IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MISSOURI WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

WAL-MART STORES, INC.,

)

)

Defendant.

)

Civ. Action No. 04-0076-cv-w-GAF JURY TRIAL DEMAND

COMPLAINT NATURE OF THE ACTION This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Steven J. Bradley, Jr., a job applicant who was adversely affected by such practices. The Commission alleges that Wal-Mart Stores, Inc. failed to hire Steven J. Bradley, Jr. because of his disability, cerebral palsy, which substantially limits his ability to walk and requires him to use crutches or a wheelchair. JURISDICTION AND VENUE 1. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12117(a), which incorporates by reference Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5(f)(1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Western District of Missouri, Western Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (“the Commission”), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5 (f)(1). 4. At all relevant times, Defendant Wal-Mart Stores, Inc. has continuously been a Delaware Corporation doing business in the State of Missouri and has continuously had at least fifteen (15) employees. 5. At all relevant times, Wal-Mart Stores, Inc. has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C. § 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e (g) and (h). 6. At all relevant times, Wal-Mart Stores, Inc. has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Steven J. Bradley, Jr. filed a charge with the Commission alleging violations of Title I of the ADA by Wal-Mart Stores, Inc. All conditions precedent to the institution of this lawsuit have been fulfilled.
2

8. On or about April 2001, Wal-Mart Stores, Inc. engaged in unlawful employment practices at its Richmond, Missouri store in violation of Section 102(a) and (b) of Title I of the ADA, 42 U.S.C. § 12112(a) and (b). Specifically, Wal-Mart Stores, Inc. refused to hire Steven J. Bradley, Jr. for any position because of his disability, cerebral palsy, which substantially limits his ability to walk and requires him to use crutches or a wheelchair.
9. The effect of the practices complained of in paragraph 8 above by Wal-Mart Stores, Inc. has been to deprive Steven J. Bradley, Jr. of equal employment opportunities and otherwise adversely affect his status as a job applicant because of his disability.
10. The unlawful employment practices complained of in paragraph 8 above by WalMart Stores, Inc. were intentional.
11. The unlawful employment practices complained of in paragraph 8 above by WalMart Stores, Inc. were done with malice or with reckless indifference to the federally protected rights of Steven J. Bradley, Jr.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Wal-Mart Stores, Inc., its officers, successors, assigns, and all persons in active concert or participation with it, from refusing to hire qualified individuals with disabilities because of their disabilities or engaging in any other employment practice which discriminates on the basis of disability; B. Order Wal-Mart Stores, Inc. to institute and carry out policies, practices, and programs that provide equal employment opportunities for qualified individuals with disabilities, and that eradicate the effects of its past and present unlawful employment practices;
3

C. Order Wal-Mart Stores, Inc. to make Steven J. Bradley, Jr. whole, by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to the rightful-place hiring of Steven J. Bradley, Jr.;
D. Order Wal-Mart Stores, Inc. to make whole Steven J. Bradley, Jr. by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 8 and 9 above, including job search expenses, in amounts to be determined at trial;
E. Order Wal-Mart Stores, Inc. to make whole Steven J. Bradley, Jr. by providing compensation for past and future nonpecuniary losses resulting from the unlawful employment practices described in paragraphs 8 and 9 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial;
F. Order Wal-Mart Stores, Inc. to pay Steven J. Bradley, Jr. punitive damages for its malicious and reckless conduct, as described in paragraphs 8 and 9 above, in amounts to be determined at trial;
G. Grant such further relief as the Court deems necessary and proper in the public interest;
H. Award the Commission its costs of this action.
4

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by this complaint.

Respectfully submitted,

ERIC S. DREIBAND General Counsel

JAMES L. LEE Deputy General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel

/s/ Robert G. Johnson ROBERT G. JOHNSON Regional Attorney

/s/ Donna L. Harper DONNA L. HARPER Supervisory Trial Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce St., Room 8.100 St. Louis, MO 63103 (314) 539-7914 FAX: (314) 539-7895 e-mail: bob.johnson@eeoc.gov
donna.harper@eeoc.gov

/s/ Andrea G. Baran

ANDREA G. BARAN

MO #46520

Senior Trial Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Kansas City Area Office

400 State Avenue, Suite 905

Kansas City, KS 66101

(913) 551-5848

FAX: (913) 551-6957

e-mail: andrea.baran@eeoc.gov

5

6

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

WAL-MART STORES, INC.,

)

)

Defendant.

)

Civ. Action No. 04-0076-cv-w-GAF JURY TRIAL DEMAND

SECOND AMENDED COMPLAINT NATURE OF THE ACTION
This is an action under Title I of the Americans with Disabilities Act of 1990 and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of disability and to provide appropriate relief to Steve E. Bradley, Jr., a job applicant who was adversely affected by such practices. The Commission alleges that Wal-Mart Stores, Inc. failed to hire Steve E. Bradley, Jr. because of his disability, cerebral palsy, which substantially limits his ability to walk and stand and requires him to use crutches or a wheelchair.
JURISDICTION AND VENUE 1. The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 451, 1331, 1337, 1343 and 1345. This action is authorized and instituted pursuant to Section 107(a) of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12117(a), which incorporates by reference Section 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-5(f)(1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981a.

2. The employment practices alleged to be unlawful were committed within the jurisdiction of the United States District Court for the Western District of Missouri, Western Division.
PARTIES 3. Plaintiff, the Equal Employment Opportunity Commission (“the Commission”), is the agency of the United States of America charged with the administration, interpretation and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Sections 706(f)(1) and (3) of Title VII, 42 U.S.C. § 2000e-5 (f)(1). 4. At all relevant times, Defendant Wal-Mart Stores, Inc. has continuously been a Delaware Corporation doing business in the State of Missouri and has continuously had at least fifteen (15) employees. 5. At all relevant times, Wal-Mart Stores, Inc. has continuously been an employer engaged in an industry affecting commerce under Section 101(5) of the ADA, 42 U.S.C. § 12111(5), and Section 101(7) of the ADA, 42 U.S.C. § 12111(7), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e (g) and (h). 6. At all relevant times, Wal-Mart Stores, Inc. has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. § 12111(2).
STATEMENT OF CLAIMS 7. More than thirty days prior to the institution of this lawsuit, Steve E. Bradley, Jr. filed a charge with the Commission alleging violations of Title I of the ADA by Wal-Mart Stores, Inc. All conditions precedent to the institution of this lawsuit have been fulfilled.
2

8. On or about April 2001, Wal-Mart Stores, Inc. engaged in unlawful employment practices at its Richmond, Missouri store in violation of Section 102(a) and (b) of Title I of the ADA, 42 U.S.C. § 12112(a) and (b). Specifically, Wal-Mart Stores, Inc. refused to hire Steve E. Bradley, Jr. for any position because of his disability, cerebral palsy, which substantially limits his ability to walk and stand and requires him to use crutches or a wheelchair.
9. The effect of the practices complained of in paragraph 8 above by Wal-Mart Stores, Inc. has been to deprive Steve E. Bradley, Jr. of equal employment opportunities and otherwise adversely affect his status as a job applicant because of his disability.
10. The unlawful employment practices complained of in paragraph 8 above by WalMart Stores, Inc. were intentional.
11. The unlawful employment practices complained of in paragraph 8 above by WalMart Stores, Inc. were done with malice or with reckless indifference to the federally protected rights of Steve E. Bradley, Jr.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully requests that this Court: A. Grant a permanent injunction enjoining Wal-Mart Stores, Inc., its officers, successors, assigns, and all persons in active concert or participation with it, from refusing to hire qualified individuals with disabilities because of their disabilities or engaging in any other employment practice which discriminates on the basis of disability; B. Order Wal-Mart Stores, Inc. to institute and carry out policies, practices, and programs that provide equal employment opportunities for qualified individuals with disabilities, and that eradicate the effects of its past and present unlawful employment practices;
3

C. Order Wal-Mart Stores, Inc. to make Steve E. Bradley, Jr. whole, by providing appropriate backpay with prejudgment interest, in amounts to be determined at trial, and other affirmative relief necessary to eradicate the effects of its unlawful employment practices, including but not limited to the rightful-place hiring of Steve E. Bradley, Jr.;
D. Order Wal-Mart Stores, Inc. to make whole Steve E. Bradley, Jr. by providing compensation for past and future pecuniary losses resulting from the unlawful employment practices described in paragraphs 8 and 9 above, including job search expenses, in amounts to be determined at trial;
E. Order Wal-Mart Stores, Inc. to make whole Steve E. Bradley, Jr. by providing compensation for past and future nonpecuniary losses resulting from the unlawful employment practices described in paragraphs 8 and 9 above, including emotional pain, suffering, inconvenience, loss of enjoyment of life, and humiliation, in amounts to be determined at trial;
F. Order Wal-Mart Stores, Inc. to pay Steve E. Bradley, Jr. punitive damages for its malicious and reckless conduct, as described in paragraphs 8 and 9 above, in amounts to be determined at trial;
G. Grant such further relief as the Court deems necessary and proper in the public interest;
H. Award the Commission its costs of this action.
4

JURY TRIAL DEMAND

The Commission requests a jury trial on all questions of fact raised by this complaint.

Respectfully submitted,

ERIC S. DREIBAND General Counsel

JAMES L. LEE Deputy General Counsel

GWENDOLYN YOUNG REAMS Associate General Counsel

/s/ Robert G. Johnson ROBERT G. JOHNSON Regional Attorney

/s/ Donna L. Harper DONNA L. HARPER Supervisory Trial Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce St., Room 8.100 St. Louis, MO 63103 (314) 539-7914 FAX: (314) 539-7895 e-mail: bob.johnson@eeoc.gov
donna.harper@eeoc.gov

/s/ Andrea G. Baran

ANDREA G. BARAN

MO #46520

Senior Trial Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Kansas City Area Office

400 State Avenue, Suite 905

Kansas City, KS 66101

(913) 551-5848

FAX: (913) 551-6957

e-mail: andrea.baran@eeoc.gov

5

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

Plaintiff,

)

)

vs.

)

Case No. 04-00076-CV-W-GAF

)

WAL-MART STORES, INC.,

)

)

Defendant.

)

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF EEOC’S MOTION FOR PROTECTIVE ORDER
FOR JUNE 14, 2004 DEPOSITIONS

Now pending before the Court is Plaintiff EEOC’s Motion for Protective Order for June 14,

2004 Depositions. The Court having considered said motion and Defendant’s Suggestions in

Opposition to Plaintiff EEOC’s Motion for Protective Order, it is

ORDERED as follows:

1. Defendant is directed to withdraw its Notices to Take Depositions of Bantu

Publications Group, Ray County Fellowship Center, Richmond Police Department,

Shirkey Leisure Acres, and Station Casino, and reschedule said depositions at a time

mutually convenient for the parties.

2. Plaintiff’s request that defendant be precluded from asking Steve Bradley, Jr. at his

deposition on June 15, 2004, about any documents it receives from third parties on

June 14, 2004, pursuant to subpoena is denied.

/s/ Gary A. Fenner

DATED: June 10, 2004

GARY A. FENNER, JUDGE United States District Court

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY )

COMMISSION,

)

)

Plaintiff,

)

)

v.

)

)

WAL-MART STORES, INC.,

)

)

Defendant.

)

Case No. 04-0076-CV-W-GAF

CONSENT DECREE Plaintiff Equal Employment Opportunity Commission has instituted this action alleging that Defendant Wal-Mart Stores, Inc. failed to hire Steve E. Bradley, Jr., because of his disability, cerebral palsy, in violation of Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. For purposes of settlement and compromise only, the parties have advised the Court that they wish to resolve the instant controversy without the expense, delay and burden of further litigation; THEREFORE, it is the finding of this Court, made on the pleadings and on the record as a whole and upon agreement of the parties, that: (i) this Court has jurisdiction over the parties to and the subject matter of this action, (ii) the requirements of the ADA will be carried out by the implementation of this Decree, (iii) this Decree is intended to and does resolve all matters in controversy in this lawsuit among the parties, and (iv) the terms of this Decree constitute a fair and equitable settlement of all issues in this lawsuit. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:

I. NON-DISCRIMINATION 1. In all matters arising from or relating to employment, Wal-Mart and its officers,
agents, employees, successors, and assigns, or any of them, shall not engage in any employment practice which unlawfully discriminates against an employee or applicant under the Americans with Disabilities Act. Prohibited discrimination includes, but is not limited to:
a. refusing to hire or rehire a qualified individual with a disability because of his/her disability; b. refusing to provide a reasonable accommodation to a qualified individual with a disability; c. maintaining any practice or policy that violates the ADA by depriving or tending to deprive any individual of employment opportunities because of such individual’s disability; and d. making disability related pre-employment inquiries. II. NON-RETALIATION 2. Wal-Mart, its officers, agents, employees, successors, assigns, or any of them, shall not engage in reprisal or retaliation of any kind against any person because such person: a. opposed any practice made unlawful under the ADA; b. filed a charge of discrimination with the Commission or a state agency or testified or participated in any manner in any investigation, proceeding, or hearing under the ADA; c. requested and/or received relief in accordance with this Consent Decree;

d. participated in any manner in this action or in the investigation giving rise to this action; or e. asserted any rights under this Consent Decree. III. RELIEF FOR CHARGING PARTY 3. Within fifteen (15) days after this Decree is approved by the Court, Wal-Mart will forward to Steve E. Bradley, Jr., a check made payable to him in the gross amount of Three Hundred Thousand Dollars ($300,000.00), including: a. Five Thousand Four Hundred Seventy Dollars and Nine Cents ($5,470.09)
for backpay, less only any applicable deductions for the employee’s portion of FICA and applicable federal and state income tax withholdings; b. Two Hundred Ninety Four Thousand Five Hundred Twenty Nine Dollars and Ninety One Cents ($294,529.91) for compensatory damages. 4. Wal-Mart will forward to Steve E. Bradley, Jr., with the check described above, an itemized statement of withholdings for each amount withheld, including the employee share of FICA and the applicable federal and state income withholdings from each amount allocated separately as backpay, compensatory damages. IV. INJUNCTIVE RELIEF 5. Within 180 days after this Decree has been approved by the Court, Wal-Mart will provide live training to its Store Manager, Assistant Managers, and Personnel Manager responsible for the operations of Store #325 in Richmond, Missouri regarding the company’s policies and practices that relate to the employment and reasonable accommodation of persons

with disabilities, including the resources and support available through the company’s Director of ADA Services.
6. Within 30 days after this Decree has been approved by the Court, Wal-Mart will send notification that it encourages employment applications from persons with disabilities to the following organizations: The Rehabilitation Institute of Kansas City, Jewish Vocational Service of Kansas City, U.S. Veterans Employment Service (Kansas City), and The Full Employment Council (Kansas City and Jackson, Clay, Platte, Ray & Cass counties).
7. Within 180 days after this Decree has been approved by the Court, Wal-Mart will publish print advertising in the Kansas City Star that informs the public that the company is committed to employing persons with disabilities in many different kinds of jobs. The advertisements will run for a minimum of one week. Wal-Mart will notify the Commission’s Regional Attorney in its St. Louis District Office of the publishing date of the advertisements and provide copies of the ads at least seven days prior to publication. V. POSTING AND NOTICES
8. Wal-Mart will post and cause to remain posted the posters required to be displayed in the workplace by Commission Regulations, 29 C.F.R. § 1601.30.
9. Wal-Mart will post and cause to remain posted copies of the notice attached as Exhibit A (“Notice”) in locations publicly visible to all employees during the term of this Decree.
10. Wal-Mart will post and cause to remain posted a copy of the Notice adjacent to the Hiring Center kiosk in Store #325.

VI. MONITORING AND REPORTING 11. Wal-Mart’s Director of ADA Services will direct, monitor and maintain
responsibility for implementation of this Decree. 12. Within thirty (30) days after this Decree is approved by the Court, Wal-Mart will
forward to the Commission’s Regional Attorney in its St. Louis District Office a copy of the check and statement of withholdings forwarded to Steve E. Bradley, Jr. as described in paragraphs 3 and 4 above.
13. Within two hundred ten (210) days after this Decree is approved by the Court, Wal-Mart will forward to the Commission’s Regional Attorney in its St. Louis District Office a letter signed by its Director of ADA Services stating that it has complied with the requirements of paragraph 5 and 7, describing the manner and dates on which such compliance was effected.
14. Within sixty (60) days after this Decree is approved by the Court, Wal-Mart will forward to the Commission’s Regional Attorney in its St. Louis District Office a copy of the notification letter required by paragraph 6, and a letter signed by its Director of ADA Services that the company has complied with paragraph 6.
15. Within forty-five (45) days after this Decree is approved by the Court, Wal-Mart will prepare and submit to the Commission’s Regional Attorney in its St. Louis District Office a letter stating that the notices have been posted as required by paragraphs 8, 9, and 10 above.
16. On a quarterly basis, Wal-Mart will prepare and submit to the Commission’s Regional Attorney in its St. Louis District Office a list of all job applicants who are not hired whom the reviewing, interviewing or hiring Wal-Mart Associate knows to have a disability. This

list will include each individual’s name; home address; date of application; job titles sought; the reason the applicant was not hired; and name of each Manager or Associate involved in the hiring decision. If no known disabled individuals have applied and not been hired during the quarter, Wal-Mart will so inform the Commission’s Regional Attorney in its St. Louis District Office.
17. On a quarterly basis, Wal-Mart will prepare and submit to the Commission’s Regional Attorney in its St. Louis District Office a list of all job applicants to Store #325 in Richmond, Missouri who have complained of, reported, or filed a charge of discrimination in hiring on the basis of disability during that quarter. This list will include each individual’s name; home address; nature of the individual’s complaint; name of the individual who received the complaint or report; date complaint or report was received; description of Wal-Mart’s actions taken in response to the complaint or report, including the name of any manager or supervisor involved in those actions. If no such complaint, report or charge was received, Wal-Mart will so inform the Commission’s Regional Attorney in its St. Louis District Office.
18. At any time during the effect of this Decree, the Commission’s Regional Attorney in its St. Louis District Office may request from Wal-Mart’s Director of ADA Services certification, including supporting documentation, of Wal-Mart’s continued compliance with any term of this Decree. Wal-Mart will provide such certification, as requested, within a reasonable amount of time, not to exceed thirty (30) days after the request is made.

