United States District Court, D. New Hampshire
LANDYA McCAFFERTY, District Judge.
Nicole Lang was formerly employed at a distribution center owned by Wal-Mart Stores East, L.P. ("Walmart") located in Raymond, New Hampshire. After Walmart terminated Ms. Lang's employment, Ms. Lang brought this lawsuit, asserting claims for unlawful discrimination under Title I of the Americans with Disabilities Act, 42 U.S.C. § 12111 et seq. ("Title I"),  and the New Hampshire Law Against Discrimination, N.H. Rev. Stat. Ann. § 354-A:7 ("NHLAD"), as well as a claim for wrongful discharge under New Hampshire common law. Walmart has moved for summary judgment on all three counts pursuant to Federal Rule of Civil Procedure 56, and the court heard oral argument on February 19, 2015. For the reasons that follow, the court grants Walmart's motion for summary judgment.
The facts are summarized principally from the complaint and from Walmart's statement of material facts ("SMF") offered in support of its motion for summary judgment (doc. no. 20-17). These facts are not in dispute unless noted.
In 2009, Walmart hired Ms. Lang to work as an order filler at its Raymond, New Hampshire, distribution center. SMF ¶ 1. In 2010, Ms. Lang requested and received a transfer to the position of unloader. Id . ¶ 2. As an unloader, Ms. Lang was responsible for unloading merchandise from tractor trailer trucks by hand and with the use of a forklift. Id . ¶¶ 3-4.
Certain trucks could be unloaded with the assistance of a forklift, but others, including trucks that were "reserved by data" ("RBD"), needed to be unloaded by hand. Id . ¶¶ 10-11. RBD trucks were stacked from floor to ceiling with merchandise, and thus could not be unloaded using a forklift. Id . Because much of the merchandise needed to be offloaded by hand, Walmart listed the ability to "move, lift, carr[y], and place merchandise and supplies weighing up to 60 pounds without assistance" as an essential function of an unloader. Id . ¶ 17.
In October 2010, Ms. Lang informed her supervisor, Brian Hug, that she was pregnant. Id . ¶ 20. Ms. Lang informed Mr. Hug that her doctor had suggested that she not lift items weighing more than 25 pounds, but Ms. Lang did not ask for an accommodation and continued to perform her regular duties. Id . ¶¶ 22-24. Ms. Lang alleges that after she told Mr. Hug about her pregnancy she was assigned a disproportionate number of RBD trucks. Compl. ¶ 20. However, Walmart maintains that trucks are assigned to unloaders at random. SMF ¶ 18.
On November 7, 2010, Ms. Lang was unloading an RBD truck when she pulled a muscle in her groin. Id . ¶ 25. She visited the first aid station, then was driven home by a member of Walmart's human resources department. Id . ¶ 26. Ms. Lang was out of work for approximately two weeks. Id . ¶ 27. Upon her return, Ms. Lang filed paperwork from her doctor indicating that she could not lift more than 20 pounds, and requesting that Walmart accommodate her pregnancy by either assigning her only trailers that did not need to be offloaded by hand, or by transferring her to a different position that would not require heavy lifting. Id . ¶¶ 27-29.
On December 10, 2010, Walmart sent a letter to Ms. Lang denying her request for an accommodation on grounds that Ms. Lang's pregnancy was a "temporary" condition. Id . ¶ 31. Ms. Lang alleges, however, that she is aware of at least three other Walmart employees who became pregnant and who were given alternative working arrangements to avoid assignments that involved heavy lifting. See Pl's Objection to Def.'s Mot. for Summ. J. 11 (doc. no. 23-1). Shortly after Walmart denied her request for an accommodation, Ms. Lang filed a complaint with the New Hampshire Commission for Human Rights ("Commission for Human Rights"), alleging that Walmart had discriminated against her on the basis of her pregnancy and had failed to provide her with a reasonable accommodation. SMF ¶ 33.
Her request for an accommodation having been denied, Ms. Lang applied for and was granted a leave of absence under the Family and Medical Leave Act ("FMLA"). Id . ¶ 32. In December 2010, Ms. Lang applied for an extension of her FMLA leave of absence. Id . ¶ 34. Even though Ms. Lang had exhausted her FMLA leave entitlement, Walmart granted this request and extended Ms. Lang's leave of absence through June 18, 2011. Id.
Ms. Lang gave birth to her son in June 2011 and then took approximately six weeks of maternity leave. Id . ¶ 35. She returned to work in July 2011 and was assigned to work as an FID processor. Id . ¶ 36. In this capacity, Ms. Lang was required to use a forklift to transport merchandise and to scan and label boxes before placing them on a conveyor belt. Id . ¶ 37. In an affidavit that accompanied her objection to the motion for summary judgment, Ms. Lang stated that she felt "targeted" after returning from maternity leave. See Aff. of Nicole R. Lang ("Lang Aff.") ¶ 15 (doc. no. 23-2). As examples, Ms. Lang cites delays in approving her requests for breaks to use her breast pump and states that several of her supervisors were "watching" her. Id.
Ms. Lang injured her right arm while at work in November 2011. SMF ¶ 38. Walmart placed Ms. Lang on "temporary alternative duty" for 90 days, meaning that she continued to work, but performed light tasks such as dusting. Id . ¶ 39. Because Ms. Lang continued to experience pain in her arm, Walmart gave her a second temporary alternative duty assignment, which consisted of sorting labels. Id . ¶¶ 40-41.
On February 17, 2012, Ms. Lang requested a two-week leave of absence. Id . ¶ 42. At approximately the same time, Ms. Lang's husband, who also worked at the Walmart distribution center, filed a request to be transferred to a Walmart facility in Florida. Id . ¶ 43. Walmart granted Ms. Lang's request for leave, and her husband's transfer request, and the family moved to Florida. Id . ¶¶ 44-45.
Pursuant to Walmart's leave of absence policy, Ms. Lang was informed that she would only be eligible for continued leave if she provided the requisite medical certifications. Id . ¶¶ 46-47. During the spring and summer of 2012, Ms. Lang failed to provide these certifications and explained to Walmart personnel that she could not find a doctor in Florida who would treat her and fill out the required paperwork. Id . ¶¶ 49-52. In her affidavit, Ms. Lang states that, in response, a Walmart human resources employee "laughed at [her]" and stated that Ms. Lang had "put [herself] in a bad position." Lang Aff. ¶ 24.
Walmart sent Ms. Lang a letter on August 16, 2012, informing her that Walmart would be forced to process her resignation unless she submitted the certification showing her continued need for medical leave. SMF ¶ 53. When Ms. Lang failed to do so, Walmart ...