United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
Equal Employment Opportunity Commission (EEOC) is proceeding
on a claim under the Americans with Disabilities Act, 42
U.S.C. § 12112(a) et seq., that defendants Wal-Mart
Stores, Inc. and Wal-Mart Stores East, LP (Wal-Mart) failed
to provide one of its cart pushers, Paul Reina, with a
permanent job coach as a reasonable accommodation and
terminated Reina's employment because of his
disabilities. After Judge Crabb entered an order denying
Wal-Mart's motion for summary judgment on December 18,
2018, Dkt. 65, the case was transferred to me, Dkt. 66.
Wal-Mart now asks that the court reconsider the summary
judgment order under Rule 54(b), Dkt. 72, or certify that an
interlocutory appeal may be taken from the order and stay all
proceedings pending appeal, Dkt. 70.
reasons explained below, both motions will be denied.
Motion for Reconsideration
for reconsideration serve limited purposes: to correct
manifest errors of law or fact, or to present newly
discovered evidence. Caisse Nationale de Credit Agricole
v. CBI Indus., Inc., 90 F.3d 1264, 1269 (7th Cir. 1996).
This principle applies with even more force when a party is
asking a new judge to reconsider the ruling of the previous
judge. Brengettcy v. Horton, 423 F.3d 674, 680 (7th
Cir. 2005) (“Although the second judge may alter
previous rulings if he is convinced they are incorrect, he is
not free to do so merely because he has a different view of
the law or facts from the first judge.”) (internal
quotations and alterations omitted).
motion for reconsideration, Wal-Mart repeats the same
arguments that it made in support of its motion for summary
judgment, contending that the court erred in concluding that
a full-time, permanent job coach for Reina was not
necessarily an unreasonable accommodation under the ADA. But
Wal-Mat fails to cite any further evidence or legal authority
that undermines Judge Crabb's conclusion.
did on summary judgment, Wal-Mart relies on a few older
decisions by other district courts concluding that a
permanent job coach is not a reasonable accommodation as a
matter of law. It also points out that the Seventh Circuit
has made clear that requiring an employer to provide a
“job helper” is not a reasonable accommodation
insofar as it requires another person to perform an essential
function of the employee's job. See e.g. Peters v.
City of Mauston, 311 F.3d 835, 845 (7th Cir. 2002)
(employee's request for someone to do heaviest lifting
for him was unreasonable accommodation). But as Judge Crabb
explained, there is limited published case law on this
subject, and the Court of Appeals for the Seventh Circuit has
not adopted a per se rule regarding permanent job coaching.
also suggests that the court misapplied EEOC guidance by
failing to consider a footnote that states that a “[a]
job coach is a professional who assists individuals with
severe disabilities with job placement and job training,
” both of which are temporary services. EEOC Notice No.
915.002 at n.63 (Mar. 25, 1997). However, as discussed in the
summary judgment order, EEOC's interpretive and
enforcement guidance does not address expressly or with any
certainty whether a permanent job coach-particularly one not
paid for or hired by the employer-may be a reasonable
accommodation. More important, a review of the case law shows
that the issue turns not on the distinction between permanent
and temporary job coaching, but rather on the type and amount
of assistance provided by the job coach and the abilities of
the employee in question.
case, factual questions remain about both the essential
functions of Reina's position and the amount of
assistance that Reina needed to perform those functions.
These factual questions make it impossible to determine at
this stage whether Reina is a qualified individual with a
disability or whether a permanent job coach would be a
reasonable accommodation in his case. Wal-Mart contends that
none of these disputes preclude summary judgment because it
is clear that Reina had severe limitations and needed at
least some level of permanent assistance, making him
unqualified for his position as cart pusher. Even if the
court of appeals were ultimately to issue a per se rule that
a permanent job coach is not a reasonable accommodation, the
court of appeals would find it helpful to consider the matter
on a fully developed factual record. The bottom line is that
Judge Crabb committed no manifest error when she concluded
that factual disputes must be resolved before reaching a
final decision on the reasonable accommodation issue.
Motion to Certify Interlocutory Appeal
court's December 18, 2018 order is not a final order, so
Wal-Mart can appeal that decision now only under limited
circumstances. Specifically, a district court may certify a
nonfinal order for an interlocutory appeal if: (1)
“there is substantial ground for difference of
opinion” as to a controlling question of law; and (2)
an immediate appeal “may materially advance the
ultimate termination of the litigation.” 28 U.S.C.
§ 1292(b). The second requirement is not satisfied here.
is room for reasonable disagreement about whether a permanent
job coach can be a reasonable accommodation under the ADA as
a point of law. But, as explained above, the factual record
of this case is not yet fully developed so it does not make
much sense to take an appeal of the legal point now. There is
a good chance that an appeal will only delay the resolution
of the case. So Wal-Mart has not shown that an immediate
appeal will materially advance the ultimate termination of