the east coast of Florida.The demotion lost Whitney his salary and his hourly pay rate wasset at $10. During a summer vacation in southern Maine in 2001,Whitney learned that Wal-Mart's North Windham store was seeking aTLE Manager. Whitney met the TLE Manager for the district,Michael Swink, expressed an interest in working as the TLEManager in North Windham, and, approximately two weeks later,Swink offered Whitney the position and a salary of $29,512.Whitney accepted and began working in the North Windham locationon October 6, 2001. After starting in North Windham, Whitneyworked on average 6 days per week and in excess of 70 hours perweek.

Within just over a month, on November 15, 2001, Whitney'shealth began to deteriorate and Whitney went under a doctor'scare following a diagnosis of high blood pressure and possiblyserious heart disease. Whitney brought the matter to Wal-Mart'sattention with a doctor's note and took a little time off, working only three more days in November. Following visits withhis physician's assistant in early December 2001, Whitney was"taken out of work" by his care provider, for reasons related tohis heart condition, until he could undergo further testingscheduled for January 2002. Whitney duly completed leave ofabsence paperwork and submitted it to Wal-Mart. According toWhitney, Swink was displeased with Whitney's request for leaveand told Whitney that "this could cost you your job." However,Brett Walters, North Windham's store manager, approved Whitney'srequest for leave for the dates between November 11, 2001, andJanuary 9, 2002. Whitney subsequently requested an extension tohis leave so that he could undergo further testing and Waltersapproved it, "without comment or hassle."

Whitney remained out of work until January 28, 2002. Hereturned to work with a "To Whom It May Concern" note from hisphysician's assistant that "allowed" Whitney to return to workfor no more than 8 hours per day and 40 hours per week with twoconsecutive days off. On February 1, 2002, Whitney had atelephone conversation with Michael Swink, the district TLEmanager, who advised Whitney that Swink and Walters had decidedthat in order for Whitney to return to work as the TLE Manager,he had to be able to work 48-52 hours per week. On February 8,2002, Whitney and Swink spoke again and Swink indicated that ifWhitney could not work 48-52 hours per week, Swink would assisthim in locating alternative employment at Wal-Mart. On February 13, 2002, Whitney brought up the work-hourrequirement articulated by Swink during an "open door" meetingwith Kevin Robinson, the district manager, and Hope Gauer, thedistrict assistant. The situation was discussed and it wasconcluded that Whitney's condition would not prevent him frombecoming a non-salaried department manager and receiving $11 perhour in another position. Whitney did not contend at the meetingthat he felt he was being discriminated against. Nor did herequest that the TLE Manager job be modified to allow him to work8 hours per day, 5 days per week with 2 consecutive days off.Subsequently, on or about February 15, Gauer notified Whitneythat several manager positions were available in Wal-Mart'sBiddeford store. Whitney looked into it and notified Gauer thathe was interested in three manager positions, in the followingorder of preference: one in the paper goods and chemicaldepartment, one in the pet department and one in "Department 82."Gauer arranged for Whitney to interview with Andre Pepin, thenassistant manager of the Biddeford store. Whitney did so but didnot receive any of the positions. On February 26, 2002, Whitney'sattorney wrote to Swink and other Wal-Mart executives complainingthat Whitney had been forced out of his job as TLE Manager inviolation of laws forbidding discrimination against persons withdisabilities. On February 28, 2002, Swink wrote a letter toWhitney advising him that his 12-week medical leave of absencehad ended on February 27, 2002, and that because he was onlypermitted to work 40 hours per week with 2 consecutive days off, he did not meet the requirements to return to his jobas TLE Manager in North Windham. Swink also advised Whitney inthe letter that if he could not work the required hours andschedule, "Wal-Mart will help to reasonably accommodate you inhelping find you another position within the company."

In response, Whitney sent a letter to Swink and enclosed a newnote from his physician's assistant that loosened Whitney's workrestrictions to 9 hours per day with two consecutive days off. Inhis letter, Whitney asked Swink to accommodate his medicalrestrictions by permitting him to work no more than 45 hours perweek. He also asserted in his letter that, in his experience, TLEManagers can, with a few exceptions, complete their job duties in40-45 hours per week. Because Whitney was able and willing towork 40-45 hours per week, Swink never considered Whitney to besubstantially limited in a major life activity. Whitney concedesthis point, acknowledging that Swink did not perceive any need totalk to Whitney about a reasonable accommodation because Swinkdid not view Whitney as substantially limited in a major lifeactivity.

