By Dorothy Atkins

Law360 (February 19, 2021, 4:39 PM EST) -- A D.C. federal judge handed Walmart a win Friday in a proposed class action claiming it discriminated against immunocompromised individuals by relying on security guards to determine who is eligible to shop during exclusive pandemic shopping hours set aside for disabled people.

In a 15-page opinion, U.S. District Judge Amit P. Mehta wrote that because the lead shopper plaintiff "alleges that the security guard disbelieved that she was disabled and treated her as if she did not have a disability," she cannot claim that she was discriminated against on the basis of her disability in violation of D.C.'s Human Rights Act.

"[The language of the DCHRA] does not, as plaintiff suggests, negate the statute's causality requirement or protect someone mistakenly regarded as not disabled from being treated the same as nondisabled customers," the judge wrote. "That is simply not the purpose of anti-discrimination laws."

The ruling marks an end to a lawsuit that Cheketa McKnight-Nero filed in June, saying the retail giant's practice of having security guards decide who qualifies as disabled or immunocompromised violates the federal Americans with Disabilities Act, the DCHRA, and common law prohibiting negligent hiring and training of personnel.

During the COVID-19 pandemic, Walmart has designated exclusive shopping times, usually early in the morning, for elderly, disabled and immunocompromised people to do their shopping while the store is less busy to prevent them from coming into contact with more people than necessary, according to court documents.

McKnight-Nero, who is diabetic and has a rare blood cancer, tried to visit a D.C. Walmart in May during the restricted shopping hours, but claims in her suit she was turned away by the security guard. The guard, she said, didn't believe she was immunocompromised and wouldn't permit her to enter during the exclusive hours.

In August, Walmart filed a motion to dismiss the lawsuit for good, and days later, McKnight-Nero asked the court to certify a class of potentially thousands of immunocompromised Walmart shoppers. But before the class certification motion was fully briefed, Judge Mehta granted Walmart's request to toss the case and denied the class certification request in light of the dismissal.

In his ruling Friday, Judge Mehta said McKnight-Nero has failed to allege "any facts whatsoever" that shows she would likely return to the D.C. store during the exclusive shopping hours and be injured by Walmart in the future.

He added that a "bare assertion" that she would return wouldn't be enough to establish that she faces a "real and immediate threat" of being harmed again, and therefore she doesn't have standing to seek injunctive relief under the ADA.

"[McKnight-Nero's] allegations say nothing about the likelihood that another guard, or even the same guard, would make the same mistake on another occasion," the order says.

Judge Mehta said McKnight-Nero's DCHRA claims appear to be duplicative and she doesn't specify which provisions of the statute her claims invoke. Regardless of which provisions of the statute are at issue, her pleadings fall short and can't proceed, the judge said.

Judge Mehta explained that her D.C. claims for disparate treatment fail because she doesn't sufficiently allege that she was denied entrance due to her disability.

The judge also noted that Walmart's written policy states that people who are not disabled can't shop during its exclusive hours, and the complaint doesn't claim that the policy disproportionately favors one set of disabled persons over another.

"Plaintiff does not identify or otherwise hint at a single person other than herself who was wrongly denied access to Walmart's exclusive shopping hour," the order says.

In light of the findings on the other claims, McKnight-Nero's remaining common law negligence claim fails too, because she hasn't sufficiently established that a security guard discriminated against her due to her disability, and a purported statutory violation cannot give rise to a negligent training claim.

Walmart said in a statement Friday that the company is pleased the court dismissed the case.

"Walmart strives to treat all customers with respect and dignity," the statement says. "This unprecedented pandemic has challenged all of us."

Counsel for McKnight-Nero didn't immediately respond Friday to requests for comment.

McKnight-Nero and the proposed class are represented by Ikechukwu Emejuru of Emejuru Law LLC, and Andrew Nyombi of KNA Pearl Law LLC.

Walmart is represented by John M. Majoras, Yaakov M. Roth, William G. Laxton Jr. and Debra R. Belott of Jones Day.

The suit is McKnight-Nero v. Walmart Inc., case number 1:20-cv-01541, in the U.S. District Court for the District of Columbia.

--Additional reporting by Lauren Berg. Editing by Adam LoBelia.

Update: This story has been updated to include a comment from Walmart.

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