EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WAL MART STORES INC LP (2025)

ORDER

Plaintiff, the Equal Employment Opportunity Commission, brought this claim against Defendant Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP ¹ alleging disability discrimination and failure to accommodate claims under the Americans with Disabilities Act of 1990, as amended (“ADA”) (42 U.S.C. § 12101, et seq.), and Title I of the Civil Rights Act of 1991 (42 U.S.C. § 1981a). Defendant filed its Motion for Summary Judgment (#87) on January 10, 2025, to which Plaintiff filed a Response (#88) on February 10, 2025. Defendant filed its Reply (#89) on March 3, 2025. The Motion is now fully briefed and ready for the court's decision.

BACKGROUND

The following background facts are taken from Defendant's Statement of Undisputed Material Facts, Plaintiff's Additional Facts section in its Response, and the exhibits attached by the parties to their filings. The court will only consider those facts properly before it.

 Legal Claims

Plaintiff alleges that Kaleb Sleeth is a qualified individual with a disability under the ADA, in that he is deaf. Plaintiff alleges that Defendant violated the ADA by failing to accommodate Sleeth's request for an American Sign Language (“ASL”) interpreter for an interview and subjected him to an adverse employment action, failure to hire, due to his disability.

 Factual Background

 Defendant's Policies 2

Defendant states that it is an equal opportunity employer and does not unlawfully discriminate against job applicants or employees. While Defendant's policy does not specifically say that prohibited discrimination includes “discrimination on the basis of a need for a reasonable accommodation,” the policy does prohibit discrimination based on “any legally protected status.” Defendant's “Accommodation in Employment Policy” states its commitment to accommodating associates and applicants with disabilities and sets out the simple steps an associate or applicant must take to request a reasonable accommodation for a disability.

Additionally, Defendant's “Accommodation Service Center” handles accommodation requests from job applicants and associates, including providing assistance with the administration of disability-related accommodations and the interactive process.

Defendant can provide a sign language interpreter for a deaf applicant. Defendant's Management Guidelines indicate that reasonable accommodations can include interpreters, and that Defendant should provide a sign language interpreter during the hiring process if requested by an applicant, if reasonable.

 Sleeth Applies for Employment at Defendant's Decatur, Illinois, Store

On December 8, 2018, Sleeth submitted an online application for employment for a position at Walmart Store No. 2728, located in Decatur, Illinois. At the time he applied for employment, Sleeth had an impairment — deafness — that substantially limited him in the major life activity of hearing. Sleeth communicates using ASL interpreters and written English.

In 2015, when Sleeth was 18 years old, his mother, Jennifer Sleeth (“Jennifer”), was appointed as his permanent legal guardian. Sleeth has autism, which was noted in guardianship documents as his primary disability. Sleeth was also diagnosed with Intermittent Explosive Disorder.

Sleeth's application for employment at Defendant's Decatur store reflected that he was only available to work Monday through Friday, 9:00 a.m. until 10:00 p.m., Saturday from 1:00 p.m. to 9:00 p.m., and Sunday from noon to 9:00 p.m. In response to a question regarding whether he would be able to work a night shift from 10:00 p.m. to 7:00 a.m., Sleeth replied that he could not. Sleeth also stated that he had no experience in grocery store or retail sales positions.

 Defendant's Employment Application Process

When applying for employment with Defendant, an interested candidate such as Sleeth completes an online application by inputting their personal information, employment history, and an assessment into Defendant's career preference online hiring application. When one of an applicant's chosen positions opens, if the applicant has passed the assessment and is otherwise qualified for the position, the applicant is placed in the applicant “pool” comprised of potential candidates from current employees and from prospective employees who have already indicated an interest in the open position.

Defendant's Decatur Store Manager, Marvin Ford, testified that, although management could have reviewed applications, generally speaking, applications for Customer Availability Process (“CAP”) 2 Team Associate positions were reviewed by either the Training Coordinator, Pamela West, or the Personnel Coordinator, Kim Hofer, as a first step. When there were more applicants than open positions, screeners could select whom to call based on availability and perhaps experience. Screeners had discretion as to what order to contact applicants. However, West and Hofer also testified that they would view the applications received and, if a candidate met the store's requirements regarding availability, they would contact the applicant to see if they were still interested in the position.

Crystal Kay, the Assistant Manager responsible for hiring CAP 2 Team Associates at the time Sleeth applied, testified that she has interviewed more than 50 applicants for various positions. She has not continued with an applicant on only a handful of occasions, and each time the reason was that the applicant was not actually available for the times she needed them to work.

Being interviewed was an essential element of the hiring process for the CAP 2 Associate position in December 2018. But, per West, she would not interview the applicant unless they met the store's hiring requirements first.

 Application Process for the CAP 2 Team Associate Position

During the month of January 2019, the Decatur store opened nine requisitions for the CAP 2 Team Associate position. The written job description for this position stated that the essential job duties included: maintaining inventory accuracy, providing customer service by acknowledging the customer, identifying customer needs, and resolving customer issues and concerns. Kay testified that the only function she was aware of for the position was “unloading and stocking[.]”

Sleeth was placed in the applicant pool for all nine CAP 2 Team Associate positions at the Decatur store, as well as one full-time CAP 1 Team Associate position. When an applicant entered their information into Defendant's online application, the information would be transmitted to Defendant's Career Preference database for review by the Decatur's store's personnel department, which included West and Hofer.

Once the Decatur store opened a requisition for a position, West and Hofer would view the applications received and, if a candidate met the store's requirements regarding availability, they would notify the applicant to see if the applicant was still interested in the position. West stated that she might call a candidate regardless of whether the applicant met the availability requirements to inquire if they would be open to changing their availability. She would also “conduct short interviews to see if they were a good fit.”

After it was determined that an applicant fit the criteria for the position, Kay and Ford, who were the salaried members of management for the store, were ultimately responsible for interviewing the candidate and making hiring decisions.

 Defendant's Review of Sleeth's Application

West saw Sleeth's application on or around January 3, 2019, after which she called him to set up a screening interview. On January 5, 2019, West conducted a brief phone call with Sleeth, during which Sleeth used an interpreter through a video relay service to communicate with West. West and Sleeth briefly discussed the position and his availability for the position. Sleeth informed West that he is deaf and that he would need an interpreter for the interview for the position.

Mya Peoples, Sleeth's younger sister, is fluent in ASL and sometimes translates for Sleeth. Peoples was standing near Sleeth watching his video phone interview with West on January 5, 2019. Peoples stated that, in response to Sleeth's stated need for an interpreter to complete his interview, West inquired whether he had his own interpreter available, and Sleeth stated that he did not. West told Sleeth that she would look into getting him a sign language interpreter and follow up with him. Sleeth, however, denies that West asked him if he could provide his own interpreter, and West could not recall asking Sleeth if he had access to his own interpreter.

 Sleeth Ultimately Not Hired

On January 7, 2019, Sleeth called again and spoke to West regarding the status of his request for a sign language interpreter. West told him that the store was still trying to set up an interview with him. However, West never called Sleeth back, and Sleeth never followed up with West a second time or with anyone else at Defendant about his application.

At no time did Sleeth ask to use his video relay to complete the interview or offer to provide an interpreter, even though Jennifer had previously served as an interpreter for him during job interviews. Sleeth, however, testified that Jennifer was not very skilled in ASL and was not particularly helpful in job interviews, only doing a “so-so” job.