VI. GEOGRAPHICAL SCOPE OF DECREE 19. Except as otherwise specified in this Decree, the terms of this Decree apply to
Wal-Mart store #325 in Richmond, Missouri. VI. TERM AND EFFECT OF DECREE
20. By entering into this Decree the parties do not intend to resolve any charges of discrimination currently pending before the Commission other than the charge that created the procedural foundation for the complaint in this case.
21. This Decree will be binding upon the parties hereto, their successors and assigns. 22. This Decree is being entered with the consent of the parties for purposes of settlement and shall not constitute an adjudication on the merits of this lawsuit or be construed as an admission by Defendant of any violation of the Americans with Disabilities Act or any other law. 23. This Decree will be for a period of two (2) years and can be extended by timely petition to the Court by the Commission and upon a showing by the Commission that the applicable standard for modifying and extending a consent decree is satisfied. During the Decree’s term the Court will retain jurisdiction of this cause for purposes of compliance. 24. Each party will bear its own costs and attorney’s fees.

SO ORDERED: DATED: April 18, 2008

s/ Gary A. Fenner GARY A. FENNER, JUDGE UNITED STATES DISTRICT COURT

EXHIBIT A
NOTICE TO EMPLOYEES AND JOB APPLICANTS
(on company letterhead)
This Notice is posted as part of a remedy agreed to pursuant to a Consent Decree entered in the case of Equal Employment Opportunity Commission (EEOC) v. Wal-Mart Stores, Inc., Case No. 04-0076-GAF, on file in the United States District Court for the Western District of Missouri in Kansas City, Missouri. The agreed remedy as set forth in the Consent Decree includes monetary relief; training for managers at Store #325 in Richmond, Missouri; notice of rights to employees and job applicants; and reporting requirements.
Federal law prohibits discrimination against any employee because of race, national origin, color, religion, sex, disability or age (forty and over) with respect to hiring, promotion, firing, compensation, or other terms, conditions or privileges of employment. Federal law also prohibits retaliation against persons who complain of or oppose practices they believe are discriminatory on the basis of race, national origin, color, religion, sex, disability or age (forty and over), and it prohibits retaliation against persons who file charges with the EEOC, or who participate in or cooperate with an EEOC investigation.
Wal-Mart has agreed that it will not discriminate on the basis of disability in hiring, firing, work assignments, pay, promotion or other terms or conditions of employment. Wal-Mart Stores, Inc. supports and will comply with such federal law in all respects and will not take any action against employees because they have exercised their rights under the law. Specifically, Wal-Mart will not tolerate discrimination in employment, nor will it tolerate retaliation against any employee for exercising rights under law.
Employees or job applicants should feel free to report instances of discriminatory treatment to their supervisor, a manager, or Wal-Mart’s employee hotline [INSERT #], at any time. Wal-Mart has established policies and procedures to promptly investigate any such reports and to protect the person making the reports from retaliation, including retaliation by the person allegedly guilty of the discrimination. Individuals are also free to make complaints about employment discrimination to the Office of the Regional Attorney, United States Equal Employment Opportunity Commission, Kansas City Area Office, 400 State Avenue, Suite 905, Kansas City, KS 66101 or by telephone to (913) 551-5848.

 
 E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005)
2005 WL 1950080 United States District Court, W.D. Missouri, Western Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
WAL-MART STORES, INC., Defendant.
No. 04-0076-CV-W-GAF. | Aug. 12, 2005.
Attorneys and Law Firms
Andrea G. Baran, Andrea Taylor, Equal Employment Opportunity Commission, Kansas City, KS, Donna Harper, Robert G. Johnson, Equal Employment Opportunity Commission, St. Louis, MO, for Plaintiff.
Karen J. Halbrook, Swanson Midgley, LLC, Denise M. Anderson, Anderson Law Group, Kansas City, MO, for Defendant.
Opinion
ORDER
FENNER, J.
*1 Presently before the Court is Wal-Mart Stores, Inc. (“Wal-Mart”)’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (Doc. 126). On January 20, 2004, Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed this lawsuit on behalf of Steve E. Bradley (“Bradley”) pursuant to Title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12117(a) and the Civil Rights Act of 1991, 42 U.S.C. § 1981a, alleging that Wal-Mart engaged in unlawful employment practices by unlawfully failing to hire Bradley based on his disability. Wal-Mart has moved for summary judgment claiming that the EEOC’s claims fail as a matter of law. The EEOC has opposed this motion. For the following reasons, Wal-Mart’s motion for summary judgment is GRANTED.
I. Facts Bradley was born prematurely with cerebral palsy and has had spastic diplegia with lesser problems with his hands since birth. During the earliest years of his childhood, Bradley crawled on his arms and knees leading to dislocations of the elbows and chronically painful knees throughout his life. He has had numerous surgeries to improve the function of his joints, tendons, and spasticity, which has improved his mobility, but nevertheless Bradley has developed an intolerance to the performance of nonstop standing and walking. As such, he is dependant upon the use of crutches for standing and walking. Bradley’s legs are incapable of supporting him without help from his arms and, in order to move about, he must use both arms.
Because of his infirmities, Bradley utilizes a wheelchair if he is required to walk long distances. His need for a wheelchair arose because his knees have progressively degenerated throughout his life. Bradley has been using the wheelchair in some capacity for the last nine years. Additionally, his condition does not allow him to stand for long periods of time and, if he is required to do so, he must kneel instead. Although he is capable of climbing stairs, Bradley’s condition only allows him to do so at a slow pace. He avoids working at heights and has admitted that he would not apply for job that would require him to climb ladders on a continuous basis.
From June of 1998 to June of 2001, Bradley was employed as a proofreader for Banta Publishing, Inc. (“Banta”) in Richmond, Missouri. Banta was aware of Bradley’s disability and he used his wheelchair everyday he was employed there. In order to accommodate Bradley’s use of a wheelchair, Banta installed automatic doors in the areas Bradley was required to enter and exit. During this time, in June of 2000, Bradley was also employed for one day as a cashier at Texaco in Richmond,
1

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005)
Missouri. During his only day of employment at Texaco, Bradley used crutches. During his shift, Bradley quit voluntarily after his first day of work at Texaco. According to Bradley, the reason he quit Texaco was because the area in which he was working was not wheelchair accessible. In May of 2001, Bradley gave two-weeks notice of resignation and resigned from Banta citing “fuel expenses” as his reason for leaving. Bradley also has worked at Shirkley’s Leisure acres, from June to August of 2001, the Richmond Police Department, from August to October of 2001, and attended a training course at Station Casino.
*2 While he was employed at Banta, in July of 2000, Bradley submitted an application for “Greeter/Customer Assistant” position at a Wal-Mart store in Richmond. At the time of the application, the Richmond store was not a Wal-Mart Supercenter. Bradley has stated that he was seeking part-time employment in addition to his full-time employment with Banta. Wal-Mart did not hire Bradley in July of 2000.
On February 28, 2001, Bradley submitted an application for an “Associate/Any Department” position at the Richmond store. As before, when Bradley submitted this second application, he was employed at Banta. According to Bradley, at the time of this application, he was seeking full-time employment and intended to quit Banta if hired by Wal-Mart. Between January and March of 2001, the Richmond Wal-Mart was making a transition into a Supercenter. As a result, the Richmond Store received hundreds of applications, both by mail and in person, during this time period. During the hiring phase of the Richmond Store’s transition, a hiring committee reviewed applications, checked references, and contacted applicants for interviews. The committee screened applications based upon previous work history and availability.
The store manager of the Richmond Wal-Mart is David Penny and he is ultimately responsible for all final decisions regarding hiring, firing, and discipline of associates. During the hiring phase of the Richmond Store’s transition to a SuperCenter, however, Personnel Manager, Janet Dougherty (“Daugherty”) was designated as the final decision maker for hiring decisions at the SuperCenter. The Richmond Store received hundreds of applications, both by mail and in person, during the transition period. A hiring committee, comprising of Wal-Mart employees who had completed their management training, but had yet to assume their positions as managers, was created to assist in conducting interviews and reviewing applications. The committee screened applications initially on the basis of previous work history and availability. The nature of the SuperCenter, which was to be open 24 hours a day, made availability a priority early in the screening process. If an application made it past the initial screening process, a member of the committee would schedule an interview. The committee member who interviewed the applicant would not necessarily be the same member who screened the application. After the initial interview, an applicant who was thought to be a potential hire would have their application placed in a pile so that the references given could be checked. Based upon recommendations of the member conducting the initial interview, Daugherty would then make a decision as to whether to conduct a second interview. If the interviewer felt that the applicant did not warrant further consideration for employment, the application was then placed in a “dead pile” and no longer considered.
The application submitted by Bradley followed this procedure and Bradley received an interview. It is unknown who initially reviewed Bradley’s application or who contacted Bradley regarding his interview. Bradley, however, was interviewed by Maxine Hicks, who was a Wal-Mart employee and a member of the hiring committee during the hiring phase of the Richmond Store’s transition into a SuperCenter. During the interview, Bradley used his wheelchair. According to Bradley, Hick’s questioned him about his ability to handle the work from his wheelchair and said that the Greeter Position would be best suited for him. Bradley did not feel that he was treated wrongly or discriminated against during the interview with Hicks.
*3 Following Bradley’s initial interview, Daugherty reviewed his application for availability and work experience. Bradley’s application stated that he was only available to work from 4:30 p.m. to 10:00 p.m. each day and listed no retail experience. Bradley was not offered a second interview and was not hired by Wal-Mart for any position. Wal-Mart stated that it did not hire Bradley because of his lack of availability and his lack previous experience in retail and at a register. It was also stated that job history played a role in the decision not to hire him. Additionally, Daugherty has noted that Bradley had also worked at several jobs which he did not list on his application.
Bradley first contacted the EEOC after seeing a news report about a Missouri man who had filed a disability discrimination claim against Wal-Mart. It was Bradley’s intent at the time to offer his services as a possible character witness for the EEOC. After speaking with counsel for the EEOC, Bradley was directed to EEOC investigator Michael Katz (“Katz”). In the usual course of an EEOC claim, the individual is given an intake questionnaire on which the EEOC will make a determination on whether to proceed. Bradley had neither been given nor completed the questionnaire when he was contacted by Katz. Also, Katz was unaware that Bradley had no intention of filing a case on his own when he initially contacted the EEOC.
On September 25, 2001 Katz interviewed Bradley by phone and, based upon that conversation, drafted a Charge of 2

