I FORGOT!
by Peter S. Saucier

Comedian Steve Martin rode to fame in the 1970s on the crest of certain catch phrases that emphasized the silliness of most excuses offered to explain dumb behavior. One routine that brought gales of laughter was his suggestion that the perfect alibi for a person caught committing a bank robbery, upon being reminded that robbery is a crime, was to respond, in a drawn out, and shocked tone, "I FORGOT!" Officials at Wal-Mart Stores may recall that Martin routine with some heartburn following a trial judge's decision to allow a jury to decide whether that same defense excuses unsatisfactory performance under the Americans with Disabilities Act.

The Ferguson, Missouri, Wal-Mart hired Raymond Birton to work as a "peak time" stocker and cart gatherer. The job called for Birton to pitch in during particularly busy periods as an extra hand performing these simple tasks. Shortly after Birton began work, his mother complained that he was not being paid for the hours he worked because Birton forgot to clock in and out correctly. Birton's mother explained that Birton suffered from short and long term memory loss because of a head injury. In response to the time reporting problem, Wal-Mart had an employee regularly walk Birton to the time clock, and the personnel department consistently adjusted and corrected his pay checks when necessary.

Unfortunately, Birton's performance was not satisfactory. Birton frequently failed to wear his orange safety vest, often forgot to gather shopping carts in the parking lot, stopped to visit with people on the way to a task and forgot about the assigned task, failed to respond to intercom calls, "and often had trouble remembering what to do." When it came to time to reduce the work force, Wal-Mart selected Birton, who had been employed just shy of three months, as one of those to go. The decision was based in part upon his substandard performance.

Wal-Mart moved for summary judgment on the disability discrimination claim, but the court permitted the case to go to a jury because, "a reasonable trier of fact could conclude that Wal-Mart knew of Birton's further limitations, and thus became obligated to provide Birton with reasonable accommodation . . . ." I admit that I have a difficult time picturing the reasonable accommodation. Perhaps hiring an assistant to the "peak time" cart gatherer to remind the "peak time" cart gatherer to gather carts would be in order.

I do not mean to be insensitive to Birton's plight, but my sympathies are with Wal-Mart, even if it was trying to add to its self proclaimed image as a caring party of the community. And, if you have a problem with that, then EXCUSE ME!

May 2002

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