Noel v. Wal-Mart Stores, East LP ( 2019 )

18-1139-cv
Noel v. Wal-Mart Stores, East LP
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 11th day of March, two thousand nineteen.
PRESENT:
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges,
PAUL G. GARDEPHE,*
District Judge.
WILLIAM D. NOEL,
Plaintiff-Appellant,
v. No. 18-1139-cv
WAL-MART STORES, EAST LP,
Defendant-Appellee,
WAL-MART STORES, INC.,
Defendant.
Appearing for Plaintiff-Appellant: CRAIG WEATHERLY, Burlington, VT.
* Judge Paul G. Gardephe, of the United States District Court for the Southern District of
New York, sitting by designation.
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Appearing for Defendant-Appellee: MELINDA J. CATERINE, Littler Mendelson,
P.C., Portland, ME.
Appeal from a judgment of the United States District Court for the District of
Vermont (Sessions, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on March 20, 2018, is
AFFIRMED in part and VACATED in part and the case is REMANDED for further
proceedings.
Plaintiff-Appellant William D. Noel appeals from the judgment of the district
court dismissing his amended complaint for failure to state a claim. Noel was
formerly employed by Defendant-Appellee Wal-Mart Stores, East LP (“Walmart”) as
a pharmacist manager. In April 2016, Walmart announced that, beginning on April
16, 2016, all new pharmacy employees would be required to be certified to administer
immunizations and all incumbents would be required to be so certified by October 16,
2016 (the “April Announcement”).
Noel, who suffers from trypanophobia (or needle phobia), sought an “exemption
from this alteration of his job description,” J. App. 8, under the Vermont Fair
Employment Practices Act (“VFEPA”), Vt. Stat. Ann. tit. 21, §§ 495 et seq. On July
19, 2016, he received a letter informing him that his request had been granted (the
“July Letter”). Specifically, Noel asserted that the July Letter indicated that he had
been “granted the accommodation . . . requested, without qualification or condition,”
that he “was capable of performing the essential functions of his position, and that
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[Walmart] was reasonably accommodating his disability.” J. App. 8–9. The July
Letter also provided that the approval of Noel’s accommodation was subject to further
review under certain conditions subsequent, including a change in his job description.
According to Noel, however, his job description was not altered at any time following
his receipt of the July Letter.
Nonetheless, in October 2016, a Walmart representative informed him that he
would have to obtain certification to continue his job, which Noel declined to do. Noel
claims that he was constructively discharged at this time. He then brought this
lawsuit asserting wrongful discharge under the VFEPA as well as common-law
claims sounding in breach of contract. The district court dismissed for failure to state
a claim, concluding that Noel failed to allege that he could perform the essential
functions of his job and that the July Letter was insufficient to support his breach
claims. This appeal follows. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
“We review de novo the grant of a Rule 12(b)(6) motion to dismiss for failure to
state a claim, accepting all factual allegations as true and drawing all reasonable
inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs Pension Fund v. Ivy
Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To survive a 12(b)(6) motion, the
complaint must contain sufficient factual matter, accepted as true, plausibly to give
rise to an entitlement to relief. Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015).
Although a complaint “does not need detailed factual allegations,” see Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007), Rule 8 of the Federal Rules of Civil Procedure
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“demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation,” see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Documents outside of the pleadings are not generally considered in the context
of a motion to dismiss. Chamber v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir.
2002). However, “[a] complaint is also deemed to include any written instrument
attached to it as an exhibit, materials incorporated in it by reference, and documents
that, although not incorporated by reference, are ‘integral’ to the complaint.” L-7
Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (alteration omitted)
(quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)).
The district court concluded, based in part on the April Announcement and a
November 2016 description of Noel’s former job (the “November Job Description”),
that administering immunizations was an essential function of Noel’s job. In doing
so, the district court discounted the July Letter, in which Walmart stated that
administering immunizations was not an essential job function; according to the
court, the letter stated “a mere conditional exemption, explicitly subject to revision at
any time.” J. App. 39–40. On appeal, Noel principally challenges this conclusion.