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005)
Discrimination to be mailed to Bradley. The Charge of Discrimination alleged that Bradley had been denied employment by Wal-Mart on the basis of his disability. Bradley signed the Charge. Following an investigation into Bradley’s charge, the EEOC filed this lawsuit on Bradley’s behalf.
II. Standard Rule 56(c), Federal Rules of Civil Procedure, provides that summary judgment shall be rendered if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, it is the court’s obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Inland Oil and Transport Co. v. United States, 600 F.2d 725, 727-28 (8th Cir.1979).
If there is no genuine issue about any material fact, summary judgment is proper because it avoids needless and costly litigation and promotes judicial efficiency. Roberts v. Browning, 610 F.2d 528, 531 (8th Cir.1979); United States v. Porter, 581 F.2d 698, 703 (8th Cir.1978). The summary judgment procedure is not a “disfavored procedural shortcut.” Rather, it is “an integral part of the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also City of Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273 (8th Cir.1988). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 324.
*4 At the summary judgment stage the judge’s function is not to weigh the credibility of the evidence, but rather to determine whether a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The evidence favoring the nonmoving party must be more than “merely colorable.” Id. at 2511. When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (footnote omitted).
III. Analysis Inits motion, Wal-Mart seeks summary judgment on all of EEOC’s claims for discrimination. Wal-Mart contends that EEOC is unable to establish a prima facie case of discrimination, cannot prove that Wal-Mart’s proffered legitimate nondiscriminatory reasons for not hiring Bradley are pretext for discrimination, and cannot overcome Wal-Mart’s affirmative defense that Bradley poses a direct threat of harm to himself and others. EEOC contends that all of Wal-Mart’s arguments fail and that the motion for summary judgment should be denied.
A. Discrimination based on disability Claims of discrimination under the ADA are analyzed under the well-worn McDonnell Douglas burden shifting framework. Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 712 (8th Cir.2003). Under this structure, the plaintiff must first establish a prima facie case of discrimination based on disability. Fenney, 327 F.3d at 712. Once the plaintiff makes out his prima facie case, a presumption of discrimination arises and the burden of production shifts to the defendant to put forth evidence that the defendant’s actions were based on legitimate, non-discriminatory reasons. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir.1999). If the defendant proffers such evidence, the burden shifts to the plaintiff to produce evidence demonstrating that the defendant’s stated reasons are pretexts for discrimination. Kiel, 169 F.3d at 1135.
In order to make out a prima facie case of discrimination under the ADA, the plaintiff must present evidence tending to show three things. Lowery v. Hazelwood Sch. Dist., 244 F.3d 654, 657 (8th Cir.2001). First, the plaintiff must show that he is disabled within the meaning of the ADA. Lowery, 244 F.3d at 657. Second, the plaintiff must show that he is qualified to perform the essential functions of his position. Id. Third, the plaintiff must put forth evidence that he suffered an adverse employment action under circumstances that would give rise to an inference of discrimination. Id. In this case, there is no dispute as to the first and third elements of the prima facie case. Wal-Mart has conceded that, due to his cerebral palsy,
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E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005)
Bradley is disabled within the meaning of the ADA. Additionally, Wal-Mart does not dispute that Bradley suffered an adverse employment action in that he was not hired for a job for which he applied. Consequently, the only issue for this Court to decide with regard to the EEOC’s prima facie case for discrimination based on disability is whether Bradley is qualified to perform the essential functions of the position.
*5 As to this second requirement of the prima facie case for disability discrimination, the EEOC must prove that Bradley is a “qualified individual” by putting forth evidence that he would be able to perform the essential functions of the position with or without reasonable accommodation. Mole v. Buckhom Rubber Prods., Inc., 165 F.3d 1212, 1216 (8th Cir.1999). An individual who is not a “qualified individual” at the time of the adverse employment action is “not under the protective umbrella of the ADA.” Browning v. Liberty Mutual Ins. Co., 178 F.3d 1043, 1048-49 (8th Cir.1999). If an employer argues that the individual cannot perform the essential functions, it must put forth evidence establishing those functions. Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 680 (8th Cir.2001)(citing Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1113 (8th Cir.1995)). The ultimate burden of proving that an individual is qualified within the meaning of the ADA, however, remains on the plaintiff. Id.
The First issue that this Court must address is the scope of EEOC’s claims of discrimination with regard to Bradley’s case. By order of this Court, the scope of these proceedings to Greeter, Cashier, Salesfloor Associate, and Optician (Non-Certified Vision Associate). See Transcript of Telephone Conference on August 22, 2004. In its opposition to summary judgment, EEOC asserts that while it “contends that Steve Bradley is also fully capable of performing the essential functions of the salesfloor associate, non-certified vision center associate, and stocker positions, for the purpose of this motion [the EEOC] is limiting [its] claims to the people greeter and cashier jobs.” (Doc. 131 at p. 84 note 2).
The Court should not have to note that the purpose of this motion is to ascertain whether there exists a general issue of material fact with regard the claims now at issue. Moreover, notwithstanding the EEOC’s present contentions, the burden of proving that a person is a “qualified individual” covered by the ADA falls squarely upon the plaintiff. Maziarka, 245 F.3d at 680. Thus, the burden to demonstrate the existence of a genuine issue of fact rests upon the EEOC. Although Wal-Mart has met its burden of establishing the essential functions of all of the jobs within the scope of discovery of this case, the EEOC has put forth proof regarding only two of them: Greeter and Cashier. The EEOC’s mere contention regarding Bradley’s ability to perform to perform the positions of Salesfloor Associate, Non-Certified Vision Associate, and Stocker falls far short of its burden of establishing a prima facie case with regard to those issues. In the context of summary judgment, the nonmoving party may not merely rest upon allegations or denials in its pleadings, but is required to set forth specific facts, by affidavits or otherwise, that demonstrate that there is a genuine issue of fact for trial. Ghane v. West, 148 F.3d 979, 981 (8th Cir.1998). As a result, this case and, therefore, this Court’s inquiry will be limited to the Wal-Mart positions of Greeter and Cashier.
*6 As stated earlier, in order to challenge the second element of the prima facie case, that the individual is a “qualified”, the employer must establish the essential functions of the position. Id. An essential function may be established by evidence that includes: (1) the employer’s judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; and (5) the current work experience of incumbents in similar jobs. Id. at 680-81. Wal-Mart has produced job descriptions of both the Greeter and Cashier positions which the EEOC has recognized as providing a list of the essential functions of those two jobs. See Plaintiff’s Suggestions Opposition to Summary Judgment (Doc. 131 at pp. 85-87).
i. Greeter Position Based upon the job description provided by Wal-Mart, the essential functions of the People Greeter Position are to: constantly greet and provide carts to customers entering and exiting the store; frequently lift and deactivate items weighing up to 10 pounds; frequently deactivate and record missing items with assigned tools; pick up items such as small coins; understand and effectively follow all company procedures, company policies, and laws on all restricted items; identify and promptly respond to returned items and inventory control concerns in accordance with company procedures; resolve customer concerns effectively; visually verify small print, items to pricing labels, shelf labels and other store signing; and communicate effectively with customers and other Wal-Mart associates. See Ex. 21 to Plaintiff’s Suggestions Opposition to Summary Judgment, Wal-Mart People Greeter Job Description.
In order to establish the second element of a prima facie case for discrimination based upon disability, a plaintiff is required to establish that he is qualified to perform the job. Burchett v. Target Corp., 340 F.3d 510, 517 (8th Cir.2003). In order to
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E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005)
determine whether an individual is qualified to perform the essential functions of a job requires a two-step inquiry. Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d 1011, 1016 (8th Cir.2000). The first step requires that the plaintiff show he meets the necessary prerequisites for the job and can perform the essential functions, with or without reasonable accommodation. Burchett, 340 F.3d at 517. If the plaintiff is unable to perform the essential functions of a position without accommodation, he must make a facial showing not only that accommodation is possible, but also that the accommodation will allow him to perform the essential functions of the job. Id.
In support of its contention that Bradley is capable to performing the essential functions of the Greeter Position, the EEOC directs the Court to a single statement by Wal-Mart manager Maxine Hicks. In her deposition, Hicks stated generally that a person in a wheelchair could be capable of performing the essential functions of the people greeter job. (Hicks Depo. at p. 118:5-9). According to the EEOC, this statement is sufficient to establish a prima facie case. Wal-Mart argues, however, that the statement made by Hicks was made in response to a general question regarding whether a person in a wheelchair could perform the job duties of the Greeter Position. This Court agrees. The question posed to Hicks was “... would a person in a wheelchair be able to perform the job duties of a people greeter?” (Hicks Depo. at p. 118:7-8). It was in response to this question that Hicks related that she thought that a person in a wheelchair could perform the Greeter Position. (Hicks Depo. at p. 118:9). Based upon this statement, the EEOC leaps to the conclusion that it has established its prima facie case.
*7 This Court, however, remains unsatisfied that this is sufficient proof of Bradley’s ability to perform the essential functions of the Greeter Position. Even when taking the facts in the light most favorable to it, the EEOC has failed to meet its burden in establishing that Bradley is able to perform the essential functions of the position in his wheelchair. Clearly, the fact that a person in a wheelchair is capable of performing the essential functions of the Greeter Position does not demonstrate that anyone, regardless of other limitations or circumstances could perform the job from a wheelchair. Bradley is an individual with cerebral palsy and suffers from spastic diplegia in his hands. The EEOC attempts to bolster its argument that he is qualified to perform the essential functions of the Greeter Position by splicing portions of Wal-Mart’s expert testimony regarding Bradley’s capabilities while using his wheelchair. The EEOC points to testimony regarding Bradley’s upper body strength and balance which enable him to move items weighing 50 pounds using his wheelchair and bend easily to pick items off of the floor. These examples, however, are single tasks that are not sufficient to create an issue of fact for trial on Bradley’s ability to perform the essential functions of the position for an entire shift using only his wheelchair.
In order to determine whether a disabled individual is qualified for the purposes of supporting a claim for disability discrimination, there must be a factual determination between the abilities of the individual, with or without reasonable accommodation, and the essential functions of the job at issue. By blurring the lines between prima facie case and reasonable accommodation, the EEOC attempts to shift their burden to Wal-Mart. The Court, however, must be ever mindful of where the burden of proof lies. A plaintiff can shift the burden of production to the employer to demonstrate that it is unable tp accommodation the employee, if the plaintiff can make a facial showing that an accommodation is possible. Benson v. Northwest Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995).
Additionally, the plaintiff must demonstrate that the accommodation will enable the employee to perform the essential functions of the job. Burchett, 340 F.3d at 517. The EEOC is unable to shift the burden of production, however, because it has not put forth sufficient evidence regarding Bradley’s abilities with the use of his wheelchair to demonstrate that he is able perform all of the essential functions required by the Greeter position solely with his wheelchair. As stated above, the burden of establishing a prima facie case for disability discrimination falls squarely upon the plaintiff. Maziarka, 245 F.3d at 680. This Court finds that the EEOC has not met its burden.
ii. Cashier Position The EEOC’s case for discriminatory failure to hire Bradley as a Cashier suffers from the same defects as its claims regarding the Greeter Position. Again, Wal-Mart provided the essential functions of the Cashier position in a job description, which was adopted by EEOC in opposing Wal-Mart’s motion. As essential functions, a Cashier at Wal-Mart is required to: constantly scan, deactivate, and bag items of varying sizes; continuously lift, scan, deactivate, and bag items weighing up to 10 pounds; frequently lift, scan, deactivate, and bag items weighing greater than ten pounds; accurately and effectively make and count back change; understand and effectively follow all company procedures, company policies, an laws on all restricted items, tax exempt sales, and government issued financial assistance; resolve customer concerns effectively; pick up items, such as small coins and change the receipt paper in the register printer; visually verify small print, items to pricing labels; shelf labels and other store signing, customer identification and payment to each other and to the register to display; and communicate effectively with customers and other Wal-Mart associates. See Ex. 22 to Plaintiff’s Suggestions Opposition to Summary Judgment, Wal-Mart Cashier Job Description.
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E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005) *8 Once again, the EEOC attempts to use a generalization regarding the ability of qualifications of a person in a wheelchair to establish its prima facie case. The EEOC directs the Court to the deposition of Wal-Mart corporate representative, Janet Daugherty, in attempt to establish its prima facie case for disability discrimination against Bradley. As with the statement from Hicks’ deposition, Daugherty’s statements were general in nature with regard to the ability of an individual in wheelchair to perform the essential functions of the cashier position with reasonable accommodation. What the EEOC has failed to do, however, is put forth sufficient evidence demonstrating that Bradley, the individual in question, is capable of performing all of the essential functions of the Cashier position using only his wheelchair. While the EEOC does suggest that certain accommodations could be made, it offers no evidence that Bradley could even perform the duties required of a Cashier even if he were accommodated as such. Thus, the EEOC has failed to present sufficient evidence to satisfy his prima facie case. IV. Conclusion For the foregoing reasons summary judgment on the EEOC’s claim of discrimination in violation of the ADA is appropriate. As such, Wal-Mart’s motion for summary judgment is GRANTED. IT IS SO ORDERED. Parallel Citations 17 A.D. Cases 941
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 E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005)
2005 WL 3489206 United States District Court, W.D. Missouri, Western Division.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v.
WAL-MART STORES, INC., Defendant.
No. 04-00076-CV-W-GAF. | Dec. 21, 2005.
Attorneys and Law Firms
Andrea G. Baran, U.S. Equal Employment Opportunity Comm., Kansas City, KS, Donna Harper, Robert G. Johnson, U.S. Equal Employment Opportunity Comm., St. Louis, MO, for Plaintiff.
Denise M. Anderson, Anderson Law Group, Kansas City, MO, for Defendant.
Opinion
ORDER
FENNER, J.
*1 Presently before the Court is a Motion for Reconsideration filed by the Plaintiff, the Equal Employment Opportunity Commission (“The EEOC”). (Doc. # 145). The EEOC asks this Court to reconsider its Order granting summary judgment in favor of Defendant, Wal-Mart Stores, Inc. (“Wal-Mart.”) (Doc. # 143). The EEOC filed this lawsuit on behalf of Steve E. Bradley (“Bradley”) pursuant to Title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12117(a), and the Civil Rights Act of 1991, 42 U.S.C. § 1981, alleging that Wal-Mart engaged in unlawful hiring practices by failing to hire Bradley based on his disability. (Doc. # 16).
This Court granted summary judgment on August 12, 2005, finding that the EEOC failed to present evidence in support of an essential element of its prima facie case. (Doc. # 143). Specifically, this Court found that the EEOC failed to put forth evidence which tended to show that Bradley was qualified to perform the essential functions of the positions for which he applied. Id. In its present Motion, the EEOC “seeks to clarify the factual record with respect to Bradley’s ability to perform the essential functions of the people greeter and cashier jobs.” (Doc. # 145). For the reasons set forth below, the EEOC’s Motion for Reconsideration is DENIED.
DISCUSSION
I. Facts This case arose when Bradley applied for and was denied a job at a Wal-Mart store in Richmond, Missouri in February of 2001.1 Bradley was born prematurely with cerebral palsy and has had spastic diplegia with lesser problems with his hands since birth. During the earliest years of his childhood, Bradley crawled on his arms and knees leading to dislocations of the elbows and chronically painful knees throughout his life. He has had numerous surgeries to improve the function of his joints, tendons, and spasticity, which has improved his mobility, but nevertheless Bradley has developed an intolerance to the performance of nonstop standing and walking. As such, he is dependant upon the use of crutches for standing and walking. Bradley’s legs are incapable of supporting him without help from his arms and, in order to move about, he must use both arms.
Because of his infirmities, Bradley uses a wheelchair if he is required to walk long distances. His need for a wheelchair arose 1

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005)
because his knees have progressively degenerated throughout his life. Bradley has been using the wheelchair in some capacity for the last nine years. Additionally, his condition does not allow him to stand for long periods of time and, if he is required to do so, he must kneel instead. Although he is capable of climbing stairs, Bradley’s condition only allows him to do so at a slow pace.
From 1995 to 1997, Bradley was employed by Ray County Fellowship as an administrator. From June of 1998 to June of 2001, Bradley was employed as a proofreader for Banta Publishing, Inc. (“Banta”) in Richmond, Missouri. Bradley used his wheelchair everyday he was employed at Banta. In June of 2000, Bradley was also employed for one day as a cashier at Texaco in Richmond, Missouri. During his only day of employment at Texaco, Bradley used crutches. Bradley quit voluntarily after his first day of work at Texaco. In May of 2001, Bradley gave two-weeks notice of resignation and resigned from Banta citing “fuel expenses” as his reason for leaving.
*2 On February 28, 2001, Bradley submitted an application for an “Associate/Any Department” position at the Richmond store. According to Bradley, at the time of this application, he was seeking full-time employment and intended to quit Banta if hired by Wal-Mart. Between January and March of 2001, the Richmond Wal-Mart was making a transition into a SuperCenter. The store manager of the Richmond Wal-Mart is David Penny and he is ultimately responsible for all final decisions regarding hiring, firing, and discipline of associates. During the hiring phase of the Richmond Store’s transition to a SuperCenter, however, Personnel Manager, Janet Daugherty (“Daugherty”) was designated as the final decision maker for hiring decisions at the SuperCenter.
The Richmond Store received hundreds of applications, both by mail and in person, during the transition period. A hiring committee, comprised of Wal-Mart employees who had completed their management training but had yet to assume their positions as managers, was created to assist in reviewing applications, conducting interviews, and checking references. The committee screened applications based upon previous work history and availability. The nature of the SuperCenter, which was to be open 24 hours a day, made availability a priority early in the screening process. In making hiring decisions, the committee took into account scheduling restrictions based on high school and college class schedules if the applicant was otherwise available.
If an application made it past the initial screening process, a member of the committee would schedule an interview. The committee member who interviewed the applicant would not necessarily be the same member who screened the application. After the initial interview, an applicant who was thought to be a potential hire would have his or her application placed in a pile so that references could be checked. If the interviewer felt that the applicant did not warrant further consideration for employment, the application was then placed in a “dead pile” and no longer considered.
The application submitted by Bradley followed this procedure and Bradley received an interview. It is unknown who initially reviewed Bradley’s application or who contacted Bradley regarding his interview. Bradley, however, was interviewed by Maxine Hicks (“Hicks”), who was a Wal-Mart employee and a member of the hiring committee during the hiring phase of the Richmond store’s transition into a SuperCenter. During the interview, Bradley used his wheelchair. According to Bradley, Hick’s questioned him about his ability to handle the work from his wheelchair and said that the Greeter Position would be best suited for him. Bradley did not feel that he was treated wrongly or discriminated against during the interview with Hicks.
Following Bradley’s initial interview, Daugherty reviewed his application for availability and work experience. The first page of Bradley’s application stated that he was only available to work from 4:30 p.m. to 10:00 p.m. each day. On the back page, Bradley wrote that he was available from 4:00 p.m. until 10:00 p.m each day. Bradley listed no cashier or retail experience. Bradley was not offered a second interview and was not hired by Wal-Mart for any position. Wal-Mart stated that it did not hire Bradley because of his lack of availability and his lack of previous experience in retail and at a register. Wal-Mart also stated that job history played a role in the decision not to hire him. Additionally, Daugherty noted that Bradley had also worked at several jobs which he did not list on his application.
*3 Bradley listed only Banta and Ray County fellowship as his employment history on his application. On his resume, Bradley stated that his job duties at Banta included: page layout, color combinations, correlation between text and photos, compare customer supplied materials to pre-press proofs. Bradley stated his duties at Ray County fellowship included: in-house senior activities, coordinate Meals on Wheels program, organize elderly transportation, community betterment programs, file government reports.
Bradley first contacted the EEOC after seeing a news report about a Missouri man who had filed a disability discrimination claim against Wal-Mart. It was Bradley’s intent at the time to offer his services as a possible character witness for the EEOC. After speaking with counsel for the EEOC, Bradley was directed to EEOC investigator Michael Katz (“Katz”). In the usual
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E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005)
course of an EEOC claim, the individual is given an intake questionnaire on which the EEOC will make a determination on whether to proceed. Bradley had neither been given nor completed the questionnaire when he was contacted by Katz. Also, Katz was unaware that Bradley had no intention of filing a case on his own when he initially contacted the EEOC.
On September 25, 2001 Katz interviewed Bradley by phone and, based upon that conversation, drafted a Charge of Discrimination to be mailed to Bradley. The Charge of Discrimination alleged that Bradley had been denied employment by Wal-Mart on the basis of his disability. Bradley signed the Charge. Following an investigation into Bradley’s charge, the EEOC filed this lawsuit on Bradley’s behalf.
This Court granted summary judgment in favor of Wal-Mart because Bradley failed to present evidence sufficient to create a genuine issue of material fact regarding whether he was qualified to perform the essential functions of the jobs for which he applied. (Doc. # 143). The EEOC argues that, in granting Wal-Mart’s motion for summary judgment, the Court made statements that reflect a misunderstanding of the record. (Doc. # 146). First, the EEOC’s Motion “seeks to clarify how Bradley’s condition affects his manual dexterity,” specifically as it relates to the Court’s Order granting summary judgment, which stated that Bradley “suffers from spastic diplegia in his hands.” ‘ (Doc. # 145). The EEOC also “seeks to clarify the factual record with respect to Bradley’s ability to perform the essential functions of the people greeter and cashier jobs [.]” (Doc. # 146). Wal-Mart argues that the EEOC’s Motion for Reconsideration fails to meet the standards set forth under Federal Rule of Civil Procedure 59(e) (“Rule 59(e)”) and Federal Rule of Civil Procedure 60(b) (“Rule 60(b)”). (Doc. # 147).
II. Legal Standards
A. Summary Judgment Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, it is the court’s obligation to view the facts in the light most favorable to the adverse party and to allow the adverse party the benefit of all reasonable inferences to be drawn from the evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Inland Oil and Transport Co. v. United States, 600 F.2d 725, 727-28 (8th Cir.1979). Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
B. Motion for Reconsideration *4 The EEOC fails to describe the basis under which it seeks relief. Therefore, this Court has two options-to construe the Motion under Rule 59(e), as a motion to alter or amend the judgment, or under Rule 60(b), as a motion for relief from judgment for mistake or other reasons. See Sanders v. Clemco Industries, 862 F.2d 161, 168 (8th Cir.1988).
The purpose of Rule 59(e) is to make clear that district courts possess the power to correct their own mistakes in the period immediately following the entry of a judgment. White v. New Hampshire Dept. of Employment Sec., 455 U.S. 445, 450, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982). A party filing a motion to alter or amend judgment under Rule 59(e) must rely on one of the following: (1) an intervening change in controlling law; (2) the availability of new evidence not available previously; or (3) the need to correct a clear error of law or prevent manifest injustice. Randle v. Frank, 1992 U.S. Dist. LEXIS 4635, *1 (W.D.Mo.1992) (internal citations omitted). A Rule 59(e) motion must be served within ten days from the entry of judgment. Id.
A Rule 60(b) motion must be made “within a reasonable time,” and allows a party relief from a final judgment, order, or proceeding when the ground asserted is: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud, misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. Id.; Sanders, 862 F.2d at 169.
A motion under Rule 59(e) tolls the running of the 30 days to appeal the judgment, whereas a motion under Rule 60(b) does
3