Sleeth's vocational rehabilitation counselor, Robert Stymets, who worked for the Division of Rehabilitation in the Illinois Department of Human Services (“IDHS”), testified that Sleeth had access to professional sign language interpretation services for job interviews at no cost to him through IDHS. However, Sleeth did not remember Stymets telling him that the IDHS would provide ASL interpreters for job interviews. Stymets explained that it could take time to schedule and arrange interpreters especially around the holidays. The State of Illinois would not provide an interpreter where the company had already provided one.

Ultimately, three of the nine requisitions for the CAP 2 Associate position were filled by external candidates, and the remainder were closed without filling the position. Defendant claims that, in contrast to Sleeth, the three individuals hired by Defendant as CAP 2 Associates in January 2019 had availability to work mornings on Saturdays and Sundays.

There is a dispute between the parties regarding the availability of one of these individuals, “Applicant 2,” to work weekend mornings. Defendant states that Applicant 2, unlike Sleeth, had availability on weekend mornings. Plaintiff contends that, on Applicant 2's application, the availability dates “were changed by hand to show [Applicant 2] was actually available to work during weekend mornings” at some point after Applicant 2's screening interview. Looking at Applicant 2's application, it appears that Applicant 2 indicated they could work Saturday from 5:00 p.m. until 4:00 a.m. Sunday morning. Applicant 2 was not available Fridays or Sundays. However, the Saturday time (along with all other days) has a line drawn through it with “1” written above and “10” written below.

The Decatur store did not open requisitions for any other positions for which Sleeth met the requirements within the 60 days following Sleeth's application, and Defendant has no record that Sleeth renewed his application.

 Defendant's Training Regarding Accommodation Requests

As employees of Defendant, West and Hofer, as well as managers Kay and Ford, received training regarding the ADA and Defendant's anti-harassment and equal employment opportunity policies prohibiting discrimination in employment. Moreover, Defendant provides training to its managers, including Kay and Ford, on the accommodation process and its Accommodation Service Center, including how to escalate accommodation-related matters.

If an applicant applies online, a salaried member of store management would only become aware of the applicant's request for an accommodation if either the candidate informed them or if Defendant's Accommodation Hotline contacted a salaried member of management. Hofer, as a screener, could also pass the request up to store management.

Ford and Pam Golden, Defendant's Marketing Human Resources Manager, testified that, at this time, if an applicant were to request an accommodation during the hiring process, as Sleeth did, the Training Coordinator was trained to either contact Defendant's Accommodation Hotline or direct the applicant to the Accommodation Hotline. Ford testified that if Defendant were to provide an interpreter for the interview, West would be the person responsible for obtaining the interpreter's services.

While she served in her position as Training Coordinator, West reported to the Store Manager, Ford. West was trained in how to screen applicants by the District Manager for Personnel, including regular meetings, conference calls, and hands-on training with Hofer.

However, West testified that no one ever explained to her about what to do if an applicant needed an accommodation to complete the application process. West stated that she did not receive training on how to obtain a sign language interpreter for a job applicant. Ford testified that West would have received specific training on how to obtain an ASL interpreter. However, West testified that a Training Coordinator like herself would not have access to management training because it is for salaried managers.

The “Workplace Respect Hourly” training that West's training log indicates she received does not use the word “applicant” anywhere. The “Workplace Respect Hourly” does not include any content about how to provide a disability-related accommodation to an applicant. Kay testified that, if an accommodation was requested, West could have gone to “any salary member or management” or “just [given] them the resources that that particular applicant would need.” Ford, on the other hand, testified that West should have reported the request to the Accommodations Service Center.

 Sleeth's Case

However, neither occurred in Sleeth's case. West did not communicate with the Accommodations Service Center regarding Sleeth's request for an interpreter. Neither Kay nor Ford, the members of management responsible for hiring at the Decatur store, were ever made aware that Sleeth was deaf, that he had requested an interpreter, or that he had even applied for employment with Defendant.

Though West maintains that she spoke with Hofer regarding Sleeth's request for an interpreter, Defendant has no record of West ever communicating Sleeth's request to Hofer, and Hofer testified that West did not speak to her about Sleeth. Hofer also did not recall West ever speaking to her about any deaf applicant or any applicant for the CAP 2 position in December 2018 or January 2019. Hofer further testified that if she had learned of an applicant who needed an accommodation, she would communicate with and get direction from her Store Manager and/or Market Manager.

West testified that she had multiple conversations with Hofer about Sleeth's request for an ASL interpreter — one when he first made the request, another conversation when he followed up a few days later, and a third conversation at a later date. Hofer repeatedly claimed she had forgotten these conversations. After West learned from Sleeth that he needed an ASL interpreter during her first call with him, she told Hofer about Sleeth's request. She asked Hofer what they were going to do about Sleeth's request, West testified that Hofer told her that she did not know, and that Hofer would have to “get with management” to see how to handle it.

 Other Disabled Employee

The Decatur store employs a long-tenured associate who is hearing impaired and has worked at the store for over 16 years. Hofer was the Training Coordinator at the time of this associate's hiring, and the associate interviewed for the position using an interpreter that the associate provided. When Hofer learned of the associate's hearing impairment at the interview, she notified her Store Manager at the time, after which the associate was hired.

 Defendant's Position Statement before Plaintiff

Sleeth filed a Charge of Discrimination with Plaintiff on February 24, 2019. On June 27, 2019, Defendant submitted a position statement to Plaintiff in response to Sleeth's Charge. In that document, Defendant stated that Ford and Hofer were not familiar with Sleeth and were unaware of the fact that he had a disability. Further, although West was still working for Defendant at the time, Defendant's position statement makes no mention that she played any role in contacting applicants. The position statement states that Defendant's hiring process is automated and that candidates are interviewed based on computer generated lists of qualified applicants, and that no Walmart Associate was aware of Sleeth's application.

ANALYSIS

Defendant argues that summary judgment should be granted in its favor on Plaintiff's disability discrimination claim because West was not a supervisor and because it had a legitimate, non-discriminatory reason not to hire Sleeth. Defendant further argues that summary judgment should be granted on Plaintiff's failure to accommodate claim because Sleeth was responsible for any breakdown in the interactive process. Defendant also requests the court enter summary judgment denying Plaintiff's claim for punitive damages.

Plaintiff responds that the evidence shows that nothing on Sleeth's application would have deterred Defendant from hiring him, and that West's “official position at Walmart is irrelevant both factually and legally.” Plaintiff also argues that it should be left to a jury to determine who was responsible for the breakdown of the interactive process and whether Defendant is liable for punitive damages.

 Summary Judgment Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, a district court “has one task and one task only: to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). In making this determination, the court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Singer v. Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). However, a court's favor toward the nonmoving party does not extend to drawing inferences which are only supported by speculation or conjecture. See Singer, 593 F.3d at 533. In addition, this court “need not accept as true a plaintiff's characterization of the facts or a plaintiff's legal conclusion.” Nuzzi v. St. George Cmty. Consol. Sch. Dist. No. 258, 688 F.Supp.2d 815, 835 (C.D. Ill. 2010) (emphasis in original).

The party opposing summary judgment may not rely on the allegations contained in the pleadings. Waldridge, 24 F.3d at 920. “[I]nstead, the nonmovant must present definite, competent evidence in rebuttal.” Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). Summary judgment “is the ‘put up or shut up’ moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.” Koszola v. Bd. of Educ. of City of Chicago, 385 F.3d 1104, 1111 (7th Cir. 2004), quoting Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Specifically, to survive summary judgment, the nonmoving party “must make a sufficient showing of evidence for each essential element of its case on which it bears the burden at trial.” Kampmier v. Emeritus Corp., 472 F.3d 930, 936 (7th Cir. 2007), citing Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.