When considering whether a job function is “essential,” “this Court considers
‘the employer’s judgment, written job descriptions, the amount of time spent on the
job performing the function, the mention of the function in a collective bargaining
agreement, the work experience of past employees in the position, and the work
experience of current employees in similar positions.’” Stevens v. Rite Aid Corp., 851
F.3d 224, 229 (2d Cir. 2017) (quoting McMillan v. City of New York, 711 F.3d 120,
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126 (2d Cir. 2013)). Although a court “must give considerable deference to an
employer’s judgment regarding what functions are essential for a service in a
particular position,” id. (quoting Shannon v. N.Y.C. Transit Auth., 332 F.3d 95, 100
(2d Cir. 2003), “no one listed factor will be dispositive,” id. (quoting Stone v. City of
Mount Vernon, 118 F.3d 92, 97 (2d Cir. 1997). As Noel repeatedly stresses, “[c]ourts
must conduct ‘a fact-specific inquiry into both the employer’s description of a job and
how the job is actually performed in practice.’” Id. (quoting McMillan, 711 F.3d at
126).
In Stevens, this Court tackled the claims of another trypanophobic pharmacist.
There, Stevens had asserted nearly identical claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., stemming from Rite Aid’s plan to
implement a policy requiring pharmacists to administer immunization injections.
Stevens, 851 F.3d at 226–27. After being informed of the policy, Stevens sought an
exemption from the policy as a reasonable accommodation under the ADA and
submitted medical evidence supporting his condition. Id. at 227. Rite Aid responded
that the ADA did not cover trypanophobia, that Rite Aid would not accommodate
Stevens, and that he would lose his job if he did not acquire the requisite certification.
Id. at 227–28. When Stevens declined to get the certification, Rite Aid fired him for
being unable to perform an essential function of his job. Id.
Stevens’s case went to trial, and we summarized the relevant evidence as
follows:
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 Rite Aid personnel testified that it had made a business decision to
require all pharmacists to administer immunizations so that customers
could receive immunizations any time the pharmacy was open.
 Rite Aid revised its job description to require certification and to include
immunization in the list of “essential duties and responsibilities.”
 Another pharmacist was fired for not complying with the certification
program.
Id. at 228–29. We concluded from this evidence, and Stevens’s lack of contradictory
evidence, that “his inability to perform an essential function of his job as a pharmacist
is the only reasonable conclusion that could be drawn from the evidence.” Id. at 230.
Here, Noel’s allegations, accepted as true, and the documents submitted by
Walmart demonstrate the following:
 The April Announcement stated that Walmart intended the certification
program to ensure that customers could receive “year-round
immunization services” “no matter which store they visit[ed].” J. App.
13.
 The April Announcement referred to the certification program as a
“minimum qualification,” and the November Job Description listed
immunizations as an essential function of the job. Id. 13, 17–20.
 The July Letter stated that administering immunizations was “not
considered to be an essential function of [Noel’s] position,” and Noel
alleged that no change in his job description occurred after his receipt of
this letter. Id. 9, 17.
Although the first finding in Stevens mirrors the evidence supporting
Walmart’s position in this case, the second Stevens finding differs significantly from
Noel’s allegation here, especially in light of the third factor highlighted in this case.1
In Stevens, it was undisputed that Rite Aid changed the job description for
pharmacists to include immunizations as an essential duty of the position. Here,
however, Noel specifically alleges that his job description had not yet changed as of
1 Noel does not argue that Walmart’s failure to identify another pharmacist for refusing
certification (the third factor highlighted in Stevens) distinguishes this case from that one.
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the time of his constructive discharge, and Walmart’s July letter—which grants him
an accommodation on the ground that administering injections was not an essential
function of the job—tends to support that allegation. The question then becomes
whether the district court was correct when it held that, even taking the factual
allegations of the complaint as true, administering injections was an essential
function of Noel’s job.