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005)
not. Sanders, 862 F.2d at 168-169. Because the EEOC filed the instant Motion within ten days after the entry of the order granting summary judgment, this Court will treat this as a motion under Rule 59(e)2 for purposes of appeal. See Id.
III. Analysis The EEOC argues that, in granting Wal-Mart’s motion for summary judgment, the Court made statements that reflect a misunderstanding of the record. (Doc. # 146). First, the EEOC’s Motion “seeks to clarify how Bradley’s condition affects his manual dexterity,” specifically as it relates to the Court’s order granting summary judgment, which stated that Bradley “suffers from spastic diplegia in his hands.” ‘ (Doc. # 145). The EEOC suggests that this Court relied on Wal-Mart’s uncontroverted statement that Bradley “has had spastic diplegia with lesser problems with his hands since birth” in reaching the conclusion that Bradley’s spastic diplegia affected his hands. (Doc. # 146). The EEOC points out in the instant Motion that Bradley’s spastic diplegia affects his legs, not his hands. Id. The condition’s only effect on Bradley’s upper body, the EEOC argues, is that his fourth and fifth fingers tend to move together instead of separately. Id.
*5 The Court indeed misinterpreted the confusing statement that Bradley “has had spastic diplegia with lesser problems with his hands since birth,” to mean that Bradley’s spastic diplegia affected his hands. However, the Court’s grant of summary judgment in no way hinged on the finding that Bradley had spastic diplegia in his hands. Rather, this Court granted summary judgment because Bradley failed to present evidence sufficient to create a genuine issue of material fact regarding whether he was qualified to perform the essential functions of the jobs for which he applied.
The EEOC further argues that, in finding that Bradley failed to present sufficient evidence that he was qualified to perform the essential functions of the people greeter and cashier jobs, this Court essentially misunderstood the entire record. (Doc. # 146). The EEOC now “seeks to clarify the factual record with respect to Bradley’s ability to perform the essential functions of the people greeter and cashier jobs[.]” Id. The EEOC directs the Court’s attention to various places in the record that the EEOC claims “further establish that Bradley is able to perform the essential functions of [the people greeter and cashier] jobs.” Id. However, this Court already considered the evidence in the record in ruling on Wal-Mart’s motion for summary judgment. The EEOC has failed to show an intervening change in controlling law, the availability of new evidence not available previously, or the need to correct a clear error of law or prevent manifest injustice. Instead, the EEOC’s Motion merely rehashes facts and evidence the Court already considered in granting summary judgment. Consequently, the EEOC’s Motion for Reconsideration is insufficient to meet the standards of Rule 59(e).
Further, although the Court finds no error with its previous order granting summary judgment on the basis of the EEOC’s failure to present sufficient evidence of Bradley’s ability to perform the essential functions of the people greeter and cashier jobs, the Court notes that summary judgment is also appropriate in this case because the EEOC has failed to present any evidence that Wal-Mart’s stated reasons for not hiring Bradley were a pretext for discrimination.
Claims of discrimination under the ADA are analyzed under the McDonnell Douglas burden shifting framework. Fenney v. Dakota, Minn. & E.R.R. Co., 327 F.3d 707, 712 (8th Cir.2003). Under this structure, the plaintiff must first establish a prima facie case based on disability. Id. If the plaintiff makes out a prima facie case, the burden of production shifts to the defendant to put forth evidence that its actions were based on legitimate, non-discriminatory reasons. Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1135 (8th Cir.1995). If the defendant puts forth such evidence, the burden shifts back to the plaintiff to produce evidence demonstrating that the defendant’s stated reasons are pretexts for discrimination. Id.
*6 Evidence to rebut a defendant’s legitimate, nondiscriminatory reason must “pass beyond speculation into the realm of reasonable inference.” Edmund v. MidAmerican Energy Co., 299 F.3d 679, 685 (8th Cir.2002). The evidence must be that from which a reasonable jury could conclude that Wal-Mart’s reasons for its decision not to hire Bradley were a pretext for discrimination. See Qttman v. City of Independence, Missouri, 341 F.3d 751, 758 (8th Cir.2003). The EEOC may use instances of disparate treatment to support a claim of pretext. See Harvey v. Anheuser-Busch, 38 F.3d 968, 972 (8th Cir.1994). However, the test for whether individuals are similarly situated to warrant a comparison is a “rigorous” one. Saulsberry v. St. Mary’s Univ., 318 F.3d 862, 867 (8th Cir.2003), quoting Conquist v. City of Minneapolis, 237 F.3d 920, 926 (8th Cir.2001).
In this case, Wal-Mart states that it did not hire Bradley because of his limited availability, his work history, and his lack of retail experience. (Doc. # 125). The only evidence put forth by the EEOC on this issue is a comparison of a handful of applicants who were hired by Wal-Mart. (Doc. # 131). However, those applicants are not substantially similar to Bradley, as required by the law. For example, none of the applicants had such limited availability of 4:00 p.m. to 10:00 p.m., like Bradley, unless the applicants were high school students or intended Wal-Mart to be a second job; most applicants had previous work experience with the general public; many applicants had previous cashier and/or retail experience; several had
4

E.E.O.C. v. Wal-Mart Stores, Inc., Not Reported in F.Supp.2d (2005)
work experience particular to the job for which they were applying; the vast majority were high school students with completely open availability but for their high school class schedules (which, by law, had to be honored by Wal-Mart); several were college students with completely open availability but for their class schedules; several applied specifically for part time work. (Doc. # 131, Attach. 1, Exh. # 19 & # 20). The EEOC wholly fails to refute defendant’s proffered reasons for not hiring Bradley or explain how these individuals are similarly situated to Bradley.
Even if the EEOC had put forth sufficient evidence to create a genuine issue of material fact regarding Bradley’s ability to perform the essential functions of the people greeter and cashier jobs, the EEOC has put forth absolutely no evidence from which a reasonable factfinder could infer that Wal-Mart’s reasons for not hiring Bradley were a pretext for discrimination.

CONCLUSION
The EEOC’s Motion for reconsideration merely rehashes facts and attempts to resurrect evidence the Court already evaluated in granting summary judgment. As such, the EEOC fails to meet the standards under Rule 59(e) and the Court finds no error with its previous Order. Further, in addition to the EEOC’s failure to put forth evidence in support of an essential element of its prima facie case, the EEOC has also failed to put forth one scintilla of evidence from which a reasonable factfinder could conclude that Wal-Mart’s reasons for not hiring Bradley were a pretext for discrimination. Accordingly, the EEOC’s Motion for Reconsideration is DENIED.

*7 IT IS SO ORDERED.

Parallel Citations

17 A.D. Cases 947

Footnotes

1

Unless otherwise noted, these facts are taken from Wal-Mart’s Suggestions in Support of its Motion for Summary Judgment and

are uncontroverted by the EEOC.

2

The Court notes, however, that the EEOC’s Motion for Reconsideration is insufficient to meet the standards under either Rule

59(e) or Rule 60(b).

5

 
 CM/ECF Western District of Missouri

4/22/08 3:31 PM

CLOSED, EAPN
U.S. District Court United States District Court for the Western District of Missouri (Kansas City)
CIVIL DOCKET FOR CASE #: 4:04-cv-00076-GAF

Equal Employment Opportunity Commission v. Wal-Mart Inc Assigned to: District Judge Gary A. Fenner Case in other court: 8th Circuit Court of Appeals, 06-01583 Cause: 42:12101 American with Disabilities Act

Date Filed: 01/20/2004 Date Terminated: 04/18/2008 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Plaintiff
Equal Employment Opportunity Commission

represented by Andrea G. Baran US Equal Employment Opportunity Comm 400 State Ave. Suite 905 Kansas City, KS 66101 (913)551-5848 Fax: (913)551-6957 Email: andrea.baran@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Barbara A. Seely Equal Employment Opportunity Commission Robert Young Federal Building 1222 Spruce Street Room 8.100 St. Louis, MO 63103 (314)539-7916 Fax: (314)539-7895 Email: barbara.seely@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Donna Harper SEDEY HARPER PC 3030 Grand Ave. Suite 200 St. Louis, MO 63118

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(314) 773-3566 Fax: (314) 773-3615 Email: dharper@sedeyharper.com LEAD ATTORNEY
Robert G. Johnson Equal Employment Opportunity Commission 1222 Spruce Street Room 8.100 St. Louis, MO 63103 (314)539-7910 Fax: (314)539-7895 Email: robert.johnson@eeoc.gov LEAD ATTORNEY
Andrea Taylor Equal Employment Opportunity Commission 400 State Avenue Suite 905 Kansas City, KS 66101 (913)551-5844 Fax: 913-551-6957 Email: andrea.taylor@eeoc.gov TERMINATED: 07/05/2005

V. Defendant Wal-Mart Inc

represented by Cathy J. Dean Polsinelli Shalton Flanigan Suelthaus, PC 700 West 47th Street Suite 1000 Kansas City, MO 64112 (816)753-1000 Fax: (816)753-1536 Email: cdean@polsinelli.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

Karen J. Halbrook Halbrook Law Firm, PC 3500 W. 75th Street Suite 300 Prairie Village, KS 66208 913-529-1188

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Fax: 913-529-1199 Email: khalbrook@halbrooklaw.com TERMINATED: 07/19/2004
Denise M. Anderson Polsinelli Shalton Flanigan Suelthaus PCKCMO 700 West 47th Street Suite 1000 Kansas City, MO 64112-1802 (913) 205-9440 Email: deniseanderson.attorney@gmail.com ATTORNEY TO BE NOTICED

Date Filed 01/20/2004
01/20/2004 01/30/2004
02/26/2004 04/01/2004 04/06/2004 04/06/2004 04/23/2004 04/29/2004

# Docket Text
1 COMPLAINT against Wal-Mart Inc Service due by 5/19/2004, filed by Andrea G. Baran on behalf of Equal Employment Opportunity Commission.(Baran, Andrea) Additional attachment(s) added on 1/21/2004 to attach civil cover sheet(Honeycutt, Cassaundra). (Entered: 01/20/2004)
2 Notice of EAPN (Attachments: # 1 General Order)(Honeycutt, Cassaundra) Additional attachment(s) added on 1/21/2004 (Honeycutt, Cassaundra). (Entered: 01/21/2004)
3 AMENDED COMPLAINT against Wal-Mart Inc Service due by 6/1/2004, filed by Andrea G. Baran on behalf of Equal Employment Opportunity Commission.(Baran, Andrea) Complaint amended to correct Steve E. Bradley, Jr.'s middle initial. (Kendall, Shelly). (Entered: 01/30/2004)
4 WAIVER OF SERVICE returned executed by Equal Employment Opportunity Commission. Wal-Mart Inc waiver sent on 2/2/2004, answer due 4/2/2004. (Baran, Andrea) (Entered: 02/26/2004)
5 Defendant's ANSWER to Amended Complaint filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 04/01/2004)
6 Rule 16 Noticeproposed scheduling order due by 5/21/2004, rule 26 conference due by 5/11/2004,. Signed by Judge Gary A. Fenner on 4/6/04. (Mitchell, Lisa) (Entered: 04/06/2004)
7 DISCLOSURE OF CORPORATE INTERESTS filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 04/06/2004)
8 DESIGNATION OF NEUTRAL naming Larry Rute(Baran, Andrea) (Entered: 04/23/2004)
9 MOTION to amend/correct 3 Amended Complaint, filed by Andrea G. Baran on behalf of Equal Employment Opportunity Commission Suggestions in

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05/10/2004 05/11/2004 05/11/2004 05/11/2004
05/11/2004
05/17/2004 05/19/2004 05/21/2004 05/24/2004 05/24/2004
05/25/2004 05/28/2004

opposition/response due by 5/14/2004 (Attachments: # 1 Exhibit A - Second Amended Complaint)(Related document(s) 3 ) (Baran, Andrea) (Entered: 04/29/2004)
10 NOTICE to take deposition of Steven Bradley filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 05/10/2004)
11 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 05/11/2004)
12 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 05/11/2004)
13 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission for First Request for Production of Documents filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 05/11/2004)
14 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission for First Interrogatories to Defendant filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 05/11/2004)
15 ORDER granting 9 motion to amend/correct. Signed by Judge Gary A. Fenner on 5/17/04. (Mitchell, Lisa) (Entered: 05/17/2004)
16 AMENDED COMPLAINT Second Amended Complaint against Wal-Mart Inc Service due by 9/16/2004, filed by Andrea G. Baran on behalf of Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 05/19/2004)
17 Joint PROPOSED SCHEDULING ORDER by Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 05/21/2004)
18 RULES OF TRIAL. Signed by Judge Gary A. Fenner on 5/24/04. (Mitchell, Lisa) (Entered: 05/24/2004)
19 SCHEDULING ORDER: Discovery due by 10/29/2004. Pretrial Conference set for 3/3/2005 01:30 PM before Gary Fenner. Jury Trial set for 4/4/2005 09:00 AM in Courtroom 8A, Kansas City (GAF) before Gary Fenner.Dispositive Motions due by 12/3/2004.. Signed by Judge Gary A. Fenner on 5/24/04. (Mitchell, Lisa) (Entered: 05/24/2004)
20 CERTIFICATE OF SERVICE by Wal-Mart Inc Amended Rule 26(a)(1) Initial Disclosures filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 05/25/2004)
21 Defendant's Amended ANSWER to Complaint Second Amended Complaint filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 05/28/2004)

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06/03/2004 06/03/2004 06/03/2004 06/03/2004 06/03/2004 06/03/2004 06/04/2004 06/09/2004 06/09/2004
06/10/2004
06/10/2004 06/11/2004 06/11/2004

22 NOTICE to take deposition of Banta Publications Group records custodian filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 06/03/2004)
23 NOTICE to take deposition of Ray County Fellowship Center records custodian filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 06/03/2004)
24 NOTICE to take deposition of Richmond Police Department records custodian filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 06/03/2004)
25 NOTICE to take deposition of Shirkey Leisure Acres records custodian filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 06/03/2004)
26 NOTICE to take deposition of Station Casino records custodian filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 06/03/2004)
27 NOTICE to take deposition of Maxine Hicks filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 06/03/2004)
28 NOTICE to take deposition of Maxine Hicks filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 06/04/2004)
29 NOTICE of appearance by Andrea Taylor on behalf of Equal Employment Opportunity Commission (Taylor, Andrea) (Entered: 06/09/2004)
30 MOTION for protective order filed by Andrea Taylor on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 6/24/2004 (Attachments: # 1 Notice of Exhibit Attachment)(Taylor, Andrea) Modified on 6/10/2004 to acknowledge receipt of exhibits in Clerk's office (McDowell, Shelly). (Entered: 06/09/2004)
31 SUGGESTIONS in opposition re 30 MOTION for protective order filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc. Reply Suggestions due by 6/25/2004. (Related document(s) 30 ) (Halbrook, Karen) (Entered: 06/10/2004)
32 ORDER granting in part and denying in part 30 motion for protective order. Signed by Judge Gary A. Fenner on 6/10/04. (Mitchell, Lisa) (Entered: 06/10/2004)
33 CERTIFICATE OF SERVICE by Wal-Mart Inc of Defendant's Response to Plaintiff's First Request for Production of Documents filed by Karen J. Halbrook on behalf of Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 06/11/2004)
34 CERTIFICATE OF SERVICE by Wal-Mart Inc of Defendant's Response to Plaintiff's First Interrogatories filed by Karen J. Halbrook on behalf of

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CM/ECF Western District of Missouri

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07/01/2004
07/12/2004 07/13/2004
07/15/2004 07/15/2004 07/15/2004 07/16/2004 07/16/2004 07/19/2004 07/19/2004 07/20/2004

Defendant Wal-Mart Inc.(Halbrook, Karen) (Entered: 06/11/2004)
35 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission for Second Interrogatories, Second Request for Production of Documents and First Request for Admissions to Defendant filed by Andrea Taylor on behalf of Plaintiff Equal Employment Opportunity Commission.(Taylor, Andrea) (Entered: 07/01/2004)
36 NOTICE to take deposition of Rule 30(b)(6) designee(s) filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 07/12/2004)
37 MOTION for order Modify Scheduling Order filed by Andrea G. Baran on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 7/28/2004 (Attachments: # 1 Exhibit A - Plaintiff's First Interrogatories to Defendant# 2 Exhibit B - Plaintiff's First Request for Production of Documents to Defendant)(Baran, Andrea) (Entered: 07/13/2004)
38 NOTICE to take deposition of Rule 30(b)(6) designee(s) filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 07/15/2004)
39 CERTIFICATE OF SERVICE by Wal-Mart Inc First Supplement to Defendant's Response to Plaintiff EEOC's First Request for Production of Documents and Things filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 07/15/2004)
40 CERTIFICATE OF SERVICE by Wal-Mart Inc First Supplement to Defendant's First Response to Plaintiff EEOC's First Interrogatories filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 07/15/2004)
41 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's designation and objections to plaintiff's Amended Notice of F.R.C.P. 30(b)(6) Deposition filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 07/16/2004)
42 MOTION to withdraw as attorney filed by Karen J. Halbrook on behalf of WalMart Inc Suggestions in opposition/response due by 8/2/2004 (Halbrook, Karen) (Entered: 07/16/2004)
43 ORDER granting 42 motion to withdraw as attorney. Attorney Karen J. Halbrook terminated. Signed by Judge Gary A. Fenner on 7/19/04. (Mitchell, Lisa) (Entered: 07/19/2004)
44 NOTICE to take deposition of Rule 34(a)(2) Entry Upon Land for Inspection and Other Purposes filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 07/19/2004)
45 NOTICE to take deposition of Rule 30(b)(6) designee(s) filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity

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CM/ECF Western District of Missouri

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07/21/2004 07/21/2004 07/21/2004 07/26/2004 07/28/2004 07/30/2004 07/30/2004 08/02/2004 08/02/2004 08/02/2004

Commission.(Baran, Andrea) (Entered: 07/20/2004)
46 MOTION for protective order filed by Denise M Anderson on behalf of WalMart Inc Suggestions in opposition/response due by 8/5/2004 (Attachments: # )(Anderson, Denise) Modified on 7/22/2004 to remove unexecuted protective order (McDowell, Shelly). Terminated on 3/11/2005 (Diefenbach, Tracy). (Entered: 07/21/2004)
47 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's Second Supplement to Defendant's First Response to Plaintiff EEOC's First Interrogatories to Defendant filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 07/21/2004)
48 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's Second Supplement to Defendant's First Response to Plaintiff EEOC's First Request for Production of Documents and Things to Defendant filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 07/21/2004)
49 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission Second Request for Admissions filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 07/26/2004)
50 SUGGESTIONS in opposition re 37 MOTION for order Modify Scheduling Order filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc. Reply Suggestions due by 8/12/2004. (Attachments: # 1)(Related document(s) 37 ) (Anderson, Denise) (Entered: 07/28/2004)
51 CERTIFICATE OF SERVICE by Wal-Mart Inc Third Supplement to Defendant's Response to Plaintiff EEOC's First Request for Production of Documents and Things to Defendant filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 07/30/2004)
52 CERTIFICATE OF SERVICE by Wal-Mart Inc Third Supplement to Defendant's Response to Plaintiff EEOC's First Interrogatories to Defendant filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 07/30/2004)
***Remark - Original Document #53 (NOTICE of filing by Equal Employment Opportunity Commission First Amended Request for Entry Upon Land for Inspection) has been deleted. Said pleading is a motion and is to be re-filed using the correct event code. (McDowell, Shelly) (Entered: 08/02/2004)
53 Amended MOTION for order For Entry Upon Land For Inspection filed by Andrea Taylor on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 8/17/2004 (Taylor, Andrea) Terminated 8/9/04 (Diefenbach, Tracy). (Entered: 08/02/2004)
54 Designation of Expert Testimony by Equal Employment Opportunity Commission (Attachments: # 1 Notice of Exhibit Attachment)(Taylor, Andrea) Modified on 8/3/2004 to edit docket title and acknowledge receipt of exhibits in

