The federal appeals court that covers Oklahoma recently ruled in favor of Walmart in a lawsuit filed by a disabled former employee.

Disabled maintenance employee terminated after refusing to clean restrooms

Simone Mielnicki was a 60-year-old maintenance employee who worked at Walmart in Parker, Colorado.  According to the lawsuit, Mielnicki had a developmental disability that caused her to have the mental capacity of a 13-year-old. Mielnicki was employed at Walmart for 14 years, first as a shopping cart attendant and later as a maintenance associate.  Her job duties as a maintenance associate included providing assistance throughout the store, moving items to the front of shelves, sweeping and mopping, and handling spills.

The job description of a maintenance associate also stated that one of the essential functions of the job is cleaning the restrooms. For years, however, Mielnicki refused to clean the restrooms due to a fear of being attacked in the men’s room.  Her refusal was not an issue until the other maintenance associate left the job, necessitating the need for Mielnicki to perform this duty.  Despite her doctor and family intervening to explain her disability, Walmart placed Mielnicki on leave of absence, pending job reassignment if another job position at Walmart became available.  During that time, Mielnicki found alternate employment, and Walmart then formally terminated her from her position.

Mielnicki then filed a lawsuit in federal court in Colorado, making claims under the Americans with Disabilities Act (ADA), among others.  In its defense, Walmart argued that cleaning the restrooms was an essential function of being a maintenance associate – an essential function Mielnicki could not perform, with or without reasonable accommodation – and therefore, summary judgment should be granted in its favor.  The Colorado court agreed, granting the retailer’s motion for summary judgment.  On appeal, the Tenth Circuit affirmed the district court’s ruling.

Tenth Circuit upholds lower court’s ruling

To make a case under the Americans with Disabilities Act, Mielnicki was required to show: (1) she was a disabled person; (2) she was qualified to perform the essential functions of her job with or without a reasonable accommodation; and (3) she was fired because of her disability.  The Tenth Circuit’s analysis revolved around the second element.

Mielnicki and her attorneys admitted that cleaning the restrooms was an essential function of being a maintenance employee at Walmart and that she was unable to perform that function.  However, they argued that the district court should not have granted Walmart’s motion for summary judgment because Mielnicki had been a maintenance associate for years and had performed other tasks that did not involve cleaning the restrooms.

The Tenth Circuit disagreed, stating that even though Walmart did not require Mielnicki to clean the restrooms in the past, that did not negate the fact that cleaning restrooms was still an essential function of her job.  The Tenth Circuit reasoned that during those years, Walmart excused her from performing one of the essential functions of her job, even though the company was not required to do so under the ADA.  Once one of the other maintenance employees departed, it became a business necessity that Mielnicki begin cleaning restrooms.

The takeaway

It’s important to remember that under the ADA, employers must accommodate disabled employees who are able to perform the essential functions of the job.  However, as the Tenth Circuit reminded us in this opinion, an employer that then goes beyond the requirements of the ADA to allow an employee to not perform all the essential functions of the job is not then estopped from demanding that the employee later perform all the essential functions required of that job.

Despite this ruling, employers should remember what is required of them under the ADA.  Employers should never hesitate to contact an employment attorney if issues arise regarding the accommodation of a disability.

• Simone Mielnicki v. Wal-Mart Stores, Inc., No. 17-1396, 2018 WL 3046468, at *1 (10th Cir. June 20, 2018)