 ADA Claims

Defendant moves for summary judgment on both Plaintiff's failure to hire and failure to accommodate claims, arguing that: (1) West was not a supervisor; (2) it had a legitimate, non-discriminatory reason to not hire Sleeth; and (3) that Sleeth was responsible for any breakdown in the interactive process.

“The Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq., and Rehabilitation Act prohibit an employer from discriminating against a qualified individual with a disability because of the disability.” Garg v. Potter, 521 F.3d 731, 736 (7th Cir. 2008) (cleaned up). Plaintiff alleges that Defendant discriminated against Sleeth by failing to hire him and that Defendant also failed to reasonably accommodate Sleeth, both in violation of the ADA. A failure to hire claim is distinct from a failure to accommodate claim. Hergenrader v. McCarthy, 2019 WL 13292837, at *8 n.5 (C.D. Ill. Nov. 5, 2019).

 Lack of Supervisory Authority

As an initial matter, Defendant argues that, under the U.S. Supreme Court's decision in Vance v. Ball State University, 570 U.S. 421, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013), Plaintiff “cannot impute liability on [Defendant] since Ms. West was not a supervisor.” Defendant argues that “an employee who lacks authority to hire, terminate, promote, discipline, or transfer other employees is not a statutory supervisor.” Defendant argues West never had such authority, and the personnel who did, Kay and Ford, were “never aware of Mr. Sleeth's application, disability, or request for an accommodation[,]” and therefore Defendant “cannot be held liable for misconduct of which it is unaware.”

Plaintiff responds that West's position at Defendant “is irrelevant both factually and legally.” Plaintiff argues that Vance has never been extended beyond Title VII harassment claims to other areas of discrimination law, such as ADA failure to hire or failure to accommodate claims. Plaintiff further argues that, even if Vance could be extended to the ADA claims in this case, Defendant would still be liable because it empowered West to take tangible employment actions. Plaintiff argues that, “[u]nder the theory of respondeat superior, [Defendant's] decision to have Ms. West screen applicants cannot shield it from liability,” otherwise “employers might choose to have their cleaning staff review applications and then claim that they are shielded from liability if the staff dumps them in the trash.”

Vance concerned a claim from a plaintiff under Title VII that a fellow employee created a racially hostile work environment. The lower courts found for the employer. The U.S. Supreme Court affirmed. The Court held “that an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a ‘significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ ” Vance, 570 U.S. at 431, 133 S.Ct. 2434, quoting Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). The Court also noted that an employee could count as a supervisor if their hiring decisions are subject to approval by higher management. Vance, 570 U.S. at 437 n.8, 133 S.Ct. 2434.

The Court went on to write that “[t]he interpretation of the concept of a supervisor that we adopt today is one that can be readily applied. In a great many cases, it will be known even before litigation is commenced whether an alleged harasser was a supervisor, and in others, the alleged harasser's status will become clear to both sides after discovery. And once this is known, the parties will be in a position to assess the strength of a case and to explore the possibility of resolving the dispute. Where this does not occur, supervisor status will generally be capable of resolution at summary judgment.” Vance, 570 U.S. at 441, 133 S.Ct. 2434.

The Court also rejected the argument “that tying supervisor status to the authority to take tangible employment actions will encourage employers to attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions[,]” noting that “an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment.” Vance, 570 U.S. at 446, 133 S.Ct. 2434.

Responding to the dissent, the Court wrote that “[a]ssuming that a harasser is not a supervisor, a plaintiff could still prevail by showing that his or her employer was negligent in failing to prevent harassment from taking place. Evidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed would be relevant. Thus, it is not true, as the dissent asserts, that our holding ‘relieves scores of employers of responsibility’ for the behavior of workers they employ.” Vance, 570 U.S. at 448-49, 133 S.Ct. 2434.

The court, like the parties, has not been able to locate any case where the specific holdings in Vance were applied in circumstances beyond the harassment or hostile work environment context. Indeed, the discussion in Vance centered entirely around the harassment context, as the Court considered whether the harasser in question has been empowered by the employer to take actions that could have a tangible effect on the plaintiff's employment. The Court also discussed employer negligence with regard to harassment and the employer's knowledge of the harassing or hostile environment, and what protocols and safeguards the employer put in place to respond to or prevent such harassment. See Vance, 570 U.S. at 449, 133 S.Ct. 2434.

It is not difficult to see why courts have not specifically applied Vance in other employment discrimination contexts. Just taking the instant case by way of example, Sleeth's circumstance is vastly different to a plaintiff in a workplace harassment or hostile work environment context. Sleeth is an outsider, he does not work for Defendant. He would have no knowledge of Defendant's hierarchical structure, or whether the person he is dealing with had the authority to affect his employment status. Sleeth would also have no knowledge of Defendant's internal procedures for handling complaints. He would not know who to appeal to if the person screening his application, West, made a statement or decision he did not like.

But this is not to say that Vance does not contain generally applicable principles or valuable guidance for how to analyze whether a specific employee had sufficient authority to be considered a decisionmaker under a causation analysis in a different employment discrimination context. For example, the Court's definition of a “tangible employment action” was cited by the Seventh Circuit for determining what constituted an adverse employment action in a failure to hire claim. See Trahanas v. Northwestern University, 64 F.4th 842, 856 (7th Cir. 2023) (“The same goes for a failure to hire. See Vance, 570 U.S. at 431, 133 S.Ct. 2434 (defining a tangible employment action to include ‘hiring [or] failing to promote’).”).

Another example would be Vance’s recognition that “if an employer concentrates all decisionmaking authority in a few individuals, it likely will not isolate itself from heightened liability[.]” Vance, 570 U.S. at 446-47, 133 S.Ct. 2434. This is because “[i]f an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee[,]” and “[u]nder those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.” Vance, 570 U.S. at 447, 133 S.Ct. 2434.

Such points of law are consistent with how federal courts have determined who is the relevant decisionmaker in failure to hire causation analyses both before and after the Supreme Court's decision in Vance. To show causation in a failure to hire claim, a plaintiff must show a causal link between the discriminatory action and the person who was the decisionmaker with respect to the plaintiff's employment. See Turner v. Hirschbach Motor Lines, 854 F.3d 926, 929 (7th Cir. 2017). In other words, a plaintiff must show that the relevant decisionmaker responsible for the tangible employment action had the authority or responsibility for filling the job position at issue. See Darbouze v. Toumpas, 2011 WL 6300702, at *16 (D.N.H. Dec. 16, 2011).³ Moreover, it is axiomatic that if a decisionmaker was truly unaware that an applicant had a disability, it would be impossible for their hiring decision to have been based, even in part, on the applicant's disability. Raytheon Corp. v. Hernandez, 540 U.S. 44, 54 n.7, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003). And, if no part of the hiring decision turned on the applicant's status as disabled, they cannot have been subject to discriminatory treatment. Raytheon, 540 U.S. at 54 n.7, 124 S.Ct. 513.