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08/02/2004 08/02/2004 08/02/2004 08/02/2004 08/03/2004 08/03/2004 08/04/2004 08/04/2004 08/05/2004 08/12/2004
08/16/2004

Clerk's office (one copy) (McDowell, Shelly). (Entered: 08/02/2004)
55 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's Response to Plaintiff EEOC's First Request for Admissions to Defendant filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 08/02/2004)
56 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's Response to Plaintiff EEOC's Second Request for Production of Documents and Things to Defendant filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 08/02/2004)
57 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's Response to Plaintiff EEOC's Second Request for Production of Documents and Things to Defendant filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 08/02/2004)
58 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's Response to Plaintiff EEOC's Second Interrogatories to Defendant filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 08/02/2004)
59 MOTION to seal document filed by Andrea Taylor on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 8/18/2004 (Taylor, Andrea) (Entered: 08/03/2004)
60 NOTICE to take deposition of Michael Katz filed by Denise M Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 08/03/2004)
61 ORDER granting 59 motion to seal document 54 Notice of filing. Signed by Judge Gary A. Fenner on 8/4/04. (Mitchell, Lisa) (Entered: 08/04/2004)
62 NOTICE of change of address by Denise M Anderson (Anderson, Denise) (Entered: 08/04/2004)
63 SUGGESTIONS in opposition re 46 MOTION for protective order filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission. Reply Suggestions due by 8/20/2004. (Related document(s) 46 ) (Baran, Andrea) (Entered: 08/05/2004)
64 REPLY SUGGESTIONS to motion re 37 MOTION for order Modify Scheduling Order filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit A - Second Supplemental Interrogatory Responses# 2 Exhibit B - Third Supplemental Interrogatory Responses# 3 Exhibit C - Third Supplemental Responses to Doc Rq# 4 Exhibit D - Declaration of Andrea G. Baran# 5 Exhibit E - 7/12/04 Letter of Andrea G. Baran# 6 Exhibit F - 7/14/04 Letter of Denise M. Anderson)(Related document(s) 37 ) (Baran, Andrea) (Entered: 08/12/2004)
65 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's First Request for Production of Documents to Steve Bradley filed by Denise M. Anderson on

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08/19/2004 08/20/2004 08/20/2004 08/23/2004
08/30/2004
09/13/2004 09/15/2004 09/29/2004 09/29/2004 10/15/2004 10/15/2004 10/15/2004

behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 08/16/2004)
66 CERTIFICATE OF SERVICE by Wal-Mart Inc Response and Objections to Plaintiff EEOC's First Amended Request for Entry Upon Land for Inspection filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 08/19/2004)
67 CERTIFICATE OF SERVICE by Wal-Mart Inc of Defendant Wal-Mart's Response to Plaintiff EEOC's Second Request for Admissions to Defendant filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 08/20/2004)
68 REPLY SUGGESTIONS to motion re 46 MOTION for protective order filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc. (Related document(s) 46 ) (Anderson, Denise) (Entered: 08/20/2004)
69 MOTION for protective order Regarding Plaintiff's Rule 34 Request for Entry upon Land for Inspection filed by Denise M. Anderson on behalf of Wal-Mart Inc Suggestions in opposition/response due by 9/7/2004 (Attachments: # 1 # 2)(Anderson, Denise) Terminated on 9/9/2004 (Diefenbach, Tracy). (Entered: 08/23/2004)
70 TRANSCRIPT of proceedings held on 07/22/04 before Judge Gary A. Fenner. Court Reporter: Cynthia M. Johnson. This is a text entry only - no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (McDowell, Shelly) (Entered: 08/31/2004)
71 NOTICE to take deposition of Steve E. Bradley, Jr. filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 09/13/2004)
72 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission filed by Andrea Taylor on behalf of Plaintiff Equal Employment Opportunity Commission.(Taylor, Andrea) (Entered: 09/15/2004)
73 NOTICE to take deposition of Dr. Daljeet Singh filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 09/29/2004)
74 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission filed by Andrea Taylor on behalf of Plaintiff Equal Employment Opportunity Commission.(Taylor, Andrea) (Entered: 09/29/2004)
75 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission filed by Andrea Taylor on behalf of Plaintiff Equal Employment Opportunity Commission.(Taylor, Andrea) (Entered: 10/15/2004)
76 ORDER extending discovery deadline to 12/17/04 and extending dispositive motion deadline to 1/17/05. Signed by Judge Gary A. Fenner on 10/15/04. (Mitchell, Lisa) (Entered: 10/15/2004)
77 LETTER to counsel from Judge Gary A. Fenner regarding deliberate process

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10/18/2004 10/19/2004 10/19/2004
10/21/2004 10/26/2004 10/28/2004 10/29/2004 11/09/2004
11/15/2004 11/17/2004 11/18/2004 11/18/2004

privilege. (Mitchell, Lisa) (Entered: 10/15/2004)
78 NOTICE to take deposition of James M. Mays, M.D. filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 10/18/2004)
79 Amended NOTICE to take deposition of James M. Mays, M.D. filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 10/19/2004)
80 MOTION to clarify filed by Andrea G. Baran on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 11/3/2004 unless otherwise directed by the court (Attachments: # 1 Exhibit A - Plaintiff's Objections to Defendant's First Request for Production of Documents)(Baran, Andrea) (Entered: 10/19/2004)
81 ORDER granting 80 motion to clarify. Signed by Judge Gary A. Fenner on 10/21/04. (Mitchell, Lisa) (Entered: 10/21/2004)
82 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Daljeet R. Singh, M.D. (Sullivan, Tanya) (Entered: 10/28/2004)
83 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission Fourth Request for Production of Documents filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 10/28/2004)
84 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's Response to Plaintiff EEOC's Third Request for Production of Documents and Things to Defendant and Defendant's Privilege Log filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 10/29/2004)
85 CERTIFICATE OF SERVICE by Wal-Mart Inc of Defendant's First Interrogatories, Defendant's First Request for Tangible Evidence and Defendant's Second Request for Production of Documents filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 11/09/2004)
86 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's First Request for Admissions to Plaintiff filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 11/15/2004)
87 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission Third Interrogatories and Fifth Request for Production of Documents filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 11/17/2004)
89 NOTICE to take deposition of Michael Dreiling filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 11/18/2004)
90 NOTICE to take deposition of Dr. Chris Fevurly filed by Andrea G. Baran on

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11/18/2004 11/19/2004 11/23/2004 11/23/2004 11/23/2004 11/29/2004 12/07/2004 12/10/2004 12/14/2004 12/16/2004 12/16/2004 12/16/2004

behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 11/18/2004)
91 NOTICE to take deposition of MIchael Katz filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 11/18/2004)
***Remark - Original Document #88 (Joint MOTION for extension of time to submit experts reports and take expert depositions filed by Denise M. Anderson on behalf of Wal-Mart Inc) has been deleted. Pleading will be refiled to exclude the proposed order. (McDowell, Shelly) (Entered: 11/19/2004)
***Remark - Original Document #92 (Joint MOTION for extension of time to Submit Expert Reports and Take Expert Depositions filed by Denise M. Anderson on behalf of Wal-Mart Inc) An unexecuted order was filed, not the motion. (McDowell, Shelly) (Entered: 11/23/2004)
92 Joint MOTION for extension of time to submit expert reports and take expert depositions filed by Denise M. Anderson on behalf of Wal-Mart Inc Suggestions in opposition/response due by 12/8/2004 unless otherwise directed by the court (Anderson, Denise) (Entered: 11/23/2004)
93 ORDER granting 92 motion for extension of time. Signed by Judge Gary A. Fenner on 11/23/04. (Mitchell, Lisa) (Entered: 11/23/2004)
94 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's Response to Plaintiff's Fourth Request for Production of Documents to Defendant filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 11/29/2004)
95 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's Expert Designations and Reports filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 12/07/2004)
96 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission filed by Andrea Taylor on behalf of Plaintiff Equal Employment Opportunity Commission.(Taylor, Andrea) (Entered: 12/10/2004)
97 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission for Answers to Defendant's First Interrogatories filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 12/14/2004)
98 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission filed by Andrea Taylor on behalf of Plaintiff Equal Employment Opportunity Commission.(Taylor, Andrea) (Entered: 12/16/2004)
99 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's First Supplemental Response to Plaintiff's Fourth Request for Production filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 12/16/2004)
100 CERTIFICATE OF SERVICE by Wal-Mart Inc Defendant's Response to

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CM/ECF Western District of Missouri

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12/27/2004 12/28/2004 12/29/2004 01/07/2005 01/14/2005
01/18/2005 01/19/2005
01/20/2005 01/20/2005

Plaintiff's Third Interrogatories, Fifth Request for Production and Defendant's First Amended Privilege Log filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 12/16/2004)
101 MOTION for extension of time filed byAndrea G. Baran on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 1/11/2005 unless otherwise directed by the court (Baran, Andrea) (Entered: 12/27/2004)
102 NOTICE to take deposition of Janet Morgan filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission. (Attachments: # 1 Exhibit Exhibit A - Proof of Service of Subpoena)(Baran, Andrea) (Entered: 12/28/2004)
103 ORDER granting 101 motion for extension of time. Signed by Judge Gary A. Fenner on 12/29/04. (Mitchell, Lisa) (Entered: 12/29/2004)
104 TRANSCRIPT of Telephonic Proceedings held on 12/27/04 before Judge Gary A. Fenner. Court Reporter: Sandra D. Lamken. This is a text entry only - no document is attached. The transcript is available for review in the Clerk's Office. Please contact the court reporter listed above for copies. (McDowell, Shelly) (Entered: 01/07/2005)
105 MOTION for extension of time to File Motion for Summary Judgment and Motion to Amend Scheduling and Trial Order filed byDenise M. Anderson on behalf of Wal-Mart Inc Suggestions in opposition/response due by 1/31/2005 unless otherwise directed by the court (Anderson, Denise) Terminated on 1/21/2005. Orally ruled during 1/20/05 Telephone Conference. (Diefenbach, Tracy). (Entered: 01/14/2005)
106 ORDER finding as moot 37 motion to modify scheduling order. Signed by Judge Gary A. Fenner on 1/14/05. (Mitchell, Lisa) (Entered: 01/18/2005)
107 SUGGESTIONS in opposition re 105 MOTION for extension of time to File Motion for Summary Judgment and Motion to Amend Scheduling and Trial Order filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission. Reply suggestions due by 2/3/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit A - Declaration of Daljeet Singh# 2 Exhibit B - Declaration of Kent Jayne# 3 Exhibit Transcript of Proceedings dated 12-27-04# 4 Exhibit D - Declaration of Donna Harper# 5 Exhibit E - Letter from A Baran to D Anderson dated 1-13-05)(Related document(s) 105 ) (Baran, Andrea) (Entered: 01/19/2005)
Minute Entry for proceedings held before Judge Gary A. Fenner : TELEPHONE CONFERENCE held on 1/20/2005. THIS IS A TEXT ENTRY ONLY. (Court Reporter Libby Shinn.) (Diefenbach, Tracy) (Entered: 01/20/2005)
108 SCHEDULING ORDER: Pretrial Conference set for 9/2/2005 02:30 PM before Gary Fenner. Accelerated Jury Trial set for 10/3/2005 09:00 AM before Gary Fenner.Dispositive Motions due by 3/3/2005.. Signed by Judge Gary A. Fenner on 1/20/05. (Mitchell, Lisa) (Entered: 01/20/2005)

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CM/ECF Western District of Missouri

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01/20/2005
01/28/2005
02/01/2005 02/01/2005 02/01/2005 02/02/2005
02/04/2005
02/08/2005 02/08/2005 02/08/2005 02/14/2005

109 MOTION to strike "Direct Threat" Defense and Suggestions in Support filed byAndrea G. Baran on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 2/4/2005 unless otherwise directed by the court Suggestions in opposition/response due by 2/4/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit A - Notice of 30(b)(6) Deposition# 2 Exhibit B - Dep of 30(b)(6) Witness J Daugherty# 3 Exhibit C M Dreiling Expert Report# 4 Exhibit D - C Fevurly Expert Report# 5 Exhibit E - K Jayne Expert Report)(Baran, Andrea) (Entered: 01/20/2005)
110 MOTION to amend/correct Motion for Leave to Amend Answer filed byDenise M. Anderson on behalf of Wal-Mart Inc Suggestions in opposition/response due by 2/14/2005 unless otherwise directed by the court (Attachments: # 1 Amended Answer to Plaintiff's Second Amended Complaint)(Anderson, Denise) (Entered: 01/28/2005)
111 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Steve E. Bradley, Jr. (McDowell, Shelly) (Entered: 02/01/2005)
112 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Michael L. Katz (McDowell, Shelly) (Entered: 02/01/2005)
113 CERTIFICATE OF TRANSMISSION OF DEPOSITION of Michael L. Katz (McDowell, Shelly) (Entered: 02/01/2005)
114 CERTIFICATE OF SERVICE by Wal-Mart Inc Fourth Supplement to Defendant's Response to Plaintiff EEOC's First Request for Production of Documents and Things filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) Modified on 2/2/2005 to correct title of document in docket entry (Russel, Jeri). (Entered: 02/02/2005)
115 SUGGESTIONS in opposition re 109 MOTION to strike "Direct Threat" Defense and Suggestions in Support filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc. Reply suggestions due by 2/22/2005 unless otherwise directed by the court (Related document(s) 109 ) (Anderson, Denise) (Entered: 02/04/2005)
116 MOTION to continue Trial Setting filed byAndrea G. Baran on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 2/23/2005 unless otherwise directed by the court (Baran, Andrea) (Entered: 02/08/2005)
117 ORDER granting 116 motion to continue. Signed by Judge Gary A. Fenner on 2/8/05. (Mitchell, Lisa) (Entered: 02/08/2005)
118 AMENDED ORDER granting motion for continuance. Signed by Judge Gary A. Fenner on 2/8/05. (Mitchell, Lisa) (Entered: 02/08/2005)
119 SUGGESTIONS in opposition re 110 MOTION to amend/correct Motion for Leave to Amend Answer filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission. Reply suggestions due by 3/1/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit A - Jayne

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CM/ECF Western District of Missouri

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02/21/2005 02/24/2005 02/24/2005 02/25/2005 03/01/2005
03/03/2005 03/03/2005 03/04/2005
03/10/2005
03/11/2005 05/13/2005

Report# 2 Exhibit B - Jayne's Declaration# 3 Exhibit C - Fevurly Report)(Related document(s) 110 ) (Baran, Andrea) (Entered: 02/14/2005)
120 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES SECOND Amended Rule 26 Disclosures filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 02/21/2005)
121 ORDER re deposition of Kent Jayne. Signed by Judge Gary A. Fenner on 2/24/05. (Mitchell, Lisa) (Entered: 02/24/2005)
122 NOTICE to take deposition of Kent Jayne filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 02/24/2005)
Minute Entry for proceedings held before Judge Gary A. Fenner : TELEPHONE CONFERENCE held on 2/25/2005. THIS IS A TEXT ENTRY ONLY. (Court Reporter Libby Shinn.) (Diefenbach, Tracy) (Entered: 02/25/2005)
123 REPLY SUGGESTIONS to motion re 110 MOTION to amend/correct Motion for Leave to Amend Answer filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc. (Related document(s) 110 ) (Anderson, Denise) (Entered: 03/01/2005)
124 MOTION for summary judgment filed byDenise M. Anderson on behalf of WalMart Inc Suggestions in opposition/response due by 4/5/2005 unless otherwise directed by the court (Anderson, Denise) (Entered: 03/03/2005)
125 SUGGESTIONS in support re 124 MOTION for summary judgment filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc. (Related document(s) 124 ) (Anderson, Denise) (Entered: 03/03/2005)
126 MOTION for summary judgment Revised Motion for Summary Judgment filed byDenise M. Anderson on behalf of Wal-Mart Inc Suggestions in opposition/response due by 4/6/2005 unless otherwise directed by the court (Anderson, Denise) Additional attachment(s) added on 3/4/2005 to include Notice Regarding Exhibit Attachment (McDowell, Shelly). (Entered: 03/04/2005)
127 Joint MOTION for protective order filed byAndrea Taylor on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 3/25/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit A)(Taylor, Andrea) (Entered: 03/10/2005)
128 PROTECTIVE ORDER. Signed by Judge Gary A. Fenner on 3/11/05. (Mitchell, Lisa) (Entered: 03/11/2005)
129 MOTION to strike Expert Testimony and Report of Dr. Daljeet Singh filed byDenise M. Anderson on behalf of Wal-Mart Inc Suggestions in opposition/response due by 5/31/2005 unless otherwise directed by the court Suggestions in opposition/response due by 5/31/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Appendix F# 7 Exhibit G# 8 Exhibit H)(Anderson, Denise)

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CM/ECF Western District of Missouri

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05/16/2005 05/16/2005
05/17/2005 05/24/2005 05/24/2005 05/25/2005 05/26/2005 06/14/2005 06/15/2005
06/29/2005

