As the pandemic was hitting Ohio, the Sixth Circuit affirmed an employer’s summary judgment on ADA failure-to-accommodate and constructive discharge claims where the employee sought to work from home three days each week, but never produced any medical documentation showing that this request was required by his shoulder disability. Tchankpa v. Ascensia Retail Group, Inc., No. 19-1391 (6th Cir. 3-6-20). “The ADA is not a weapon that employees can wield to pressure employers into granting unnecessary accommodations or reconfiguring their business operations. Instead, it protects disabled employees from disability-related mistreatment—no more, no less.” The Court found that requested accommodations are reasonable only if they “address a key obstacle preventing [the employee] from performing a necessary function of [his job.]” Further, “[a]n employee might not always need to show his accommodation is medically necessary to win a failure to accommodate claim. But he must do so when asked by his employer.” Finally, the constructive discharge claim failed because he failed to show an objectively intolerable workplace or nexus from any intolerable working conditions and his disability.
According to the Court’s opinion, the plaintiff transported laptops to and from his office as part of his job. He began seeking treatment for shoulder pain in October 2012 and claimed to have injured it at work in December 2012, but did not report a workers’ compensation injury until May 2013. He claimed that it impeded daily activities, like bathing, cooking and driving, etc. He sought treatment from many providers and had many different diagnosis. He obtained treatment for pain until at least 2017. Despite several requests from his employer (which had permitted him to arrive late and leave early for medical appointments), he did not seek a medical opinion about his opinion to work until October 2013.
The employer made clear that he could not regularly work from without supporting medical documentation from a medical provider. Although the plaintiff requested to work from home three days each week, the only documentation the plaintiff provided stated that he could work as long as he had intermittent breaks and did not lift over 10 pounds. The plaintiff pointed out that other employees were permitted to work from home, but was told this had nothing to do with his should injury. (After all, employers may not reveal the medical conditions of other employees, etc.). When the conversation became tense, security was called. The next day, the employer reiterated that the plaintiff could not work from home or transfer, but he could resign if he was unhappy. The plaintiff then lodged an internal complaint of workplace harassment and discrimination, but then also emailed a new proposal for taking time off from work. However, instead of filing a request for a leave of absence, the plaintiff ultimately resigned on the grounds that he was not provided sufficient training or appreciation. He filed suit three years later.
Because this was a failure-to-accommodate case, the Court utilized a multi-partdirect evidence framework:
(1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The plaintiff bears the burden of establishing that he or she is “otherwise qualified” for the position despite his or her disability: (a) without accommodation from the employer; (b) with an alleged “essential” job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.The plaintiff’s claim failed in this case because
he omits a key requirement: proposing a reasonable accommodation. And requested accommodations are reasonable only if they “address a key obstacle preventing [the employee] from performing a necessary function of [his job . . . . . So a disabled employee cannot ask to work from home for convenience and then sue under the ADA if that request is denied.
Employers also bear responsibilities when receiving a requested accommodation. They must consider: “(1) the particular job involved, its purpose, and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee . . . . Along with these factors, an accommodation is likely unreasonable if it frustrates attendance or creates “an unlimited ability to leave work[.]” . . . .Finally, the employee and employer must engage in “an informal, interactive process” to negotiate an accommodation that allows the disabled employee to work despite his limitations. . .
During this process, the disabled employee’s requested accommodation does not bind his employer. For instance, employers may require documentation supporting an employee’s requested accommodation. . . . . In Kennedy, the employer made “numerous attempts to acquire medical documentation [describing its employee’s condition] and [the employee] persistently refused to cooperate.” Id. And the court ruled that the employer had a right to assess its employee’s medical condition before greenlighting a proposed break schedule. Id. It follows that an employee’s failure to provide requested medical documentation supporting an accommodation precludes a failure to accommodate claim. Even more, employers need not immediately implement or accept accommodations proposed by an employee. . . . So a delay in providing a reasonable accommodation is not always actionable. . . .