Thus, if the evidence does not show that the employee in question, in this case West, was the decisionmaker for the failure to hire, the claim must fail. See Buckner v. Lynchburg Redevelopment & Housing Authority, 262 F.Supp.3d 373, 381 (W.D. Va. 2017) (“The evidence is uncontested that Jackson was not a decisionmaker for the failure to hire Plaintiff. Further, Plaintiff had not even applied at the time of Jackson's statement. Therefore, Jackson could not have been communicating his understanding of McGarrahan or Fagan's position on Plaintiff because those decisionmakers did not even know Plaintiff was considering applying at the time. Instead, the statement represented Jackson's opinion on the suitability of older workers for the entry level position. That a non-decisionmaker had the belief that entry level positions were not appropriate for older and experienced workers such as Plaintiff has no probative value as to whether the decisionmakers here failed to hire Plaintiff because of his age.”); Whitfield v. International Truck and Engine Corp., 755 F.3d 438, 445-46 (7th Cir. 2014) (“Thus, it is impossible for the court to conclude that the reason he was not hired was due to either the errors in his resume or lack of PLC experience. While those may have been reasons for not hiring Whitfield, without any known decisionmaker, it is mere speculation to say these were the actual reasons. The district court stated that ‘it was ultimately Powell's opinion regarding Whitfield's lack of PLC experience that was the driving force behind Navistar's decision not to hire Whitfield.’ However, Powell testified that he did not make the decision to not hire Whitfield, and could not even identify who made the decision. Therefore, it is patently incorrect to say that Powell's opinion had any bearing on the actual basis for the hiring decision.”) (emphases in original).

Who are the relevant decisionmakers with respect to failure to hire claims? Clearly it would be employer personnel who have the authority to take tangible actions regarding prospective employees, i.e., to hire and decline to hire them. See Trahanas, 64 F.4th at 856; Vance, 570 U.S. at 431, 133 S.Ct. 2434. How does one tell when an employee has such authority so as to make them a decisionmaker with respect to a failure to hire claim? Written documentation is one way to determine who has specific authority. See Vance, 570 U.S. at 432, 133 S.Ct. 2434. Direct testimony in the record establishing authority would be another easy way for the court to make the determination. However, whether an employee has been delegated the authority to take the relevant tangible action is not always clear. There may be circumstances where the employees officially charged with the authority to make hiring decisions never actually interact with the applicant before an action is taken that tangibly effects the applicant's employment status.

Vance is helpful as to how to address such a situation in its holding that an employer can be liable if it has “effectively delegated” the power to take tangible employment actions to employees who actually interact with the complaining party. Vance, 570 U.S. at 446-47, 133 S.Ct. 2434; see also N.L.R.B. v. Nelson Electrical Corp., 51 Fed. Appx. 33, 36 (2d Cir. 2002) (“Winter's [sic] status is relevant only as to whether his awareness of applicants’ union membership may be attributed to Nelcorp and his statements may be taken as evidence of anti-union animus. The NLRB rejected the ALJ's finding that Winters was a supervisor, and instead found that Winters, as an employee charged by Nelcorp with authority to deal with applicants, was an agent whose knowledge and statements regarding the hiring of union members could be attributed to Nelcorp. This conclusion was based on substantial evidence.”).

The court now turns to whether West, the sole employee of Defendant with whom Plaintiff interacted, and the only employee besides Hofer who was even aware of Plaintiff's application and had knowledge of his disability, could be considered a decisionmaker with respect to Plaintiff's failure to hire claim.

While West was not the ultimate decisionmaker with respect to hiring at Defendant's Decatur store, her authority to screen and review applications and schedule applicants for interviews directly impacted the hiring process. See Alvarez v. Shinseki, 938 F.Supp.2d 213, 221 (D.P.R. 2013). Even though Ford or Kay would conduct the final interview and make the ultimate hiring decision, an applicant could not even proceed to that final stage without West advancing them forward following an initial review of the application and initial phone interview. The ability to screen applicants itself makes one, in essence, a decisionmaker for hiring purposes. See Belyakov v. Henry M. Jackson Foundation, 2016 WL 495602, at *6 (D. Md. Feb. 9, 2016) (“He provides no evidence to refute the fact that the hiring decisionmakers at the Foundation did not evaluate or screen applicants who applied after November 26, and thus never knew that Plaintiff had applied for the position, let alone his age, by the time Defendant selected Dr. Boggiano in January 2013.”). West could, in her sole discretion, decide whose application gets forwarded to the Decatur store's management team for the final hiring decision. See Alvarez, 938 F.Supp.2d at 221; Gill v. Devlin, 867 F.Supp.2d 849, 858 (N.D. Tex. 2012) (“Gill alleges that Devlin was the ultimate decisionmaker regarding which applications were forwarded to the hiring committee. If Devlin, as the ultimate decisionmaker, routinely excluded applications from homosexual applicants (which Gill implies by asserting that she has not been hired for any of the 32 positions at TCCD she applied for since she first was not hired for a permanent position) and if Howell and other TCCD administrators failed to appropriately address Gill's complaints because of the alleged animus, these allegations along with Devlin's isolated comment about TCCD not ‘liking homosexuals’ suffices under Rule 12(b)(6) to plausibly allege a persistent and widespread custom of not hiring homosexual applicants that TCCD would or should have been aware of.”).

Defendant argues that only Ford and Kay had the ultimate ability to make hiring decisions. But, by attempting to confine hiring power to only Ford and Kay, Defendant left those individuals reliant on other employees, such as West, who actually interacted with the affected applicant, like Sleeth. See Vance, 570 U.S. at 447, 133 S.Ct. 2434. “Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.” Vance, 570 U.S. at 447, 133 S.Ct. 2434. That employee would be West. Thus, the court finds that West qualifies as a decisionmaker for purposes of Plaintiff's failure to hire claim.

For failure to accommodate purposes, a plaintiff must show that the relevant decisionmaker with respect to their requested accommodation—rather than the employer as a general entity—knew they were disabled and were asking for an accommodation. Gargas v. Estes Express Lines, Inc., 2025 WL 860034, at *25 (N.D. Ohio Mar. 19, 2025). Here, not only is there a factual dispute about which party was responsible for obtaining an interpreter for Sleeth's interview, but also about which of Defendant's own employees would have been internally responsible for obtaining the interpreter. Ford testified that West was responsible for obtaining the interpreter. Therefore, the court finds that, taking the evidence in the light most favorable to Plaintiff, West was the relevant decisionmaker with respect to the requested accommodation.

 Failure to Hire

“The ADA prohibits discrimination ‘against a qualified individual on the basis of disability in regard to job application procedures [and] hiring․’ ” Roberts v. City of Chicago, 817 F.3d 561, 565 (7th Cir. 2016), quoting 42 U.S.C. § 12112(a). To prevail on a claim for a failure to hire, a plaintiff must show that they were not hired for a job because of their disability. See Leskovisek v. Illinois Department of Transportation, 305 F.Supp.3d 925, 935 (C.D. Ill. 2018). “To prove a violation of § 12112(a), a plaintiff must show that: (1) he is disabled; (2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the adverse job action was caused by his disability.” Roberts, 817 F.3d at 565. “It is essential for the plaintiff to link the adverse action with his disability.” Kurtzhals v. County of Dunn, 969 F.3d 725, 728 (7th Cir. 2020).