(Entered: 05/13/2005)
130 MOTION for leave to file excess pages filed byAndrea G. Baran on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 5/31/2005 unless otherwise directed by the court (Baran, Andrea) (Entered: 05/16/2005)
131 SUGGESTIONS in opposition to motion for summary judgment re 124 MOTION for summary judgment, 126 MOTION for summary judgment Revised Motion for Summary Judgment filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission. Reply suggestions due by 5/31/2005 unless otherwise directed by the court (Attachments: # 1 Notice of Exhibit Attachment Notice of Exhibit Attachment)(Related document(s) 124 , 126 ) (Baran, Andrea) Modified on 5/18/2005 to acknowledge receipt of exhibits in Clerk's office (McDowell, Shelly). (Entered: 05/16/2005)
132 ORDER granting 130 motion for leave to file excess pages. Signed by Judge Gary A. Fenner on 5/17/05. (Mitchell, Lisa) (Entered: 05/17/2005)
133 MOTION for extension of time to file response/reply in support of Defendant's Motion for Summary Judgment filed byDenise M. Anderson on behalf of WalMart Inc Suggestions in opposition/response due by 6/8/2005 unless otherwise directed by the court (Anderson, Denise) (Entered: 05/24/2005)
134 ORDER granting 133 motion for extension of time to file response/reply. Signed by Judge Gary A. Fenner on 5/24/05. (Mitchell, Lisa) (Entered: 05/24/2005)
135 MOTION for extension of time filed byAndrea Taylor on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 6/9/2005 unless otherwise directed by the court (Taylor, Andrea) (Entered: 05/25/2005)
136 ORDER granting 135 motion for extension of time. Signed by Judge Gary A. Fenner on 5/26/05. (Mitchell, Lisa) (Entered: 05/26/2005)
137 REPLY SUGGESTIONS to motion re 126 MOTION for summary judgment Revised Motion for Summary Judgment filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc. (Attachments: # 1 Exhibit BB)(Related document(s) 126 ) (Anderson, Denise) (Entered: 06/14/2005)
138 SUGGESTIONS in opposition re 129 MOTION to strike Expert Testimony and Report of Dr. Daljeet Singh filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission. Reply suggestions due by 6/30/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit A Singh Depo. Excerpts# 2 Exhibit B - Singh Report)(Related document(s) 129 ) (Baran, Andrea) (Entered: 06/15/2005)
139 MOTION to withdraw as attorney filed byAndrea Taylor on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 7/14/2005 unless otherwise directed by the court (Taylor, Andrea) (Entered:

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06/30/2005 06/30/2005 07/05/2005 08/12/2005 08/12/2005 08/18/2005
08/18/2005 09/02/2005
12/21/2005 02/21/2006 02/22/2006 02/22/2006

06/29/2005)
140 REPLY SUGGESTIONS to motion re 129 MOTION to strike Expert Testimony and Report of Dr. Daljeet Singh filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc. (Related document(s) 129 ) (Anderson, Denise) (Entered: 06/30/2005)
141 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission Amended Rule 26 Initial Disclosures filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 06/30/2005)
142 ORDER granting 139 motion to withdraw as attorney. Attorney Andrea Taylor terminated. Signed by Judge Gary A. Fenner on 7/5/05. (Mitchell, Lisa) (Entered: 07/05/2005)
143 ORDER granting 126 motion for summary judgment. Signed by Judge Gary A. Fenner on 8/12/05. (Mitchell, Lisa) (Entered: 08/12/2005)
144 CLERK'S JUDGMENT (Diefenbach, Tracy) (Entered: 08/12/2005)
145 MOTION for reconsideration re 143 Order on Motion for Summary Judgment filed byAndrea G. Baran on behalf of Equal Employment Opportunity Commission Suggestions in opposition/response due by 9/2/2005 unless otherwise directed by the court (Related document(s) 143 ) (Baran, Andrea) (Entered: 08/18/2005)
146 SUGGESTIONS in support re 145 MOTION for reconsideration re 143 Order on Motion for Summary Judgment filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission. (Related document(s) 145 ) (Baran, Andrea) (Entered: 08/18/2005)
147 SUGGESTIONS in opposition re 145 MOTION for reconsideration re 143 Order on Motion for Summary Judgment filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc. Reply suggestions due by 9/19/2005 unless otherwise directed by the court (Attachments: # 1 Exhibit)(Related document(s) 145 ) (Anderson, Denise) (Entered: 09/02/2005)
148 ORDER denying 145 motion for reconsideration Signed by Judge Gary A. Fenner on 12/21/05. (Mitchell, Lisa) (Entered: 12/21/2005)
149 NOTICE OF APPEAL as to 143 Order on Motion for Summary Judgment, 148 Order on Motion for Reconsideration, 144 Clerk's Judgment by Equal Employment Opportunity Commission. Filing fee $ 255. (Baran, Andrea) (Entered: 02/21/2006)
150 TRANSMISSION of Notice of Appeal and docket sheet to US Court of Appeals re 149 Notice of Appeal (Crespo, Wil) (Entered: 02/22/2006)
***Appeal Receipt of Notice of Appeal and supporting documents received by USCA on: Wed Feb 22 11:36:07 CST 2006 (Crespo, Wil) (Entered: 02/22/2006)

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CM/ECF Western District of Missouri

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03/01/2006 11/21/2006 02/14/2007
04/16/2007 04/17/2007 05/18/2007 06/04/2007
06/19/2007 07/06/2007

USCA Case Number from 8th Circuit Court of Appeals is 06-1583 for 149 Notice of Appeal filed by Equal Employment Opportunity Commission, Attorney's Appendix (3 copies) due 4/17/06. THIS IS A TEXT ENTRY ONLY - NO DOCUMENT IS ATTACHED. (Crespo, Wil) (Entered: 03/01/2006)
151 NOTICE of change of address by Denise M. Anderson (Anderson, Denise) (Entered: 11/21/2006)
152 USCA Judgment and/or Opinion as to 149 Notice of Appeal filed by Equal Employment Opportunity Commission This is a preliminary judgment and/or opinion of U.S. Court of Appeals; jurisdiction is not recovered until the Mandate is issued by the U.S Court of Appeals. The judgment of the district court in this cause is reversed and the cause is remanded to the district court for proceedings consistent with the opinion of this court. (Attachments: # 1)(Crespo, Wil) (Entered: 02/14/2007)
153 MANDATE of US COURT OF APPEALS as to 149 Notice of Appeal filed by Equal Employment Opportunity Commission with mandate issued on 4/16/07. (Crespo, Wil) (Entered: 04/16/2007)
154 ORDER SETTING TRIAL for March 31, 2008, at 9:00 am. Signed by Judge Gary A. Fenner on 4/17/07. (Mitchell, Lisa) (Entered: 04/17/2007)
155 MOTION to reopen case Motion to Reopen Discovery and Suggestions in Support filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 6/4/2007 unless otherwise directed by the court. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Anderson, Denise) (Entered: 05/18/2007)
156 SUGGESTIONS in opposition re 155 MOTION to reopen case Motion to Reopen Discovery and Suggestions in Support filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission. Reply suggestions due by 6/21/2007 unless otherwise directed by the court (Attachments: # 1 Exhibit A - Hicks Deposition Excerpts# 2 Exhibit B Plaintiff's Rule 26(a) Initial Disclosures# 3 Exhibit C - Sept. 25, 2001 Interview Notes# 4 Exhibit D - Bradley Deposition Excerpts# 5 Exhibit E - Fevurly Report# 6 Exhibit F - Bradley Declaration# 7 Exhibit G - Fevurly Deposition Excerpts)(Related document(s) 155 ) (Baran, Andrea) (Entered: 06/04/2007)
157 MOTION for extension of time to file response/reply in support of Motion to Reopen Discovery filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 7/5/2007 unless otherwise directed by the court. (Anderson, Denise) (Entered: 06/19/2007)
158 REPLY SUGGESTIONS to motion re 155 MOTION to reopen case Motion to Reopen Discovery and Suggestions in Support filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F)(Related document(s) 155 ) (Anderson, Denise) (Entered: 07/06/2007)

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CM/ECF Western District of Missouri

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07/16/2007 09/19/2007 09/26/2007 10/31/2007 01/17/2008 02/07/2008 02/11/2008 02/11/2008 02/14/2008 02/14/2008
02/14/2008
02/14/2008

159 ORDER granting 157 motion for extension of time to file response/reply re 155 MOTION to reopen case Motion to Reopen Discovery and Suggestions in Support Signed by Judge Gary A. Fenner on 7/16/07. (Mitchell, Lisa) (Entered: 07/16/2007)
160 NOTICE of appearance by Cathy J. Dean on behalf of Wal-Mart Inc (Dean, Cathy) (Entered: 09/19/2007)
161 ORDER setting final pretrial conference for 2/28/08 at 10:00 am. Signed by Judge Gary A. Fenner on 9/26/07. (Mitchell, Lisa) (Entered: 09/26/2007)
162 ORDER denying 155 motion to reopen case Signed by Judge Gary A. Fenner on 10/31/07. (Mitchell, Lisa) (Entered: 10/31/2007)
163 CERTIFICATE OF SERVICE by Equal Employment Opportunity Commission Supplemental Discovery Responses filed by Andrea G. Baran on behalf of Plaintiff Equal Employment Opportunity Commission.(Baran, Andrea) (Entered: 01/17/2008)
164 CERTIFICATE OF SERVICE OF INITIAL RULE 26 DISCLOSURES Third Amended Rule 26(a)(1) Initial Disclosures filed by Denise M. Anderson on behalf of Defendant Wal-Mart Inc.(Anderson, Denise) (Entered: 02/07/2008)
165 Notice of Inclusion - 2008 Spring Civil Accelerated Docket. (Jones, Robin) (Entered: 02/11/2008)
166 NOTICE of appearance by Barbara A. Seely on behalf of Equal Employment Opportunity Commission (Seely, Barbara) (Entered: 02/11/2008)
167 Omnibus MOTION in limine filed by Denise M. Anderson on behalf of WalMart Inc. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Anderson, Denise) (Entered: 02/14/2008)
168 MOTION in limine and Suggestions in Support to Limit Evidence of Job Descriptions and Essential Functions to Greeter and Cashier Positions filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Anderson, Denise) (Entered: 02/14/2008)
169 MOTION in limine and Suggestions in Support to Exclude Evidence That Steven Bradley Attempted to Mitigate His Damages filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Anderson, Denise) (Additional attachment(s) added on 2/15/2008: to replace main document that was inadvertently filed with the wrong document # 3 Main Document) (McDowell, Shelly). (Entered: 02/14/2008)
170 MOTION in limine and Suggestions in Support to Preclude the Use of the Corporation's Deposition to Impeach an Individual Fact Witness filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Anderson, Denise)

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02/14/2008 02/14/2008 02/14/2008 02/14/2008 02/14/2008 02/14/2008 02/14/2008 02/14/2008 02/15/2008

(Entered: 02/14/2008)
171 MOTION in limine and Suggestions in Support to Exclude Investigator's Notes of Interview With Maxine Hicks and Preclude the Use of Notes as Impeachment Evidence filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Anderson, Denise) (Entered: 02/14/2008)
172 MOTION in limine and Suggestions in Support to Exclude EEOC Investigative Documents and Findings filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Anderson, Denise) (Entered: 02/14/2008)
173 MOTION in limine and Suggestions in Support to Preclude Plaintiff From Referring to Defendant by Improper Names or From Referring to Defendant By Reputation filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Anderson, Denise) (Entered: 02/14/2008)
174 MOTION in limine and Suggestions in Support to Exclude Evidence of Any Consent Decrees and Current or Past Lawsuits or Actions Against Wal-Mart filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Anderson, Denise) (Entered: 02/14/2008)
175 MOTION in limine and Suggestions in Support to Exclude Evidence Regarding Defendant's Financial Status filed by Denise M. Anderson on behalf of WalMart Inc. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Anderson, Denise) (Entered: 02/14/2008)
176 MOTION in limine to exclude direct threat defense filed by Andrea G. Baran on behalf of Equal Employment Opportunity Commission. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Baran, Andrea) (Entered: 02/14/2008)
177 MOTION in limine to exclude evidence regarding Steve Bradley's job performance at other employers filed by Andrea G. Baran on behalf of Equal Employment Opportunity Commission. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Baran, Andrea) (Entered: 02/14/2008)
178 DESIGNATION of Deposition Testimony by Equal Employment Opportunity Commission. (Baran, Andrea) (Entered: 02/14/2008)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 02/14/08 as Document No. 169, MOTION in limine and Suggestions in Support to Exclude Evidence That Steven Bradley Attempted to Mitigate His Damages filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 2/29/2008 unless otherwise directed by the court. (Attachments: # 1 Exhibit A, # 2 Exhibit B). The document has

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been deleted as the incorrect document was filed. The correct document has replaced the incorrect document. This is a text entry only - no document is attached. (McDowell, Shelly) (Entered: 02/15/2008)
179 Joint MOTION to stay Notice of Settlement and Motion to Remove Case from Trial Docket and Stay Filing of Trial Submissions filed by Andrea G. Baran on behalf of Equal Employment Opportunity Commission. Suggestions in opposition/response due by 3/5/2008 unless otherwise directed by the court. (Baran, Andrea) (Entered: 02/19/2008)
180 ORDER granting 179 motion to stay Signed by District Judge Gary A. Fenner on 2/20/08. (Mitchell, Lisa) (Entered: 02/20/2008)
181 Joint MOTION to stay (to Extend Stay of Filing of Trial Submissions) filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 3/26/2008 unless otherwise directed by the court. (Anderson, Denise) (Entered: 03/11/2008)
182 ORDER granting 181 motion to stay Signed by District Judge Gary A. Fenner on 3/12/08. (Mitchell, Lisa) (Entered: 03/12/2008)
183 Joint MOTION for extension of time (Parties' Notice of Agreement in Principle and Joint Motion to Extend Stay of Filing of Trial Submissions) filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 4/10/2008 unless otherwise directed by the court. (Anderson, Denise) (Entered: 03/26/2008)
184 ORDER granting 183 motion to extend stay of filing of trial submissions. Signed by District Judge Gary A. Fenner on 3/27/08. (Mitchell, Lisa) (Entered: 03/27/2008)
185 MOTION for extension of time (Notice of Final Agreement and Unopposed Motion to Extend Stay of Filing of Trial Submissions) filed by Denise M. Anderson on behalf of Wal-Mart Inc. Suggestions in opposition/response due by 4/25/2008 unless otherwise directed by the court. (Anderson, Denise) (Entered: 04/10/2008)
186 ORDER granting 185 motion for extension of time Signed by District Judge Gary A. Fenner on 4/11/08. (Mitchell, Lisa) (Entered: 04/11/2008)
187 Joint MOTION for consent judgment Joint Motion for Entry of Consent Decree filed by Andrea G. Baran on behalf of Equal Employment Opportunity Commission. Suggestions in opposition/response due by 5/2/2008 unless otherwise directed by the court. (Baran, Andrea) Modified on 4/17/2008 to remove signature line for Judge from the proposed consent decree (McDowell, Shelly). (Entered: 04/17/2008)
NOTICE OF DOCKET MODIFICATION. A modification has been made to remove the signature line for the Judge from the proposed Consent Decree attached to the document filed on 04/17/08 as Document No. 187, Joint MOTION for consent judgment Joint Motion for Entry of Consent Decree filed

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by Andrea G. Baran on behalf of Equal Employment Opportunity Commission. Suggestions in opposition/response due by 5/2/2008 unless otherwise directed by the court. (Attachments: # 1 Exhibit A - Proposed Consent Decree) (Related Document 187 ) This is a text entry only - no document is attached. (McDowell, Shelly) (Entered: 04/17/2008)
188 CONSENT JUDGMENT Signed by District Judge Gary A. Fenner on 4/18/08. (Mitchell, Lisa) (Entered: 04/18/2008)

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 06-1583 Docket

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General Docket Eighth Circuit Court of Appeals

Court of Appeals Docket #: 06-1583

Filed: 02/24/2006

Nsuit: 1442 Jobs

Termed: 02/13/2007

EEOC v. Wal-Mart Stores

Appeal From: U.S. District Court for the Western District of Missouri - Kansas City

Case Type Information: 1) Civil 2) United States as a party 3) null

Originating Court Information: District: 0866-4 : 4:04-cv-00076-GAF Court Reporter: Cynthia Johnson, Court Reporter Court Reporter: Sandra Lamken, Court Reporter Court Reporter: Elizabeth Shinn, Court Reporter Trial Judge: Gary A. Fenner, U.S. District Judge Date Filed: 01/20/2004 Date Order/Judgment: 12/21/2005

Date NOA Filed: 02/21/2006

Prior Cases: None

Current Cases: None

Equal Employment Opportunity Commission Plaintiff - Appellant

Andrea G. Baran Direct: 913-551-6647 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 400 State Avenue Suite 905 Kansas City, KS 66101-0000
Donna L. Harper Direct: 314-539-7800 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce Room 8.100, Robert A. Young Federal Building St. Louis, MO 63103-0000

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v.
Wal-Mart Stores, INC. Defendant - Appellee

Robert G. Johnson Direct: 314-539-7949 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION St. Louis District Office 1222 Spruce Room 8.100, Robert A. Young Federal Building St. Louis, MO 63103-0000
Barbara L. Sloan Direct: 202-663-4736 [COR LD NTC Government] EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Headquarters Firm: 202-663-4900 1801 L Street, N.W. Washington, DC 20507-0000
Denise Anderson Direct: 816-360-4345 [COR LD NTC Retained] POLSINELLI & SHALTON 700 W. 47th Street Suite 1000 Kansas City, MO 64112-0000

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Plaintiff - Appellant

v. WAL-MART STORES, INC.
Defendant - Appellee

02/24/2006 02/24/2006

Civil Case Docketed. Dist. Ct. Office: Kansas City, Missouri
CERTIFIED copies notice of appeal, docket entries, orders dated 8/12/05; 12/21/05. [06-1583] [2013605]

