WILTON – A federal judge has denied Wal-Mart’s request for a summary judgment allowing a disabled former employee’s lawsuit to proceed.

Joanne DiDonna, 46, of Wilton, has a form of muscular dystrophy, a progressive, degenerative condition for which there is no treatment or cure, according to court documents.

She filed suit against the Farmington Wal-Mart alleging it failed either to accommodate her disability or to hire and/or transfer her due to her disability in violation of the Americans with Disabilities Act and the Maine Human Rights Act.

DiDonna took her case to the Maine Human Rights Commission, which upheld her side, and referred the matter to private counsel for litigation.

DiDonna also sought redress from the Equal Employment Opportunity Commission, which issued a right to sue letter, according to court documents filed in the United States District Court in Bangor.

Wal-Mart denied the allegations and filed for summary judgment. DiDonna objected to Wal-Mart’s motion.

Wal-Mart in Farmington had hired DiDonna on Jan. 9, 1993, initially as a part-time universal product code associate. Her application submitted the month before represented that she was in good shape, the document states.

“Wal-Mart considered Ms. DiDonna to be a good employee and she later became a full-time (product code) associate,” the document stated.

In 1997, DiDonna developed increased muscle weakness in her legs and a waddling gait, symptoms of her form of muscular dystrophy.

As time went on, her condition worsened. Between 1998 and 1999, she experienced increased muscle weakness in her legs, a decreased range of motion in her shoulders and arms, and lessened ability to remain standing or walking.

By 2000, her condition had further deteriorated to the point she had difficulty walking or standing for more than 15 minutes without increased weakness or pain. Her legs would give out. She was having dizzy spells and couldn’t raise her arms above chest height and suffered from extreme fatigue.

She did not go to the doctor for treatment because she figured it was muscular dystrophy, which ran in her family, and she would have to live with it.

During 2000, Wal-Mart announced that it was consolidating two positions into a back office position in Farmington and other Maine stores: the universal product code associate and the invoicing clerk position.

DiDonna held one position and another employee who was not disabled held the other.

Wal-Mart’s own policy mandates that when two candidates are qualified, priority should go to the disabled employee.

The manager at the time was aware that DiDonna had complained of some physical problem, the document stated. However, manager Frank Pushard selected the other employee for the consolidated position.

DiDonna was offered other positions, including as a full-time cashier, an accounting office and a team leader, but she couldn’t perform the jobs, even with accommodations.

Eventually she ended up resigning from the company and filed suit.

According to court documents, a fact finder could find that Wal-Mart made a transparent and illusory attempt to accommodate DiDonna’s restrictions in positions it offered.

perry@sunjournal.com

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