On page 12 of its Motion for Summary Judgment, Defendant states that “[t]o survive summary judgment on a claim of failure to hire based on disability, [Plaintiff] must demonstrate disputed issue of material fact regarding whether Mr. Sleeth ‘suffered an adverse employment action because of his disability.’ ” At footnote 5 on the same page, Defendant states that, regarding the failure to hire claim, it does not concede that Sleeth is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation. However, while it does not concede that point, based on the structure of its argument, the court surmises Defendant, at summary judgment, to only be proceeding on the third prong of the failure to hire analysis: Whether Sleeth suffered an adverse employment action because of his disability.⁴

“To establish the third prong and survive summary judgment, a plaintiff must show a genuine issue of material fact exists regarding whether his disability was the ‘but for’ reason for the adverse action[.]” Monroe v. Indiana Department of Transportation, 871 F.3d 495, 504 (7th Cir. 2017). To show that disability discrimination was the “but for” reason for the termination, a plaintiff can use either direct or circumstantial evidence. Monroe, 871 F.3d at 504. “Direct evidence would be an admission that the defendant fired the plaintiff on the basis of his disability.” Monroe, 871 F.3d at 504. Circumstantial evidence, on the other hand, “may include (1) suspicious timing; (2) ambiguous statements or behavior towards other employees in the protected group; (3) evidence, statistical or otherwise, that similarly situated employees outside of the protected group systematically receive better treatment; and (4) evidence that the employer offered a pretextual reason for an adverse employment action.” Monroe, 871 F.3d at 504.

Defendant mostly frames its argument under the burden shifting framework. In pursuing an ADA discrimination claim, a plaintiff may seek to utilize the McDonnell Douglas burden shifting framework. Castetter v. Dolgencorp LLC, 953 F.3d 994, 997 (7th Cir. 2020), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). “Under the McDonnell Douglas framework, a plaintiff must show that ‘(1) he is disabled under the ADA; (2) he was meeting his employer's legitimate employment expectations; (3) he suffered an adverse employment action; and (4) similarly situated employees without a disability were treated more favorably.’ ” Jaromin v. Town of Yorktown, 697 F.Supp.3d 816, 849 (S.D. Ind. 2023), quoting Dickerson v. Board of Trustees of Community College Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). “Once a plaintiff has established a prima facie case, the defendant must identify a legitimate non-discriminatory reason for its employment decision. If the defendant satisfies this requirement, the plaintiff must then prove by a preponderance of the evidence that the defendant's reasons are pretextual.” Dickerson, 657 F.3d at 601 (citation omitted).

But “McDonnell Douglas is not the only way to assess circumstantial evidence of discrimination.” David v. Board of Trustees of Community College Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017). The Seventh Circuit provided another framework for evaluating discrimination claims in Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016). “Under the Ortiz framework, the Court considers ‘whether the evidence would permit a reasonable factfinder to conclude that the plaintiff's [protected characteristic] caused the discharge or other adverse employment action.’ ” Hoffstead v. Northeast Illinois Regional Commuter Railroad Corp., 703 F.Supp.3d 838, 848 (N.D. Ill. 2023), quoting Ortiz, 834 F.3d at 765; see Aberman v. Board of Education of City of Chicago, 242 F.Supp.3d 672, 686-87 (N.D. Ill. 2017) (applying Ortiz to ADA claims).

Plaintiff, in response, does not directly adopt or reject the McDonnell Douglas approach, but responds more generally to Defendant's arguments and argues that it has demonstrated a genuine issue of material fact with respect to its failure to hire claim. Thus, the court will consider Defendant's arguments in the manner in which they are framed, and will ultimately “assess cumulatively” all the evidence presented by Plaintiff to determine whether it permits a reasonable factfinder to find that Defendant's failure to hire Sleeth was attributable to his disability. See Hoffstead, 703 F.Supp.3d at 848.

Defendant's first argument is that Plaintiff cannot identify any direct evidence of discrimination, noting that it is an equal opportunity employer, has anti-discrimination policies and training protocols in place regarding the ADA and disability rights, and had, at the time of Sleeth's application, a hearing-impaired individual working in the Decatur store. Plaintiff responds that such facts are irrelevant to Sleeth's case. But, in any event, Plaintiff does not identify any direct evidence of discrimination on the part of Defendant, such as an admission of discriminatory animus. See Monroe, 871 F.3d at 504.

Defendant next turns to the McDonnell Douglas approach, arguing that Plaintiff also cannot show any circumstantial evidence of discrimination. Specifically, Defendant argues that it had a legitimate, non-discriminatory reason for failing to hire Sleeth: his inability to work weekend mornings.⁵ Defendant argues that, in contrast to Sleeth, the three individuals hired by Defendant as CAP 2 Team Associates in January 2019 had availability to work Saturday and Sunday mornings. Moreover, the Decatur store did not open any other positions for which Sleeth met the requirements within the 60 days following his application, and Defendant has no record that Sleeth renewed his application.

Defendant is correct that scheduling flexibility concerns can be a legitimate, non-discriminatory reasons for an adverse employment action. See Kunde v. Tufco, L.P., 9 F.Supp.2d 1018, 2021 (E.D. Wis. 1998); see also Magnus v. St. Mark United Methodist Church, 688 F.3d 331, 339 (7th Cir. 2012) (“Both parties further agree that Magnus's unwillingness to work weekends was a contributing and possibly primary reason for her termination. Although Magnus argues that requiring her to work weekends in addition to her normal schedule violated wage and hour laws, she has not shown that this reason was a lie to cover up for associational discrimination.”). After all, “[c]ourts cannot force an employer to hire an employee that does not meet its needs.” Carter v. Family Video Movie Club, Inc., 2013 WL 3989421, at *8 (N.D. Ill. Aug. 2, 2013), citing Baron v. City of Highland Park, 195 F.3d 333, 341 (7th Cir. 1999).

Plaintiff, however, argues that Defendant's proffered reason is a pretext for unlawful discrimination under the ADA. An employer's proffered reason is pretextual if it is an attempt to mask a discriminatory reason with a legitimate excuse. Crain v. McDonough, 63 F.4th 585, 593 (7th Cir. 2023). “Pretext is not just faulty reasoning or mistaken judgment on the part of the employer; it is a lie, specifically a phony reason for some action.” Crain, 63 F.4th at 593 (cleaned up). “In determining whether the employer's reason can be characterized as pretextual, we do not evaluate whether the employer's proffered justification was accurate or even whether it was unfair. Our sole focus is on whether the employer's stated reason can be characterized as a falsehood rather than an honestly held belief.” Brooks v. Avancez, 39 F.4th 424, 435 (7th Cir. 2022). “Merely disagreeing with an employer's reasons does not meet this standard.” Tibbs v. Administrative Office of the Illinois Courts, 860 F.3d 502, 506 (7th Cir. 2017). “In order to show pretext, ‘[a] plaintiff must point to evidence tending to prove that the employer's proffered reasons are factually baseless, were not the actual motivation for the [adverse action] in question, or were insufficient to motivate the termination.’ ” Jaromin, 697 F.Supp.3d at 849, quoting Tibbs, 860 F.3d at 506 (internal quotations and citations omitted). “Thus, an inquiry into pretext requires that we evaluate the honesty of the employer's explanation, rather than its validity or reasonableness.” Crain, 63 F.4th at 593 (cleaned up).

To demonstrate pretext, Plaintiff must identify such weaknesses, implausibilities, inconsistencies, or contradictions in Defendant's stated reasons that would permit a reasonable person to conclude that the stated reasons are unworthy of credence. See Crain, 63 F.4th at 593. “If an employer's explanation for the challenged employment decision has been shifting or inconsistent, this may be evidence of pretext.” Adebiyi v. South Suburban College, 98 F.4th 886, 893 (7th Cir. 2024).