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02/24/2006 03/08/2006 03/10/2006 03/13/2006 04/12/2006 04/12/2006 04/28/2006 05/02/2006 05/12/2006 05/12/2006 05/26/2006 06/01/2006 06/06/2006
06/07/2006 07/17/2006 07/17/2006 07/18/2006 07/18/2006 07/25/2006 07/27/2006 08/21/2006 10/13/2006

BRIEFING SCHEDULE: [06-1583] Transcript due on 4/5/06 Apndx due on 4/17/06 Aplnt brief due on 4/17/06 Aplee brief due on 5/17/06 reply brief due on 5/31/06
APPEARANCE for appellant, attorney Barbara L. Sloan [06-1583] [2018311]
APPEARANCE for appellee, attorney Denise M. Anderson [06-1583] [2019741]
Corporate Disclosure Statement filed. Filed by Wal-Mart Stores FOR CAL.
MOTION of aplnt, EEOC, for extension of time to file brief until 5/1/06 . [06-1583] [2032145], w/service 4/10/06
ORDER filed:granting appellant's motion for extension of time to file brief [2032145-1] [2032148] Aplnt brief now due on 5/1/06 .
MOTION of aplnt, EEOC, for extension of time to file brief until 5/15/06 . [06-1583] [2040075] w/service 4/28/06
ORDER filed:granting appellant's motion for extension of time to file brief [2040075-1] [2040077] Aplnt brief now due on 5/15/06 .
BRIEF FILED - Brief of Appellant- EEOC 13,774 words w/addendum 10 copies w/service 5/10/06 w/diskette . [06-1583] [2046849]
RECORDS received: Appendix filed by Appellant EEOC consisting of 1 Volume, 3 Copies. [06-1583]
MOTION of aplee, Wal-Mart Stores , for extension of time to file brief until 7/12/06 . [06-1583] [2052488] w/service 5/26/06
RESPONSE of aplnt, EEOC, to appellee's motion extension of time to file brief filed by Wal-Mart Stores [2052488-1] [2052491] .
ORDER filed: Appellee's request for an extension of time is granted, and appellee's brief is granted to July 12, 2006. Appellant may move for an extension of time for its reply brief if this new due date creates a scheduling conflict. [2052488-1] [2052496]
REPLY filed by Wal-Mart Stores regarding their motion for extention of time. [06-1583]
BRIEF FILED - Brief of Appellee - Wal-Mart Stores. 10,515 words - 10 copies w/service 7/12/06 . w/cd [06-1583] [2068616]
RECORDS received: Appendix filed by Appellee Wal-Mart Stores consisting of 1 Volume, 3 Copies. [06-1583]
MOTION of aplnt, EEOC, for extension of time to file reply brief until 8/18/06 . [06-1583] [2068637] w/service 7/18/06
ORDER filed: granting appellant's motion extension of time to file reply brief. [2068637-1] [2068640] Reply brief now due on 8/18/06 .
TO SCREENING to rw. [06-1583]
RETURNED from Screening (20) [06-1583]
BRIEF FILED - Reply brief - EEOC . 4,794 words 10 copies - w/service 8/18/06 . w/diskette [06-1583] [2080669]
*SET FOR ARGUMENT* - November in St. Louis.

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11/16/2006 02/13/2007 02/13/2007 04/16/2007

ARGUED AND SUBMITTED IN ST. LOUIS TO JUDGES William J. Riley, David R. Hansen, Lavenski R. Smith . Barbara L. Sloan for Appellant EEOC . Denise M. Anderson for Appellee Wal-Mart Stores . Rebuttal by: Barbara L. Sloan . RECORDED. [06-1583]
OPINION FILED - THE COURT: WILLIAM JAY RILEY ; DAVID R. HANSEN ; LAVENSKI R. SMITH. Lavenski R. Smith, Authoring Judge (PUBLISHED) [3278252] [06-1583]
JUDGMENT FILED - The judgment of the originating court is REVERSED and REMANDED in accordance with the opinion. WILLIAM JAY RILEY ; DAVID R. HANSEN ; LAVENSKI R. SMITH [3278268] [06-1583]
MANDATE ISSUED. [06-1583]

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 Appeals Court Orders Trial Of EEOC Disability Suit Against Wal-Mart

http://www.eeoc.gov/press/2-13-07.html

The U.S. Equal Employment Opportunity Commission
FOR IMMEDIATE RELEASE February 13, 2007

CONTACT: Robert G. Johnson Regional Attorney (314) 539-7910
Andrea G. Baran Senior Trial Attorney (913) 551-5848
Barbara Seely Supervisory Trial Attorney (314) 539-7914

APPEALS COURT ORDERS TRIAL OF EEOC DISABILITY SUIT AGAINST WAL-MART
Eighth Circuit Says Lower Court Erred in Dismissing Case
KANSAS CITY, Mo. – The U.S. Court of Appeals for the Eighth Circuit today ruled that the U.S. Equal Employment Opportunity Commission (EEOC) may continue its disability discrimination lawsuit against Wal-Mart Stores, Inc. (EEOC v. Wal-Mart Stores, Inc., Case No. 06-1583), reversing a lower court’s dismissal of the case.
The EEOC filed suit against Wal-Mart in January 2004 on behalf of Steve Bradley, who has cerebral palsy and uses a wheelchair, after the Wal-Mart store in Richmond, Mo., refused to hire Bradley for any position, including greeter or cashier. A federal judge in U.S. District Court for the Western District of Missouri granted summary judgment to the company in August 2005, finding that the EEOC had not presented sufficient evidence from which a jury could reach a verdict in Bradley’s favor. The EEOC then filed an appeal that led to today’s ruling.
The decision issued today reversed the lower court ruling and held that the EEOC did present sufficient evidence from which a jury could find that Bradley was qualified to perform the essential functions of greeter and cashier jobs at Wal-Mart. The Eighth Circuit also held that there was sufficient evidence from which a jury could find that Wal-Mart lied about its reasons for not hiring Bradley in order to hide discrimination, and that Wal-Mart failed to prove, as it claimed, that Bradley would pose a “direct threat” to the health and safety of himself or others by working at the store.
Today’s ruling is especially significant because it is the first time the Eighth Circuit has decided the issue of whether the employer or the employee bears the burden of proof when the employer claims that the employee poses a “direct threat.” The court stated that the burden lies with the employer.
“This decision properly leaves it up to the jury to decide whether Wal-Mart discriminated against Mr. Bradley because of his disability,” said Robert Johnson, regional attorney of the EEOC’s St. Louis District. “This man was very well qualified to work at Wal-Mart, but the company tried to cover up its discrimination. We look forward to presenting this case to a jury as soon as possible.”
The EEOC is responsible for enforcing federal laws prohibiting employment discrimin¬ation based on race, color, gender (including sexual harassment and pregnancy), religion, national origin, age, disability and retaliation. Further information about the EEOC is available on its web site at www.eeoc.gov.
This page was last modified on February 16, 2007.

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 477 F.3d 561 (2007)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v.
WAL-MART STORES, INC., Appellee.
No. 06-1583.
United States Court of Appeals, Eighth Circuit.
Submitted: November 16, 2006. Filed: February 13, 2007.
562 *562 Barbara L. Sloan, argued, EEOC, Washington, D.C., for appellant.
Denise M. Anderson, argued, Kansas City, MO, for appellee.
Before RILEY, HANSEN, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
The Equal Employment Opportunity Commission (EEOC) brought this action against Wal-Mart Stores, Inc. ("WalMart"), alleging that Wal-Mart violated the Americans with Disabilities Act (ADA). The EEOC contends that WalMart improperly refused to hire Steven Bradley because of mobility limitations caused by cerebral palsy. The district court granted Wal-Mart's motion for summary judgment, concluding that (1) Bradley's impairment rendered him unqualified for the positions of greeter and cashier and that (2) insufficient evidence existed from which a reasonable factfinder could conclude that Wal-Mart's reasons for not hiring Bradley were pretextual. We hold that material facts remain in dispute and therefore reverse.
563 *563 I. Background
We recite the facts in the light most favorable to the EEOC, the nonmoving party. Cerebral palsy limits Bradley's use of his legs. The condition forces Bradley to use forearm crutches for short-distance walks and a wheelchair for longer distances. Standing for more than 10 to 15 minutes is also difficult for him. With support, however, Bradley can walk, climb stairs, and get on and off of a stool 0907albeit slowly. Bradley's condition also restricts his third and fourth fingers, as they generally work as a unit and preclude him from using his fourth finger, for example, when typing. His limited hand dexterity, however, does not limit his ability to write, hold things, or complete "daily living" tasks, such as carrying laundry or groceries or doing his own housekeeping. Bradley's grip strength is normal, and his arm strength allows him to lift heavy objects even from his wheelchair.
Bradley applied for a "Greeter/Customer Assistant" position at his local Wal-Mart in July 2000 while he was employed as a proofreader at Banta Publishing, Inc ("Banta").[1] On his application, Bradley indicated that he was seeking part-time employment, was willing to work from 4:30 p.m. until close during the weekdays, and stated that working on weekends was "negotiable." In response to a question on the July 2000 application asking whether Wal-Mart could contact Bradley's current employer, Bradley checked "no," explaining that his employer would fire him if it found out that he was seeking part-time work. Wal-Mart did not hire Bradley in July 2000.
In early 2001, Wal-Mart expanded its store in Richmond, Missouri, into a Supercenter, which required it to hire additional employees. Wal-Mart received hundreds of applications for the new positions. To facilitate the hiring process, Wal-Mart created a hiring committee, comprised of several new managers, including Maxine Hicks, to assist in conducting interviews and reviewing applications. The committee screened applications based primarily on work history and availability. If an application made it past the initial screening process, a member of the committee would schedule an interview. The committee member who interviewed the applicant, however, was not necessarily the member who screened the application.

After the initial interview, if the committee member considered the applicant a potential hire, he or she would place the applicant's application in a pile so that the applicant's references could be checked. Store Manager David Penny normally made all hiring decisions. However, during the transition to a Supercenter, Personnel Manager Janet Daugherty made the hiring decisions, including whether to conduct a second interview based on the recommendations of the committee member who conducted the initial interview.

In February 2001, Bradley submitted an application to work at the Wal-Mart Supercenter. On the application, he indicated that he was applying for the position of "Associate/Any Department," was seeking full-time or part-time employment, and was willing to work from 4:00 p.m. to 10:00 p.m. every evening, including Saturday and Sunday. Bradley's application indicated that he had completed two years of college. Bradley's employment history showed that he currently worked at Banta as a proofreader and that he had previously worked at Ray County Fellowship as an administrator. Bradley did not answer the application question asking whether Wal-Mart could contact his employer.

564 *564 Based on his application and resume, Bradley was called in for an interview. He arrived for the interview in his wheelchair, and Hicks conducted the interview. Hicks questioned Bradley about his physical ability to work from his wheelchair and told him that she thought he was "best suited for a greeter job."

The Wal-Mart store did not hire Bradley; however, the parties dispute who actually made the decision not to hire Bradley. The EEOC cites EEOC Investigator Michael Katz's interview notes to support its position that a factual dispute exists as to whether Hicks or Daugherty made the decision. In his interview notes, Katz wrote that Hicks indicated that the "primary reason" for not hiring Bradley was "the absence of a history of job stability," and a "secondary factor" in "her decision" was "limits on his availability" because working weekends was "negotiable." In her deposition, however, Hicks stated that she had "no idea" why Bradley was not hired. In contrast, Daugherty testified that she was the decisionmaker who decided not to hire Bradley for a position. Wal-Mart maintains, based on Daugherty's statement, that Daugherty, not Hicks, made the decision not to hire Bradley.

In her deposition, when asked why Wal-Mart did not hire Bradley after his February 2001 application, Daugherty testified that Bradley was not hired for a position based on "a lot of factors." She stated that the "main reason" that Bradley was not hired was because of his job history, as she was personally aware of short-term jobs that Bradley had held in their "small town" that he failed to list on his application. Those "short-term jobs" included Bradley working at a Texaco service station ("Texaco"), at Shirkey Leisure Acres ("Shirkey"), at Station Casino, and as a police dispatcher. When asked whether she had information that Bradley had worked at Texaco, Shirkey, Station Casino, and as a police dispatcher at the time she made the decision not to hire him, she responded, "I'm not0907I don't know." She said that she personally saw Bradley working at Texaco; however, she admitted that she was "not sure if in all honesty if he worked at Texaco before or after the application." (Emphasis added). She also admitted that she was unsure whether Bradley worked at Shirkey or Station Casino before or after she decided not to hire him.

Bradley, however, never worked at Station Casino; he only attended a six-week training course there. In addition, he started working at Shirkey in June 2001, after Wal-Mart rejected his application. Likewise, he began working for the Richmond Police Department as a police dispatcher in August 2001, after Wal-Mart rejected his application. Finally, Bradley only worked at Texaco for one day.[2]

In assessing Bradley's availability, Daugherty admitted that she conflated Bradley's July 2000 and February 2001 applications. She conceded that she "would hire him" with the availability listed on the February 2001 application. When asked why the availability listed on his February 2001 application was still a reason for not hiring him, she replied:

Because he was currently still employed at Banta. He was full-time there. So you figure 0907and this

is just my assumption on it. You figure he works approximately 40 hours a week there. What I was

looking for was that would fit that availability, that 4:30 to 10 would be a part-time person. You add

565

those hours *565 on and you're talking 60 hours a week. The availability wasn't there versus this

person's availability because they didn't have the full-time job. I felt like they could do it. I felt like

this would be a hardship. My opinion. Not that he indicated that. I mean I had come to that, my own conclusion there, that that would be a hardship. That didn't rule him out by any means.
(Emphasis added). With regard to his July 2000 application, Daugherty testified that, at the time that Bradley submitted his February 2001 application, she "remembered looking at [the July 2000] application" in which Bradley indicated that his hours were `negotiable' on "Saturday and Sunday." She said she did not "have time to fool with somebody that's negotiable." While she never pulled Bradley's July 2000 application, she stated that she remembered it when reviewing his February 2001 application. A further concern that Daugherty had, based on the July 2000 application, was Bradley's indication that Wal-Mart could not contact his then current employer, Banta, as a reference. Bradley, however, did not limit contact of his employer on his February 2001 application.
When asked whether there were any other reasons why she decided not to further process Bradley's application, Daugherty replied "yes" and stated:
"One [reason] was remember his0907the way he responded to associates in the store as a customer, typically at the return center. Also, we had loss prevention that were suspecting. Availability from a previous application which was before this time frame, but typically when someone puts down availability, they will do whatever they can to get their foot in the door, but typically they want to stick with that availability. At the time that we were hiring, his availability was limited from 4:30 to 10. We really needed people that had open availability that were able to work anytime, not that there couldn't have been an exception because there could have been. That's probably [all the reasons]."
In a subsequent affidavit, Daugherty maintained that she was the decisionmaker who decided not to hire Bradley for a position "based on his rather specific restrictions on available work hours, work experience, and lack of work experience directly working with the general public or in retail operations."
Bradley contacted the EEOC after seeing a news report about a Missouri man who had filed a disability discrimination claim against Wal-Mart. His intent in contacting the EEOC was to offer his services as a possible witness. After speaking with counsel for the EEOC, Bradley was directed to Investigator Katz. Katz interviewed Bradley and, based upon that conversation, drafted a Charge of Discrimination. The Charge of Discrimination alleged that Wal-Mart had denied Bradley employment based on his disability. Following an investigation into Bradley's charge, the EEOC filed the instant lawsuit on Bradley's behalf.
Wal-Mart moved for summary judgment, arguing that the EEOC failed to show that Bradley was qualified for any available position, including the greeter and cashier positions. Thus, Wal-Mart attempted to show that no genuine issue of fact existed as to whether Bradley was a qualified applicant for either the people greeter position or the cashier position.
According to Wal-Mart's 2001 "People Greeter Job Description," a greeter is required to welcome and assist customers as they enter the store; provide front-end security; ensure customer safety in the greeting area; 566 respond to electronic surveillance *566 alarms; open doors, whenever possible, for customers when appropriate, such as mothers with small children and the disabled; offer customers a shopping cart; provide customers with directions when asked; offer assistance to customers when appropriate, such as disabled customers; ensure that the entrance has safe floor conditions for customers; and keep the front entrance clean by, for example, promptly cleaning up spills. The "physical demands" of the position require the greeter to regularly stand, occasionally lift or move objects weighing up to 10 pounds, and perform tasks involving simple grasping; however, Wal-Mart will make "reasonable accommodations" to enable disabled individuals "to perform the essential job functions."
Wal-Mart's 2001 "Cashier Job Description" states that a cashier's "primary responsibilities" are providing excellent customer service by, for example, assisting customers with the bagging and loading of their merchandise; maintaining excellent productivity levels by scanning merchandise quickly and accurately; ensuring that safe work practices are followed by using proper lifting techniques and using the "power grip" when scanning merchandise; maintaining register security; utilizing the Customer Service Manager's help if necessary; and making change, cashing checks and issuing receipts to customers. The "physical demands" of the position require the cashier to regularly stand; use his or her hands to scan items and manually key prices on the register

