    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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