. . . Accommodations must be “necessary” considering the employee’s “physical limitations.” . . . And it’s hard to imagine a physically necessary accommodation that isn’t medically necessary. Thankfully we need not attempt that exercise. That’s because Ascena requested medical documentation tying Tchankpa’s work-from-home request to his injured shoulder. As a result, Tchankpa needed to provide that documentation. An employee might not always need to show his accommodation is medically necessary to win a failure to accommodate claim. But he must do so when asked by his employer. . . .
In short, Tchankpa bore two burdens: He needed to (1) show his work-from-home request was reasonable and (2) provide Ascena with medical documentation supporting the accommodation’s necessity. He did neither. Although Tchankpa provided Ascena proof of his injury, that document didn’t touch upon Tchankpa’s inability to perform the job. If anything, Dr. Stacy’s report confirmed that Tchankpa could do his job without working from home. . . . .
What’s more, Tchankpa did not give a satisfactory response to Ascena’s request for medical documentation. Under Kennedy, employers are entitled to medical documentation confirming the employee’s disability and need for accommodation. . . . And Ascena invoked that right in early 2013. Yet Ascena did not receive documents discussing Tchankpa’s medical restrictions until October 2013. Far from showing a necessary accommodation, Dr. Stacy’s report stated that Tchankpa could work eight hours per day, five days per week. Without medical documentation showing that Tchankpa’s disability required work from home, Ascena had no duty to grant Tchankpa’s request. After all, we presume on-site attendance is an essential job requirement. . . .
The Court also rejected the plaintiff’s constructive discharge claim on the grounds that he failed to show an objective intolerable workplace.
But intolerability is a demanding standard. For instance, we have said that demotion, reduction in salary, badgering, harassment, humiliation, and sexual assault suggest an objectively intolerable workplace. . . .
Yet criticism and negative feedback do not suffice, especially when contained to a few isolated incidents. . . . And an employee’s subjective discontent does not create an ADA claim. . . . .
. . .
First, receiving negative feedback without consequence does not implicate the ADA. After all, Tchankpa resigned without receiving formal punishment from Ascena. So nothing serious came from Ascena criticizing Tchankpa. . . What’s more, Ascena gave Tchankpa flexible hours to seek treatment for his shoulder. Even Tchankpa’s resignation letter airs no grievances relating to his physical limitations—he mostly complains that Ascena didn’t appreciate him or invest in him enough. . . .
That leaves us with the alleged termination threat. Ascena allegedly told Tchankpa that it might fire him if he violated its time off policy by seeking treatments during work hours. And when Tchankpa insisted on working from home three days per week, Ascena reminded him that he could quit if he didn’t like his job’s requirements. So he argues that these facts show Ascena pressured him to leave. But Ascena only insisted that Tchankpa accept its denial of his work-from-home request. As shown above, Ascena permissibly denied Tchankpa’s proposed accommodation. So even forcefully reiterating this lawful denial is not a threatened termination. Facing repeated prodding from its employee, Ascena eventually put its foot down to enforce its decision. Thus we cannot conclude that, as for Tchankpa’s termination, “the handwriting was on the wall and the axe was about to fall.” . . . Without the immediate or credible threat of adverse action, Ascena’s comments about Tchankpa leaving his job did not create an objectively intolerable workplace.
As for proving an employer’s subjective intent to constructively discharge the plaintiff, the Court agreed that this requirement may no longer be required. Nonetheless,
This is not to say that Tchankpa would win under Green simply by showing an objectively intolerable workplace. Even under Green, it cannot be the case that objectively intolerable conditions faced by all workers would give rise to an ADA claim. In other words, disabled employees could not recover under Green because they quit over conditions equally offensive to both disabled and able-bodied employees. We know that because Green focuses on “circumstances of discrimination” and whether “the discrimination [was] bad,” and not on general circumstances of the workplace. Id. at 1780. So Green, even if it eliminates our current subjective intent requirement, does not permit a constructive discharge ADA claim just because a disabled employee suffers an objectively intolerable workplace. Employees invoking Green would still need to show a nexus between their disability and the intolerable workplace, even if they need not show that the employer created the substandard workplace with the intent to oust that employee.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.