Diversity & Inclusion, HR Management & Compliance

Kansas Case Shows Perils of ‘Pretext’ in Disciplinary Actions

A recent Kansas federal court decision provides a good reminder of the importance of engaging in the interactive process when you’re dealing with disability accommodation requests. The ruling also highlights the perils of “pretext” (or false excuses) when articulating nondiscriminatory reasons for disciplining an employee.

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Gracelynn Howard started working for Walmart as a pharmacy manager in 2007. In January 2017, a physician completed an accommodation request form on her behalf, stating she needed a chair with a back and automated window shutters as accommodations for a disability. Her manager provided the chair and instructed her to ask a staff member for help with the shutters. Howard then got a new manager, Caleb Magee.

In June 2017, Howard took Family and Medical Leave Act (FMLA) leave for back surgery. She said Magee contacted her on numerous occasions during the leave to see when she would return to work. Coworkers also contacted her to say the supervisor was angry and frustrated because she hadn’t yet returned.

When Howard returned from leave, she asked Magee to avoid scheduling her with consecutive 12+-hour shifts. She said he simply denied the request without further discussion and stated the schedule “is what we’re working with.”

Howard then began to accumulate discipline, receiving three written disciplinary actions from Magee, culminating in her termination. She also claimed he refused to listen to her explanations about the disciplinary actions and, to add insult to injury, removed some of her supervisory authority by preventing her from addressing performance issues with her staff.

Howard sued Walmart for FMLA and Americans with Disabilities Act (ADA) violations.

Court’s Analysis

The district court analyzed Howard’s disability discrimination, retaliation, and FMLA discrimination claims and denied Walmart’s request for summary judgment (dismissal without a trial). The court’s ruling relied on several factors:

  • Magee’s frequent texts to Howard during the leave to find out when she would be returning;
  • Testimony that the supervisor voiced his frustrations to other employees about the leave; and
  • His scrutiny and hostility toward Howard when she returned from the leave.

The timing of Howard’s discipline also played a role. Before disclosing her disability, she had received one disciplinary action in the previous 10 years. But after sharing the information, she was disciplined multiple times leading to her termination.

Howard also alleged Walmart violated the ADA when it failed to accommodate her request not to be scheduled for long shifts. The employer argued the request was insufficient and unreasonable, and she had failed to ask specifically for her desired schedule.

The court rejected Walmart’s argument because of its failure to engage in any form of the interactive process. Per the court, the semantics of Howard’s exact inquiry were irrelevant because the employer dropped the ball by not engaging in any discussion with her to elicit more details about the request. Howard v. Walmart, Inc., No. 18-2636-KHV, 2020 U.S. Dist. LEXIS 71575, at *1 (D. Kan., Apr. 23, 2020).


When courts weigh the legitimacy of an employer’s stated reason for an adverse action (especially a termination), they consider the timing, a manager’s general attitude toward an employee, the individual’s disciplinary history, and whether coworkers are being reprimanded consistently.

Also, even if an employee doesn’t state an accommodation request with specificity, you’re obligated to engage in an interactive process with the individual to determine whether a reasonable accommodation is possible.

Morgan Geffre is an employment law attorney with Foulston Siefkin LLP in Wichita, Kansas. She regularly advises employers on a host of employment issues related to discrimination and other employment laws. You can reach her at mhammes@foulston.com.

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