On March 14, 2002, Whitney remained out of work but was stillbeing paid his regular salary as the TLE Manager at the NorthWindham Wal-Mart. On March 15, 2002, Swink telephoned Whitney toadvise Whitney of a job opening in Wal-Mart's Falmouth store.Swink refused to talk to Whitney further about the TLE positionin North Windham and Whitney did not make any effort to callSwink's supervisor to bring that to his attention. Whitney wasoffered a position as Inventory Control Specialist (ICS) at the Biddeford storebecause it met his medical restrictions, including therecommendation that Whitney have two consecutive days off.Whitney accepted the ICS position. According to Whitney, heaccepted the ICS position reluctantly, because it was the onlyposition discussed at the March 22 meeting that was within hismedical restrictions.

On April 4, 2002, two DSD grocery receiver positions wereposted in Wal-Mart's Biddeford store. Whitney applied for bothand Vaillancourt and Pepin met with Whitney to discuss hisinterest in the positions. According to Whitney, around May 4,2002, Assistant Manager Pepin informed him that he would receiveone of the jobs because he was the most qualified candidate.Whitney then reminded Pepin about his work restriction and Pepinindicated he would have to check with Vaillancourt sincereceivers normally take Wednesdays and Sundays off. At Whitney'sMay 2002 meeting with Vaillancourt and Pepin, Vaillancourtindicated that two consecutive days off would not work with theDSD receiver positions. It was Vaillancourt's decision to makeand he did not hire Whitney. The fact that Whitney required twoconsecutive days off was a factor in Vaillancourt's decision topass him over for the receiver positions.

During Whitney's tenure at the Biddeford store, a new storemanager took over and invited Whitney to go into a departmentmanager training program. Whitney indicated that he wasinterested, but also stated that he would prefer to pursue anysuch opportunities in the Scarborough or Falmouth stores, whichare closer to his home. This was arranged and in July 2003 Whitneytransferred from the Biddeford store to Wal-Mart's Scarboroughstore, taking a position on the ICS team there. While atScarborough, the store manager there told Whitney to apply fortwo department manager positions (one in grocery and one inDepartment 82). Whitney did so and was hired to be manager ofDepartment 82, where he continues to work to this day, despitehis work restrictions. Whitney is not a salaried manager there,but currently earns $12.40 per hour.


Whitney brings this action under the Maine Human Rights Act,5 M.R.S.A. § 4551, et seq. Whitney contends that the statestatutory definition of "physical or mental disability" found at5 M.R.S.A. § 4533(7-A) does not require the plaintiff to make ashowing of a substantial limitation on a major life activity inorder to be entitled to relief under the Act. He also maintainsthat the Maine Human Rights Commission Employment Regulation §3.02(C)(1), which interprets the Maine Human Rights Act bysupplementing the statutory definition with a requirement that aplaintiff demonstrate a substantial limitation on a major lifeactivity before he or she obtains relief under the Act is aninvalid regulation. Wal-Mart contends that the regulation isvalid and that even in the absence of such a regulation, theMaine Human Rights Act, should be construed consistently with theADA provision that qualifies the term "disability" to includeonly those disabilities or impairments that "substantially limit . . . major lifeactivities." 42 U.S.C. § 12102(2)(A).

If the Maine statutory provision requires a showing thatplaintiff is substantially limited in a major life activity or ifthe regulation promulgated by the Maine Human Rights Commissionis valid, this court will grant summary judgment to Wal-Mart onthe undisputed facts. Thus the contentions of Wal-Mart, ifcorrect, would be dispositive of the entire action.

In order for this court to adjudicate the motion for summaryjudgment now pending before it, the following questions of Mainelaw must be answered:

1. Does the Maine Human Rights Act definition of "physical ormental disability" found at 5 M.R.S.A. § 4553(7-A) require ashowing of a substantial limitation on a major life activity asdoes its federal analogue, 42 U.S.C. § 12102(2)(A)?

2. Is Section 3.02(C) of the regulations adopted by the MaineHuman Rights Commission, defining a "physical or mentalimpairment," invalid because it requires a showing of asubstantial limitation on a major life activity?

In accordance with Maine Rules of Appellate Procedure 25(b),the court respectfully suggests to the Supreme Judicial Court ofMaine sitting as the Law Court that the plaintiff be treated asthe appellant before that Court. SO ORDERED.

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