19 Year Old Sales Associate Prevails In Discrimination Suit Against Wal-Mart

Brady v. Wal-Mart Stores, Inc., ___F.3d___(2d Cir. July 2, 2008), is a well reasoned Americans with Disabilities Act case. The 2d Circuit affirmed a ADA jury verdict which was remitted down to $600,000 in compensatory damages and $300,000 in punitive damages due to Wal-Mart's transfer of a a 19 year old sales associate from the pharmacy department to the parking lot and then to the food service department. The most interesting part of the decision dealt with whether the transfer was an adverse employment action. As the court stated:

Although this transfer did not affect his wages or benefits, it resulted in a “less distinguished title” and “significantly diminished material responsibilities,” and therefore constituted an adverse employment action. Patrolmen’s Benevolent Ass’n of N.Y. v. City of New York, 310 F.3d 43, 51 (2d Cir. 2002) (internal quotation marks omitted); see also De la Cruz v. N.Y. City Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 21 (2d Cir. 1996). We cannot agree with Appellants that the short duration of Appellee’s transfer to the parking is a proper basis for finding, as a matter of law, that there no adverse employment action occurred. This is especially so in light of the fact that Brady was not transferred back to the pharmacy, but rather to the food department, which, although perhaps preferable to the parking lot, could still rationally have been found by the jury to be worse than the pharmacy. Because we find that Appellee presented sufficient evidence for the jury to find a specific adverse employment action, we need not reach his alternative claim that Appellants created a hostile work environment.

Mitchell H. Rubinstein