At the onset of the COVID pandemic, Walmart, along with many retailers, advertised that it would makes its stores accessible during off-hours to certain groups of disabled and elderly customers to “reduce their risk of contracting COVID-19 during regular business hours.” Walmart’s advertised “exclusive” shopping hour was one hour before the store opened and was available to customers who are elderly, disabled, or immunocompromised.

On May 12, 2020, Cheketa McKnight-Nero who suffers from several health conditions that compromise her immune system including diabetes and a rare blood cancer went to a Walmart store in Washington D.C. to shop during the exclusive shopping hour. McKnight-Nero was denied early access to the store because, according to McKnight-Nero, a security guard either didn’t believe she was immunocompromised or was told to only allow senior citizens access during the exclusive shopping hour.

Less than one month later, McKnight-Nero filed a class action against Walmart claiming it discriminated against her, and a potential class of thousands of individuals across the country, who were immunocompromised yet denied access to the exclusive shopping hour. In her complaint, McKnight-Nero asserted claims against Walmart for violations of the Americans with Disabilities Act (the “ADA”) and the District of Columbia Human Rights Act (the “DCHRA”) as well as a claim for negligent retention, training, and supervision.

Last week U.S. District Judge Amit P. Mehta granted Walmart’s motion to dismiss all of McKnight-Nero’s claims which also put an end to her motion for class certification. Judge Mehta’s 15- page opinion gives an in-depth discussion of the various types of disability discrimination claims, but essentially hinged on two major findings:

  • McKnight-Nero lacked standing to bring her ADA and DCHRA claims because she did not make a showing of a real or immediate threat that she would be harmed again from Walmart’s exclusive shopping program, stating that “harm in the past is not enough to establish present injury for a disability claim.” Specifically, Judge Mehta noted that the Plaintiff did not allege “any facts whatsoever” that either she would likely return to the same Walmart store during the exclusive shopping hours or that there was a likelihood that the same guard, or even a different guard, would exclude her on another occasion.
  • McKnight-Nero did not allege that she was denied access to the store because of her disability, a requirement for a disability disparate treatment claim such as the one Judge Mehta concluded McKnight-Nero was alleging. In fact, there was no way for the Walmart security guard to even know that McKnight-Nero suffered from any disability including one that suppressed her immune system. Judge Mehta cited to the seminal United States Supreme Court case of Raytheon Co. v. Hernandez, “a defendant cannot act ‘because of [a] disability’ if she is ‘entirely unaware that such disability exist[s]’”.

Finally, because McKnight-Nero’s disability claims fell by the wayside, she could not maintain her claim for negligent retention.

As of the writing of this Blog there is no indication of whether McKnight-Nero plans to appeal Judge Mehta’s ruling.

Harm in the past is not enough to establish present injury for a disability claim”