We conclude that it was not. First, the court relied in its analysis on the
November Job Description provided by Walmart in its motion-to-dismiss papers. But
this document, which postdated Noel’s alleged constructive discharge, was neither
referenced in nor relied upon by the complaint and should therefore not have been
considered on a motion to dismiss.2 Second, the district court relied on a copy of the
April Announcement, also provided by Walmart. This document, which was
incorporated by reference in the complaint, adds some weight to Walmart’s argument
that administering immunizations was an essential function of Noel’s job, at least as
of October 16, 2016, when the policy went into effect for Noel.
Nonetheless, the July Letter specifically states that administering
immunizations was not an essential function of Noel’s job, and Noel has specifically
alleged that his job description was not altered after his receipt of this letter.
2 Noel has arguably forfeited any challenge to the district court’s consideration of the
November Job Description by failing to address it adequately in his brief. In any event,
avoiding impermissibly drawing inferences in favor of the moving party, Walmart, we note
the November Job Description speaks only to Walmart’s view of administering
immunizations after Noel’s allegedly wrongful discharge and thus is not controlling as to
whether Walmart considered giving shots an essential function of Noel’s job when he was
discharged.
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According to Noel, this is sufficient to demonstrate, at the pleading stage, both that
administering immunizations was not an essential function of his job and that no
condition subsequent was met that would allow Walmart to revisit its grant of an
accommodation.
We agree. Although a district court may discredit a complaint’s allegations
where attached documentary evidence belies the allegations in the complaint, there
is no such contradiction here. See L-7 Designs, Inc., 647 F.3d at 422 (on review of a
Rule 12(c) motion, all facts from complaint are assumed true, “unless contradicted by
more specific allegations or documentary evidence—from the [c]omplaint and from
the exhibits attached thereto”). The only way to arrive at the conclusion reached by
the district court—that it was established as a matter of law that administering
immunizations was an essential function of Noel’s job—is to both discredit Noel’s
well-pleaded allegation and discount Walmart’s own July statement. This a court
may not do on a motion to dismiss. At least at this stage of the litigation, the district
court erred by concluding, as a matter of law, that administering immunizations was
an essential function of Noel’s job.
We do, however, affirm the district court’s dismissal of Noel’s common-law
claims on the following grounds. See, e.g., Wells Fargo Advisors, LLC v. Sappington,
884 F.3d 392, 396 n.2 (2d Cir. 2018) (“We are free to affirm on any ground that finds
support in the record, even if it was not the ground upon which the trial court relied.”
(internal quotation marks and alteration omitted)). Noel provides no authority for
the proposition that the grant of a VFEPA accommodation is sufficient to modify the
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terms of an at-will employment contract. Cf. Ross v. Times Mirror, Inc., 665 A.2d
580, 584 (Vt. 1995) (discussing how employment handbooks or other policies may
alter the terms of employment where “the employer chooses, presumably in its own
interest, to create an environment in which the employee believes that, whatever the
personnel policies and practices, they are established and official at any given time,
purport to be fair, and are applied consistently and uniformly to each employee,” such
that the employer has “created a situation instinct with an obligation” (internal
quotation marks omitted)). His only alleged “detrimental reliance” for his
promissory-estoppel claim—his participation in Walmart’s reasonable-
accommodation process—necessarily predated the alleged promise of an
accommodation. And he failed to allege facts from which it could be plausibly inferred
that Walmart’s rescinding of the accommodation was “cruel or shocking to the
average [person’s] conception of justice,” as required to sustain his public-policy
claim. See Adams v. Green Mountain R.R. Co., 862 A.2d 233, 235 (Vt. 2004) (internal
quotation marks omitted).
We have considered Noel’s remaining arguments and find them to be without
merit. The judgment of the district court is AFFIRMED in part and VACATED in
part, and the case is REMANDED for further proceedings consistent with this order.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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