“Pretext may therefore be proved circumstantially, by showing that ‘(1) the defendant's explanation has no basis in fact, or (2) the explanation was not the “real reason[,]” or (3) ․ the reason stated was insufficient to warrant the [failure to hire].’ ” E.E.O.C. v. Celadon Trucking Services, Inc., 2015 WL 3961180, at *25 (S.D. Ind. June 30, 2015), quoting Sanchez v. Henderson, 188 F.3d 740, 746 (7th Cir. 1999).

The court finds that, examining the evidence as a whole, Plaintiff has sufficiently demonstrated a genuine issue of material fact as to whether Defendant's stated reason was pretextual. Defendant's stated reason for not hiring Plaintiff was that he could not or would not work Saturday and Sunday mornings. Defendant states that, in comparison, the three individuals hired by Defendant “as CAP 2 team associates in January 2019 had availability to work mornings on Saturdays and Sundays.” (Emphasis added). However, Applicant 2's application stated that he was not available to work at all on Fridays and Sundays, and on Saturday would only work a night shift from 5:00 p.m. Saturday to 4:00 a.m. Sunday. At some point, those typed-in dates and times were crossed out, with “1” and “10” being written in above and below them, but just what those later-added notations mean is unclear, along with who made those notations and why. True, Defendant would argue ⁶ that the originally submitted typed-in dates and times were crossed out, with “1” and “10” written over them because it was later determined or agreed that Applicant 2 actually could work weekend mornings.

But that would be a reasonable inference drawn in favor of Defendant. At summary judgment, the court must draw all reasonable inferences in favor of Plaintiff. See Singer, 593 F.3d at 533. Doing so, one could interpret the document, attached as Plaintiff's Exhibit 1 (#88-1), to indicate that Applicant 2 never could work weekend mornings, and those written numbers were added later (it is not clear just who made those edits to the application) to justify not hiring Plaintiff, or that Applicant 2 could work Saturdays and Sundays from 1:00 to 10:00, but from 1:00 to 10:00 p.m., not a.m. The document does not conclusively support either party's position, and will require interpretation by someone with knowledge of its contents. Without any countervailing explanation in the record as to what the written notations on the application mean, the court must credit the reasonable inference from the evidence most in favor of Plaintiff.

Viewing Applicant 2's application in the light most favorable to Plaintiff, Applicant 2 was hired to work the same position that Plaintiff applied for, despite not being able to work weekend mornings. Based on Defendant's hiring of an applicant who, like Sleeth, stated they could not work weekend mornings, taken in consideration with West's statement that she routinely ignored stated availability on submitted applications; Kay's statement that while availability was an important consideration in hiring, most interviewed applicants were hired; and the fact that West called Sleeth to set up an interview despite his stated available working hours on his application, a reasonable juror could conclude that Sleeth's availability to work had nothing to do with Defendant's failure to hire him. In other words, a juror could conclude that Defendant's explanation for failing to hire Plaintiff had no basis in fact, or at the very least was insufficient to warrant the failure to hire. See Celadon Trucking, 2015 WL 3961180, at *25. Such a weakness or contradiction in Defendant's stated reason could permit a reasonable juror to conclude that it is “unworthy of credence.” See Crain, 63 F.4th at 593. Because Plaintiff has demonstrated that there is a genuine issue of material fact as to whether Defendant's stated reason for failing hire Sleeth is a pretext for unlawful discrimination, its Motion must be DENIED as to Plaintiff's failure to hire claim.

 Reasonable Accommodation

“Section 12112(a) of the ADA prohibits employers from discriminating ‘against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.’ ” Brooks, 39 F.4th at 433, quoting 42 U.S.C. § 12112(a).

“The ADA then defines ‘discriminate against a qualified individual on the basis of disability’ to include disparate treatment and failure to accommodate[.]” Scheidler v. Indiana, 914 F.3d 535, 541 (7th Cir. 2019), quoting 42 U.S.C. § 12112(b)(5)(A) (emphasis in original). An employer covered by the ADA “may be liable for disability discrimination if it fails to ‘mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee,’ unless the employer can show that ‘the accommodation would impose an undue hardship on the operation of the [employer's] business.’ ” Conners v. Wilkie, 984 F.3d 1255, 1260 (7th Cir. 2021), quoting § 12112(b)(5)(A) (emphasis in original).

A claim for failure to accommodate under the ADA requires proof that: (1) the plaintiff was a qualified individual with a disability; (2) the defendant was aware of his disability; and (3) the defendant failed to accommodate his disability reasonably. Scheidler, 914 F.3d at 541. If the plaintiff establishes these elements of the prima facie case, and shows that the requested accommodation is reasonable on its face, the burden shifts to the employer to prove that the requested accommodation would impose an undue hardship. Conners, 984 F.3d at 1261; Ford v. Marion County Sheriff's Office, 942 F.3d 839, 850 (7th Cir. 2019).

Defendant argues that summary judgment must be granted in its favor on Plaintiff's reasonable accommodation claim because Sleeth was the party responsible for the breakdown in the interactive process to reach a reasonable accommodation, and thus Plaintiff cannot show that it failed to reasonably accommodate Sleeth's disability.⁷ Plaintiff responds that the responsibility for the breakdown in the interactive process belongs with Defendant.

Relevant to—and sometimes determinative of—the third element of a reasonable accommodation claim is the employer and employee's respective cooperation in an interactive process to determine a reasonable accommodation. Kinsella v. Baker Hughes Oilfield Operations, LLC, 66 F.4th 1099, 1104-05 (7th Cir. 2023). “Under the ADA, an employee begins the accommodation ‘process’ by informing his employer of his disability; at that point, an employer's ‘liability’ is triggered for failure to provide accommodations.’ ” Rednour v. Wayne Township, 51 F.Supp.3d 799, 825-26 (S.D. Ind. 2014), quoting Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 1060 (7th Cir. 2014). Once an employer's responsibility to provide reasonable accommodation is triggered, the employer must engage with the employee in an “interactive process” to determine the appropriate accommodation under the circumstances. Rednour, 51 F.Supp.3d at 826. “While the ‘interactive process’ is important, it is a means for identifying a reasonable accommodation rather than an end in itself[,]” and thus “because the process is not an end in itself, an employer cannot be liable solely for refusing to take part in it.” Sansone v. Brennan, 917 F.3d 975, 979-80 (7th Cir. 2019).

“Typically, the burden of ‘exploring’ reasonable accommodation lies with the employer.” Jackson v. City of Chicago, 414 F.3d 806, 813 (7th Cir. 2005). Still, “[b]oth parties are required to make a ‘good faith effort’ to determine what accommodations are necessary, but if a breakdown of the process occurs, ‘courts should attempt to isolate the cause ․ and then assign responsibility.’ ” Kinsella, 66 F.4th at 1105, quoting Lawler v. Peoria School District No. 150, 837 F.3d 779, 786 (7th Cir. 2016). The Seventh Circuit has further stated that “no hard and fast rule will suffice, because neither party should be able to cause a breakdown in the process for the purpose of either avoiding or inflicting liability. Rather, courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary.” Kinsella, 66 F.4th at 1105 (cleaned up). The Seventh Circuit has also “held that, when the parties are ‘missing information ․ that can only be provided by one of the parties, ․ the party withholding the information may be found to have obstructed the process.’ ” Jackson, 414 F.3d at 813, quoting Beck v. University of Wisconsin Board of Regents, 75 F.3d 1130, 1136 (7th Cir. 1996). A party that obstructs or delays the interactive process or fails to communicate, by way of initiation or response, is not acting in good faith. Kinsella, 66 F.4th at 1105.

