Chantel L. Alberhasky and William G. Petrus, The Law Offices of Robert M.N. Palmer, P.C., for plaintiff; and Pamela D. Connolly and Gregory Muzingo, Wal-Mart Stores, Inc., Corporate Office, and David Sullivan, Schmidt, Kirby & Sullivan, PC, for defendant.

In 1992, Kembel was hired by Wal-Mart as a photo lab manager. In 1995, Kembel's right shoulder was fractured when he tried to stop a shoplifter. A few months later he reinjured his shoulder & strained his back when he was lifting photographic paper. The following year he was diagnosed with post-traumatic fibromyalgial. Prior to his injuries, Kembel received high ratings on his annual reviews but shortly after his injuries, his reviews became more critical and he began to receive low ratings. In January 1997, Kembel's doctor restricted him to office duties if he worked full-time or he could work part-time with no restrictions. Wal-Mart placed Kembel on a 12-week medical leave working a reduced schedule. At the end of his medical leave, Wal-Mart management contacted Kembel's doctor and asked him for an opinion as to whether Kembel had reached maximum medical improvement (MMI). Kembel's doctor informed Wal-Mart that Kembel had reached MMI and further stated Kembel was not to lift over 20 lbs., not to bend frequently or work overhead. After receiving said letter, Wal-Mart informed Kembel he could no longer perform all 26 job functions listed as esseential on Wal-Mart's Photo Lab Job Matrix. Wal-Mart demoted Kembel to a specially created part-time position.

Plaintiff claimed that Wal-Mart demoted him because of his disability and because of a perception that he was disabled. Plaintiff claimed that the photo lab manager was a supervisory position. He further claimed that the 26 functions listed by Wal-Mart included every job performed in the lab and that many of the tasks were performed by lab technicians and not the manager. Plaintiff further claimed that Wal-Mart could have reasonably accommodated him by allowing others to assist him in lifting heavy objects or Wal-Mart could have transferred him to an open full-time position in the cash office.

Case settled for a confidential amount April 2001, one month before trial.