keyboard; perform tasks involving firm grasping; have sufficient coordination; and frequently lift or move at least 10 and up to 50 pounds. Just as with the greeter position, Wal-Mart will reasonably accommodate disabled persons so that they can perform the essential job functions. For example, the Wal-Mart Resource Retention Guide suggests that a cashier using a wheelchair is a reasonable accommodation.[3]
In support of its motion, Wal-Mart relied on the expert testimony of Dr. Chris Fevurly. Based on an independent medical examination of Bradley, Dr. Fevurly opined that Bradley was not qualified to perform the essential functions of either job. Dr. Fevurly concluded that Bradley (1) cannot carry or move objects that require two hands, as he must use one arm at all times to support his weight while standing and both arms to walk with his crutches; (2) cannot operate a "push mower," meaning that he could not operate a "push/pull" device as Kent Jayne (EEOC expert) suggested; (3) must use his crutches to climb on and off stools and takes considerable time transitioning from a sitting to a standing position; (4) falls every other week in a controlled environment using his crutches, and his chances of falling would be "daily" in a retail environment; (5) cannot perform prolonged walking and standing, as required by the positions; (6) cannot perform squatting or crawling and could only kneel for five minutes or less; (7) can only perform occasional bending and stooping; and (8) has not attempted to perform 8-hour shifts or 40-hour work weeks.
In response, the EEOC's main expert, Vocational Rehabilitation Consultant Kent Jayne, concluded that Bradley, with reasonable accommodation, could work as a cashier or greeter and would not pose a "direct threat" in either 567 job. Because the job descriptions for both jobs required *567 "some mobility and standing," Jayne recommended a sit-to-stand wheelchair, an ergonomic drafting-type stool with armrests, a scooter stool, or a lightweight wheelchair as a reasonable accommodation. For the greeter job, Jayne opined that Bradley would not need an accommodation to verify payment with a handscanner or to move shopping carts or empty trash baskets, although he might do the latter two tasks more efficiently with an electric scooter or similar device. For the cashier job, Jayne recommended, inter alia, a sit-to-stand wheelchair, which would enable Bradley to be upright and reach out horizontally; a drafting-type high stool with armrests for additional balance, if needed; a wheelchair narrow enough to fit into the checkstand area; removing several inches of the divider to the right of the checkstand to accommodate a regular or electric wheelchair; supplying Bradley with a handscanner to scan prices on large objects; and installing a convex mirror to enable him to spot items under shopping carts. He suggested that, if Bradley used a wheelchair or electric scooter, he "would pose no greater danger than any customer in a wheelchair or electric scooter, both of which Wal-Mart provides to customers for use in their stores." Dr. Daljeet Singh, Bradley's treating physician, also testified that Bradley was in good health and could safely do the tasks involved in the greeter and cashier positions.
Wal-Mart's expert, Dr. Fevurly, questioned whether Bradley could safely balance while seated on the drafting-type stool that did not have armrests. He acknowledged, however, that there would be a decreased risk if Bradley used a wheelchair, conceding that Bradley is "very . . . stable in a wheelchair." He also stated that he did not have a "huge problem" with Bradley using a motorized scooter or similar device, as long as he was careful. He concluded, however, that based on his observation, Bradley would "have to be up on his feet" as a cashier and, while he could sometimes use a wheelchair as a greeter, he would still have to "get up and do tasks where he is standing probably somewhere between 35 and 40 percent of the time." But, he did admit that Bradley would need to bend over and pick up items only infrequently and that, using his wheelchair, Bradley can lift and carry heavy objects "in a nearly unlimited fashion."
A "Functional Capacity Assessment" conducted by Janet Morgan, Case Coordinator at Baptist-Lutheran Medical Center, revealed that Bradley was capable of "slow to moderate pace ambulation and stair climbing using canes" and "able to transition from sitting in a wheelchair to standing with crutch support safely over two days of testing" to "work overhead from a seat position, to kneel unsupported, and to perform modified materials handling activities while seated in a wheelchair." Morgan noted that Bradley demonstrated "improved function when allowed to modify activities to include wheelchair for mobility." Based on her assessment, she concluded that, without accommodation, Bradley could not perform the essential functions of the greeter and cashier positions. She indicated, however, that her conclusions "do not include consideration of possible task modifications or reasonable accommodation. Examples might include use of wheelchair for mobility or limited materials handling."

The district court granted Wal-Mart' s motion for summary judgment, finding that the EEOC failed to establish that Bradley was qualified to perform the essential functions of the greeter and cashier positions. The EEOC then 568 moved for reconsideration, and the district court denied *568 the motion, adding that summary judgment was also appropriate because the EEOC failed to present evidence that Wal-Mart's reasons for not hiring Bradley were pretextual.

II. Discussion

On appeal, the EEOC argues that the district court erred in finding that insufficient evidence existed to establish (1) that Bradley is "qualified" for the greeter and cashier positions and (2) that Wal-Mart's stated reasons for not hiring Bradley are pretextual.
In response, Wal-Mart asserts that the district court correctly granted summary judgment in its favor and also asserts an additional ground that the EEOC has failed to rebut Wal-Mart's evidence that Bradley would pose a "direct harm" to himself and others if he worked as a greeter or a cashier.
We review de novo the district court's grant of summary judgment to Wal-Mart. Wojewski v. Rapid City Reg'l Hosp., Inc., 450 F.3d 338, 342 (8th Cir.2006). "Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. (quotations and citation omitted).

A. Qualified To Perform Essential Functions

Where no direct evidence of discrimination exists, we evaluate ADA claims by the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Didier v. Schwan Food Co., 465 F.3d 838, 841 (8th Cir.2006). Under this framework, the plaintiff must first establish a prima facie case of discrimination: "that he has an ADA-qualifying disability; that he is qualified to perform the essential functions of his position, with or without a reasonable accommodation; and [that] he suffered an adverse action due to his disability." Id.

In the present case, neither party disputes that the first and third elements of the prima facie case have been established; therefore, the decisive issue is whether Bradley is "qualified" to perform the essential functions of the position, with or without reasonable accommodation.

"The determination of whether an individual is qualified for purposes of the ADA is a two-step process, and should be made as of the time of the employment decision." Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1047 (8th Cir.1999). First, we consider whether "the individual possesses the requisite skills, education, certification or experience necessary for the job." Id. Second, we consider "whether the individual can, despite [his] impairments, perform the essential functions of the job either with or without reasonable accommodation." Id.

Under the second inquiry, "[a]n essential function `means the fundamental job duties of the employment position the individual with a disability holds or desires. The term `essential functions' does not include the marginal functions of the position.'" Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th Cir.1998) (quoting 29 C.F.R. § 1630.2(n)(1)). While the plaintiff bears the burden of ultimately proving that he is "qualified," "an employer who disputes the plaintiff's claim that he can perform the essential functions must put forth evidence establishing those functions." Maziarka v. Mills Fleet Farm, Inc., 245 F.3d 675, 680 (8th Cir.2001). The following evidence may be used to establish an "essential function" of a job:

(1) "[t]he employer's judgment as to which functions are essential"; (2) "[w]ritten job descriptions

569

prepared before advertising or interviewing applicants *569 for the job"; (3) "the amount of time

spent on the job performing the function"; (4) "the consequences of not requiring the incumbent to

perform the function"; and (5) "the current work experience of incumbents in similar jobs."

Moritz, 147 F.3d at 787 (quoting 29 C.F.R. § 1630.2(n)(3)).
"[I]f the employee cannot perform the essential functions of the job without an accommodation, he must only make a `facial showing that a reasonable accommodation[4] is possible . . .'" Fenney v. Dakota, Minn. & E.R.R. Co., 327 F.3d 707, 712 (8th Cir.2003) (alterations and emphasis in original) (quoting Benson v. N.W. Airlines, Inc., 62 F.3d 1108, 1112 (8th Cir.1995)). "[O]nce the plaintiff makes a facial showing that reasonable accommodation is possible, the burden of production shifts to the employer to show that it is unable to accommodate the employee." Benson, 62 F.3d at 1112 (emphasis in original) (internal quotations and citation omitted). If the employer demonstrates that the plaintiff is unable to perform the "essential functions of the job even with reasonable accommodation," the plaintiff must then rebut that showing "with evidence of his individual capabilities." Id. Thus, the plaintiff's burden "merges with his ultimate burden of persuading the trier of fact that he has suffered unlawful discrimination." Id.
Applying the two-step analysis, we hold that the EEOC presented sufficient evidence that Bradley is "qualified" for the positions of greeter and cashier. First, Bradley meets the skill, education, and experience requirements for the positions of cashier and greeter. The job descriptions for both greeter and cashier state that "no experience or qualification is required."
Second, the EEOC has made a "facial showing" that a reasonable accommodation would enable Bradley to perform the essential functions of both the greeter and cashier positions. Jayne, the EEOC's main expert, proposed specific accommodations that would enable Bradley to have the requisite mobility and standing required for both jobs. For the cashier position, Jayne suggested several accommodations, including a sit-tostand wheelchair, a drafting-type high stool with armrests for additional balance, a narrow wheelchair, the removal of several inches of the divider beside the checkstand to accommodate a regular wheelchair, supplying Bradley with a handscanner, and installing a convex mirror. For the greeter position, Jayne recommended that Bradley use an electronic scooter or similar device.
Wal-Mart attacks the method by which Jayne proposed these accommodations, pointing out that Jayne never observed Bradley use these devices or perform the duties that would be required of him as a greeter or cashier. However, Wal-Mart's argument does not defeat the EEOC's "facial showing" that Wal-Mart could accommodate Bradley's disability. Additionally, Wal-Mart's own expert, Dr. Fevurly, conceded that Bradley was "very . . . stable in a wheelchair." Wal-Mart's own Resource Retention Guide suggests accommodations that might assist 570 employees with mobility *570 limitations, with one illustration specifically involving a "cashier who uses a wheelchair."
Wal-Mart has also failed to show that it is unable to accommodate Bradley. The majority of Dr. Fevurly's assessment of Bradley's capabilities focuses on Bradley's limitations when using his crutches, not a wheelchair. Wal-Mart has offered no evidence that Bradley cannot perform the essential functions of the greeter and cashier positions with reasonable accommodation; instead, it attacks the credibility of Jayne's testimony. Such a credibility determination is best reserved for juries.
Therefore, we hold that the EEOC sufficiently established a prima facie case of discrimination.
B. Pretext for Discrimination
Once the plaintiff establishes a prima-facie case of discrimination, the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for the adverse employment action. Didier, 465 F.3d at 841. If the employer offers a legitimate, nondiscriminatory reason for its actions, then the burden shifts back to the plaintiff to show that the stated reason is a pretext for discrimination. Id.
A plaintiff may prove pretext by showing that the employer's stated reason for the adverse employment action has no basis in fact. Stallings v. Hussmann Corp., 447 F.3d 1041, 1052 (8th Cir.2006). "[I]mplausible explanations and false or shifting reasons support a finding of illegal motivation." Hall v. Nat'l Labor Relations Bd., 941 F.2d 684, 688 (8th Cir.1991). Because the employer's "motive and intent are at the heart of a discrimination case," the

central inquiry "is whether [disability] was a factor in the employment decision at the moment it was made." Sabree v. United Bhd. of Carpenters & Joiners Local No. 33, 921 F.2d 396, 403 (1st Cir.1990) (emphasis in original) (internal quotations and citation omitted).
An employer is prohibited from inventing a "post hoc rationalization for its actions at the rebuttal stage of the case." Id. at 404 (citing EEOC v. Alton Packaging Corp., 901 F.2d 920, 925 (11th Cir. 1990) (holding that where a white applicant did not apply for position until after decision makers had determined a black employee was not qualified, relative qualifications would not establish a non-discriminatory reason); Hill v. Seaboard C.L.R. Co., 767 F.2d 771, 774 (11th Cir.1985) ("Of course, failure to promote a plaintiff because the person actually promoted was more qualified is a non-discriminatory reason, but the articulation of that reason must include the fact that the decision-maker knew that the promoted individual's qualifications were superior at the time the decision was made.")). Therefore, unless the employer articulates a legitimate, nondiscriminatory reason for not hiring the plaintiff that "actually motivated the decision, the reason is legally insufficient." Id. (emphasis in original).
Here, Wal-Mart has advanced several reasons for not hiring Bradley, mainly focusing on his job history and limited availability. Thus, the EEOC bears the burden of demonstrating that these reasons are pretextual. We hold that the EEOC has satisfied this burden, as sufficient evidence exists that the reasons Wal-Mart offered did not actually motivate the decision not to hire Bradley.
First, as to Bradley's job history, Daugherty conceded that she did not know and was "not sure" if Bradley worked at Texaco, Shirkey, and Station Casino before or after she decided not to hire him. Additionally, while Daugherty 571 testified that she was personally aware of "short-term" jobs that Bradley failed to list on his application, *571 including Shirkey and the Richmond Police Department, Bradley did not work at the nursing home or for the police department until after Wal-Mart rejected his application. The EEOC also produced evidence that Bradley never worked at Station Casino, as Daugherty suggested. The jury could also question Daugherty's statement that she observed Bradley working at Texaco, considering he only worked there for one day. And, while Daugherty testified that she was concerned about Bradley's statement that he did not want Wal-Mart to contact Banta, his current employer, this statement only appeared in his July 2000 application, not his February 2001 application. Therefore, a reasonable jury could find, based on Daugherty's testimony, that not hiring Bradley based on his job history has no basis in fact and was instead a post-hoc rationalization.
Second, a reasonable jury could conclude that Bradley's lack of availability did not actually motivate Wal-Mart's decision. Daugherty admitted that she considered both Bradley's July 2000 and February 2001 applications in determining whether to hire him. Specifically, she stated that she remembered Bradley indicating that his hours were "negotiable" on the weekends. Wal-Mart has produced no evidence, however, that it routinely refers back to previous applications when an applicant applies for a second time. Additionally, the jury could question whether Daugherty actually "remembered" the details of Bradley's July 2000 application when reviewing his February 2001 application. Furthermore, Daugherty conceded that she would hire Bradley based on the availability he listed on his February 2001 application alone.
Because the EEOC provided sufficient evidence that Wal-Mart's stated reasons for not hiring Bradley were pretextual, we hold that the district court erred in granting summary judgment to Wal-Mart on the EEOC's discrimination claim.
C. Direct Threat
Wal-Mart argues that the "direct threat" affirmative defense provides this court with an alternative basis for upholding the district court's grant of summary judgment in its favor.
"[S]ummary judgment would still be appropriate under the ADA if [Bradley] posed `a direct threat to the health or safety of other individuals in the workplace.'" Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir.1999) (quoting 42 U.S.C. § 12113(b)). A "direct threat" is defined as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3); see also 29 C.F.R. § 1630.2(r).

The Supreme Court requires an individualized direct threat analysis that relies on the "best current medical or other objective evidence" in order to "protect disabled individuals from discrimination based on prejudice, stereotypes, or unfounded fear." Nunes, 164 F.3d at 1248 (citing Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998); Sch. Bd. of Nassau County, Fla. v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94 L.Ed.2d 307 (1987)). "Specific factors to be considered include (1) the duration of risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm." Id.
Although we have previously declined to resolve which party bears the burden of proving direct threat, Stafne v. Unicare Homes, 266 F.3d 771, 775 (8th Cir.2001), we now hold that the employer bears the burden of proof, as 572 the direct threat defense is an affirmative defense. *572 See Nunes, 164 F.3d at 1247; Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 220 (2d Cir.2001) ("The legislative history of the ADA also supports the premise that `[t]he plaintiff is not required to prove that he or she poses no risk.'"); Dadian v. Village of Wilmette, 269 F.3d 831, 840-41 (7th Cir.2001) ("[W]e conclude that a public entity that asserts the reason it failed to accommodate a disabled individual was because she posed a direct threat to safety bears the burden of proof on that defense at trial."). In other contexts, we have held that the defendant bears the burden of proving an affirmative defense. See, e.g., Jankovitz v. Des Moines Indep. Cmty. Sch. Dist., 421 F.3d 649, 654 (8th Cir.2005) ("Defendant bears the burden of proving its statutory affirmative defense."); Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir.2005) ("This circuit considers the PLRA's exhaustion requirement to be an affirmative defense that the defendant has the burden to plead and to prove."); Midwest Oilseeds, Inc. v. Limagrain Genetics Corp., 387 F.3d 705, 714 (8th Cir.2004) ("The specificity requirement of Rule 56 applies with equal force where the defendant resists summary judgment, especially where the defendant resists by asserting affirmative defenses which it has a burden to prove.").
In the present case, Wal-Mart's expert, Dr. Fevurly, opined that Bradley would pose many safety risks if he was hired as a greeter or cashier. Specifically, Dr. Fevurly testified that the "biggest risk is the fact that [Bradley's] legs are not capable of holding him without arm support," as Bradley admitted that he frequently falls on floors that have impediments. Second, Dr. Fevurly pointed out that Bradley is "very wide when he uses his crutches . . . twice the width of a normal person depending on the area where he is," meaning that Bradley could pose an "obstacle" to people coming in and out of the store. Finally, Dr. Fevurly stated that standing for an entire shift would "place [Bradley] at great risk" for "recurrent back and knee pain" that would "make it difficult to tolerate these tasks" over time.
Dr. Fevurly admitted, however, that his opinion assumes that Bradley would be using crutches, not a wheelchair. Wal-Mart has failed to present evidence that a reasonable accommodation 0907such as a wheelchair 0907would not eliminate the risks identified by Dr. Fevurly. In fact, Dr. Fevurly admitted that Bradley was "very . . . stable in a wheelchair" and that Bradley would be "much less of a threat to himself and to coworkers" when he is not on crutches. Furthermore, Wal-Mart has failed to explain how Bradley, using a wheelchair or other similar device, poses any more of a threat than Wal-Mart customers who shop using such devices.
Therefore, we hold that Wal-Mart has failed to prove that Bradley, using a wheelchair or other reasonable accommodation, would pose a direct threat to the safety of himself or others.
III. Conclusion
Accordingly, we reverse the district court's grant of summary judgment to Wal-Mart and remand for a trial on the merits.
[1] From June 1998 to June 2001, Bradley worked as a proofreader for Banta.
[2] In June 2000, Bradley spent a single day working as a cashier at Texaco. On the day he worked at Texaco, Bradley used his crutches. He voluntarily quit after his first day of work because the area in which he was working was not wheelchair accessible.

[3] Specifically, the resource publication states:
Example: A Cashier who uses a wheelchair is unable to lift 50-pound bags of Ol'Roy dog food from the bottom of the customer's shopping cart. Since this happens infrequently, it is a reasonable accommodation for the CSM or another front-end Associate to assist with this task.
[4] "Reasonable accommodation" includes:
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
42 U.S.C. § 12111(9).
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