During the January 5, 2019, video conference interview Sleeth informed West that he is deaf and would need an interpreter to complete the interview process, thereby putting West on notice of the need for a reasonable accommodation and triggering the interactive process. Although Peoples, Sleeth's sister, stated that West asked Sleeth if he had access to an interpreter and Sleeth said no, Sleeth testified that West never asked him that question and West herself had no recollection of asking it.

According to Ford, once Sleeth requested the accommodation, it would have been West's responsibility to obtain an ASL interpreter. Ford and West disagree on whether West ever received training or an explanation on what to do if someone requested an accommodation to complete the job application process, but according to Ford and Golden it would have been West's responsibility to contact either Defendant's Accommodation Hotline or direct the applicant to the Accommodation Hotline. Neither happened in Sleeth's case. In fact, the undisputed record indicates that nobody in Defendant's management was ever informed about Sleeth's request. West testified that she had multiple conversations with Hofer about Sleeth's request for an ASL interpreter, but Hofer has no recollection of any such conversation, and there are no written records that any such conversation occurred.

Having first requested an interpreter on January 5, Sleeth followed up with West on January 7, 2019, and spoke to her regarding the status of the interpreter. West told him Defendant was still trying to set up an interview with him. But West never called Sleeth back after that point, and Sleeth did not follow up with Defendant a second time.

Based on the foregoing, the court finds that there is a genuine issue of material fact as to which party was responsible for the breakdown in the interactive process.

Once Defendant, in the person of West, received notice of Sleeth's disability on January 5, 2019, it was incumbent upon it to determine, by engaging in an interactive process with Sleeth, whether a reasonable accommodation could be made, which entailed working with Plaintiff to produce a reasonable solution if one was available. See Spurling, 739 F.3d at 1062, citing 29 C.F.R. app. § 1630.9 (“Once an individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the individual with a disability.”). West then had the responsibility to work with Sleeth to reach a reasonable accommodation, i.e., the provision of the interpreter. From this moment, however, there is great confusion among Defendant's employees about what was told to Sleeth regarding the procurement of an interpreter, who had the responsibility among Defendant's various employees to procure an interpreter, and whether West had received any training from Defendant regarding how to handle such requests.

What is known is that Sleeth followed up with West two days later, and West told him that Defendant was still working on setting up the interview. At that point the ball was in Defendant's court. Sleeth had made a good faith effort to follow up with Defendant on the progress of obtaining an interpreter. West then failed to get back to Sleeth and further failed to obtain an interpreter to complete the interview process. The court finds that, taking all evidence in the light most favorable to Plaintiff and drawing all reasonable inferences therefrom, a reasonable juror could find that West was not acting in good faith by delaying the interactive process or at the very least failing to communicate with Sleeth, and therefore Defendant did not meaningfully respond to Sleeth's accommodation request and was the party responsible for the breakdown in the interactive process. See Kinsella, 66 F.4th at 1105; Leskovisek by next friend Stanley v. Illinois Department of Transportation, 506 F.Supp.3d 553, 565 (C.D. Ill. 2020).

Defendant argues that blame for the breakdown in the interactive process should be attributed to Sleeth, as he did not ask to use his video relay interpretation service to complete the interview or offer to provide an interpreter, “even though his mother had previously served as an interpreter during job interviews.”⁸ Defendant also argues that Sleeth failed to inform it that ASL interpreter services were available through the IDHS at no cost to himself.

Defendant's arguments are unavailing. The nature of the relationship between Sleeth and the video relay interpretation service utilized in the January 5, 2019, video call with West, is not clear from the record. No questions were asked of Sleeth with regard to that service, and whether it could have been used in conjunction with a formal job interview, or if it was available for use during an in-person interview. Regarding his mother, Jennifer, Sleeth testified that she was not very skilled in ASL and had only done a “so-so” job in prior job interviews. As it concerns the IDHS, Sleeth testified that he did not remember Stymets telling him that IDHS would provide ASL interpreters for job interviews, and Stymets himself testified that it could take time to schedule and arrange interpreters, especially around the holidays. Stymets further testified that IDHS would not provide an interpreter where the company had already provided one.

The court, at this stage, must view the evidence must construe the evidence in the light most favorable to Plaintiff and draw all reasonable inferences in favor of Plaintiff. See Singer, 593 F.3d at 533. Plaintiff made the initial request for an interpreter, which West said she would look into, and Sleeth even followed up two days later to check on the status of an interpreter and his interview. Sleeth testified West never asked him to provide or look into providing an interpreter on his end. There has been no assertion that Defendant could not provide an interpreter, and Defendant's own Management Guidelines state that reasonable accommodations can include interpreters, and that Defendant should provide a sign language interpreter during the hiring process if requested by an applicant. Yet, no one in Defendant's employ ever contacted Sleeth to set up an interview with an interpreter, or even looked into obtaining an interpreter to complete the interview process, whether due to internal miscommunication or failure to follow Defendant's own policies. This is hardly engaging with Sleeth to determine if a reasonable accommodation could be made. See Spurling, 739 F.3d at 1061-62. Therefore, the court finds that there is a genuine issue of material fact as to whether Sleeth was responsible for the breakdown in the interactive process, and Defendant's Motion must be DENIED as to Plaintiff's failure to accommodate claim.

 Punitive Damages

Defendant next argues that it is entitled to judgment with respect to Plaintiff's request for punitive damages. Defendant argues that Plaintiff cannot point to evidence sufficient to demonstrate that it engaged in any action relevant to this lawsuit with malice or reckless indifference to Sleeth's rights under the ADA. Specifically, Defendant argues that: (1) it has policies in place concerning reasonable accommodations for disabled individuals and the Accommodation Services Center to service accommodation issues; (2) it provides training on the ADA and disability rights; and (3) at the time of Sleeth's application, the Decatur store hired and employed for a lengthy tenure an individual with a hearing impairment.

Plaintiff responds that Defendant's policies and hiring of a hearing impaired employee are insufficient to preclude punitive damages. Plaintiff also notes that Defendant's initial position statement responding to Sleeth's Charge of Discrimination failed to identify West as having anything to do with Sleeth's hiring, and that the position statement maintained that no “Walmart Associate was aware of Mr. Sleeth's application.” Plaintiff argues this is evidence relevant to a punitive damages determination.

In response to this last point, Defendant argues that no relevant personnel of Defendant, including Ford, Kay, or Hofer, were aware of Sleeth and his disability, and that it has no record of West ever communicating Sleeth's request to Hofer. Defendant further argues that Plaintiff has failed to identify any authority demonstrating that it was obligated to identify West by name in its position statement when her role was limited to screening candidates for open hourly positions.

“Punitive damages are available for violations of the Americans with Disabilities Act if the defendant discriminated ‘with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’ ” E.E.O.C. v. Flambeau, Inc., 846 F.3d 941, 947 (7th Cir. 2017), quoting 42 U.S.C. § 1981a(b)(1). The U.S. Supreme Court established a three-part framework to determine whether punitive damages are proper under § 1981a. E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 835 (7th Cir. 2013), citing Kolstad v. American Dental Association, 527 U.S. 526, 533-46, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999).

“First, the plaintiff must show that the employer acted with ‘malice’ or ‘reckless indifference’ toward the employee's rights under federal law.” AutoZone, 707 F.3d at 835, citing Kolstad, 527 U.S. at 533-39, 119 S.Ct. 2118. “A plaintiff ‘may satisfy this element by demonstrating that the relevant individuals knew of or were familiar with the anti-discrimination laws’ but nonetheless ignored them or lied about their discriminatory activities.” AutoZone, 707 F.3d at 835, quoting Bruso v. United Airlines, Inc., 239 F.3d 848, 857-58 (7th Cir. 2001). “The terms ‘malice’ and ‘reckless’ focus on the employer's state of mind.” Flambeau, 846 F.3d at 947 (cleaned up).

Second, the plaintiff must establish a basis for imputing liability to the employer based on agency principles. AutoZone, 707 F.3d at 835. “Employers can be liable for the acts of their agents when the employer authorizes or ratifies a discriminatory act, the employer recklessly employs an unfit agent, or the agent commits a discriminatory act while ‘employed in a managerial capacity and ․ acting in the scope of employment.’ ” AutoZone, 707 F.3d at 835, quoting Kolstad, 527 U.S. at 542-43, 119 S.Ct. 2118, quoting Restatement (Second) of Agency § 217 C (1957).

“Third, when a plaintiff imputes liability to the employer through an agent working in a ‘managerial capacity ․ in the scope of employment,’ the employer has the opportunity to avoid liability for punitive damages by showing that it engaged in good-faith efforts to implement an anti-discrimination policy.” AutoZone, 707 F.3d at 835, quoting Kolstad, 527 U.S. at 544-46, 119 S.Ct. 2118. “This is a fact-intensive analysis, and ‘although the implementation of a written or formal anti-discrimination policy is relevant to evaluating an employer's good faith efforts ․, it is not sufficient in and of itself to insulate an employer from a punitive damages award.’ ” AutoZone, 707 F.3d at 835, quoting Bruso, 239 F.3d at 858.

For purposes of this Order, the court has identified the relevant individuals as West and Hofer, the only two employees of Defendant who were aware Sleeth's application and disability, although Hofer's knowledge is disputed. There is also testimony in the record that West and Hofer received training regarding the ADA and Defendant's equal employment opportunity policies, and on what to do if a job applicant requested an accommodation, although West denies receiving such training. A reasonable juror could also view Defendant's position statement to Plaintiff, in which it stated that Hofer was not familiar with Sleeth and was unaware of his disability, and that no “Walmart Associate” was aware of Sleeth's application, despite West's testimony to the contrary, as a lie to cover up its discriminatory actions. See Bruso, 239 F.3d at 858 (“A plaintiff may also establish that the defendant acted with reckless disregard for his federally protected rights by showing that the defendant's employees lied, either to the plaintiff or to the jury, in order to cover up their discriminatory actions.”). Thus, there is a genuine issue of material fact as to whether Defendant's relevant employees knew of or were familiar with the anti-discrimination laws but nonetheless ignored them or lied about their discriminatory activities. See AutoZone, 707 F.3d at 835.

Next, the court has already determined above that there is a genuine issue of material fact as to whether West was a decisionmaker with respect to Plaintiff's claims and thus committed a discriminatory act while employed in a managerial capacity and acting in the scope of employment. See AutoZone, 707 F.3d at 835.

Finally, Defendant, through the existence of its formal anti-discrimination policies and hiring of another hearing-impaired individual, has evidenced some good faith efforts on its end to combat discrimination.⁹ However, this is a fact-intensive analysis, and there are factual disputes in the record as to how Defendant implemented these policies and if the relevant front-facing employees in the applicant screening process received the necessary training. Regardless, “although the implementation of a written or formal anti-discrimination policy is relevant to evaluating an employer's good faith efforts ․ it is not sufficient in and of itself to insulate an employer from a punitive damages award.’ ” AutoZone, 707 F.3d at 835, quoting Bruso, 239 F.3d at 858.

For the above reasons, Defendant's Motion must be DENIED with respect to Plaintiff's punitive damages request.

IT IS THEREFORE ORDERED:

(1) Defendant's Motion for Summary Judgment (#87) is DENIED.

(2) This matter remains set for a jury trial on December 9, 2025, at 9:00 a.m., and a final pretrial conference on October 10, 2025, at 10:30 a.m., by video.

FOOTNOTES

1.   For the sake of simplicity, the court will refer to Wal-Mart Stores, Inc. and Wal-Mart Stores East, LP as a singular “Defendant.” Where necessary in the Order, the court will refer to the two entities as the singular “Walmart,” which is how Defendant refers to itself in its briefs.

3.   It is irrelevant in the instant context whether West was termed a “supervisor,” in the sense that she had the power over her employees to tangibly effect their employment status. Sleeth was not yet an employee of Defendant. What is important is whether the person who effected or was responsible for the adverse employment action was a “decisionmaker,” in that they had the power to take the relevant action.

4.   There is no dispute that Sleeth is disabled.

5.   As with the second prong of the failure to hire analysis, the court presumes that Defendant's skipping over the prima facie case portion of the McDonnell Douglas approach concedes those elements for summary judgment purposes only.

6.   That is to say, it is an argument Defendant could make. Defendant, in its Reply brief, offered no reply to the argument made by Plaintiff on this point in Plaintiff's Response. “A reply brief also can waive an argument by failing to respond to the opposing party's counterarguments or new arguments raised in the response brief.” Kyles v. Beaugard, 2023 WL 5277882, at *21 (N.D. Ill. Aug. 16, 2023), citing Bradley v. Village of University Park, 59 F.4th 887, 897 (7th Cir. 2023) (“An appellant may waive a non-jurisdictional issue or argument in many ways, such as by ․ failing to respond in a reply brief to a new argument raised by appellee.”); Webb v. Frawley, 906 F.3d 569, 582 (7th Cir. 2018) (“Yet because Webb did not respond to this point in his reply brief, he waived any counterarguments he could have raised.”). Rather, in its reply to Plaintiff's Additional Facts, Defendant merely repeated the statement that “Three individuals hired by Walmart as CAP 2 team associates in January 2019 had availability to work mornings on Saturdays and Sundays.” Instead of citing to any deposition testimony from its employees to support this statement and explain the written marks on Applicant 2's application, Defendant cites to three spreadsheets attached to its Motion for Summary Judgment (#87-28, #87-29, #87-30). But those spreadsheets do not definitively demonstrate that Applicant 2 worked weekend morning hours and the identities of who was working what hours on what days on the spreadsheets are blacked out, making them incredibly difficult for the court to interpret, and thus of little value to its analysis.

7.   Defendant is careful to note that, by only arguing that Sleeth was responsible for the breakdown in the interactive process, it does not concede that Sleeth was a qualified individual with a disability. Nor does it concede any other argument it could raise with respect to whether it failed to reasonably accommodate him. Defendant also argues that it cannot be held responsible because no “supervisor” was aware of Sleeth's claimed disability, but the court has already disposed of that argument. Thus, for summary judgment purposes, the only argument to be considered is who was responsible for the breakdown in the interactive process.

8.   Defendant makes no argument that Peoples could have served as Sleeth's interpreter.

9.   Plaintiff notes that the other deaf applicant hired by Defendant reads lips (Sleeth does not read lips), and was hired at a hiring event when the Decatur store had a different manager.

COLIN S. BRUCE, UNITED STATES DISTRICT JUDGE