Sixth Circuit Finds Excellent Customer Service Requirements Doom ADA Claim

 

Last month, the Sixth Circuit affirmed an employer’s summary judgment on claims for disability discrimination and failure to accommodate when, after several options failed, it transferred the plaintiff delivery driver to an open overnight warehouse non-customer facing position after receiving repeated complaints about the plaintiff’s profane and racists outbursts caused by his disability.  Cooper v. Dolgencorp, LLC, No.  23-5397 (6^th Cir. Feb. 15, 2024).   The Court noted that the plaintiff stipulated that excellent customer service was an essential job function and that the plaintiff’s own physician indicated that he required an accommodation (i.e., a constant co-worker to handle the customer serving functions on his route).  The Court noted that “the ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts.” Further, the plaintiff could not identify any open delivery positions which did not require excellent customer service.   Finally, the Court rejected his constructive discharge claim because the employer tried most of his accommodation requests, including medical leave, a seasonal driver-helper and was not deliberately indifferent.  “Although “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge,” . . . that is not the case here.”

According to the Court’s opinion, the plaintiff delivery driver would regularly exhibit ticks and utter profane sexist and racist outbursts while delivery cola and setting up displays inside customer stores.  This lead to complaints about him from the customers and their customers and employees.   His job description required that he provide excellent customer service.   The plaintiff was granted several medical leaves to adjust his medication and to attempt different therapies.  He was also provided with a seasonal helper who could handle the customer-facing roles, but there were still complaints.  His physician indicated that he required a helper in order to perform his customer-facing duties.  Although the plaintiff requested to be transferred to other routes without customer facing duties, there were no vacancies in those routes and one had changed from non-customer facing to customer facing.  As a result, he was offered a vacant overnight warehouse position (with a cut in pay) where he would not have to interact and offend customers.   After working there for a few months, he resigned -- indicating that there were no hard feelings -- because he found another delivery driver job with customer-facing duties where the customers were not offended.    He then filed suit alleging that his warehouse transfer was discriminatory, that he could perform his job without a reasonable accommodation, and that he was constructively discharged. 

The Court agreed that excellent customer service was an essential job function.  First, it was noted in his job description.  Second, the plaintiff stipulated that excellent customer service was an essential job function.

A reasonable jury could not find that [the plaintiff] could provide excellent customer service to [the employer’s] customers in his role as a delivery merchandiser without an accommodation. Of particular importance, [his] own doctor noted that [he] needed an accommodation to perform his job duties. When a plaintiff’s own doctor—not merely the defendant employer— concludes that the plaintiff cannot perform his job without an accommodation, the plaintiff likely cannot establish that he is otherwise qualified to perform the job without an accommodation .  . .  [His] disability, moreover, caused him to vocalize racist and profane words in the presence of others in the stores of [the employer’s] customers. At various times during his employment, [its] customers complained about the language he used while delivering [its]  products. In fact, [he] acknowledges many of the customer complaints made against him in his amended complaint.

His need for a reasonable accommodation was further demonstrated by the medical leaves that he took and his request for a helper to handle the customer-facing aspects of his duties.

The Court rejected his argument that his comments were generally indecipherable because enough of them had been understood by complaining customers.  The Court also rejected his argument that his involuntary sexist and racist comments were not frequent enough to justify the transfer, thus creating

 

a factual dispute remains about the number of complaints customers made against him. It is undisputed, however, that [he] offended [the employer’s] customers at least twice with his use of racist and profane language, and the ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts. The specific number of complaints made against [him] is also immaterial because [he] contends that his verbal tics using inappropriate language remained consistent throughout his employment.

The Court also rejected his failure to accommodate claim. The plaintiff failed to identify any open delivery routes without customer facing duties.  While he contended that the Dollywood route had been non-customer facing when he previously drove it, he produced no evidence to dispute that the customer’s system had since changed, making it also a customer-facing route.

“Where the requested accommodation is a job transfer, ‘employers have a duty to locate suitable positions for’ employees with disabilities.”  . . . Still, “this duty does not require employers ‘to create new jobs [or] displace existing employees from their positions . . . to accommodate a disabled individual.’”  . . .  Nor does a reasonable accommodation require employers to eliminate or reallocate an essential job function.  . . . A “reasonable accommodation” under the ADA can include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).

                         . . . .

However, “[a]n employer may reassign an employee to a lower grade and paid position if the employee cannot be accommodated in the current position and a comparable position is not available.”  . . .. And as we explained above, [he] could not perform the delivery merchandiser position without an accommodation, and he failed to propose an objectively reasonable accommodation. Thus, [the employer’s] accommodation, via transfer to a warehouse position, was reasonable.

Finally, the Court rejected his constructive discharge claim.

To establish a claim for constructive discharge, a plaintiff must prove: (1) the employer deliberately created working conditions that a reasonable person would perceive as intolerable, (2) the employer did so to force the employee to quit, and (3) the employee quit.  . . . . Constructive[1]discharge claims require courts to examine “both the employer’s intent and the employee’s objective feelings.”  . . .  [His] claim fails at the second element—he cannot show that [his employer] deliberately created intolerable working conditions with the intention of forcing him to quit.

Each time [he] requested an accommodation from [his employer], the company provided one. For example, after the incident at the Dollar General store in early 2018, [it] adjusted [his] route so that he would not have to service Dollar General stores. And after Cooper submitted a request to be put on a truck with another driver in August 2018, [it] temporarily allowed him to work as a driver helper. Although “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge,”  . . . that is not the case here.

In fact, [he] admits [it] provided him with the warehouse position as an accommodation. Of course, he preferred a different accommodation. But the evidence demonstrates that [it] offered [him] a vacant position that was as close as [it] could get to his delivery merchandiser job. What is more, [he] admitted that when he resigned, he told his supervisor that he held nothing against [the employer].

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.

 

Sixth Circuit Rejects Shortened Limitations Periods Under Title VII, the ADA and the ADEA, but Affirms that Employee Could Not Show She Was Singled Out

 

Last month, the Sixth Circuit expanded its earlier prohibition against the contractual shortening of limitations periods from Title VII claims to cover the ADA and the ADEA as well, but agreed that the contract would still apply to shorten the limitations periods applying to ERISA, §1981 and Ohio Civil Rights Act claims.    Thompson v. Fresh Products LLC, No. 20-3060 (6^th Cir. Jan. 15, 2021).    In addition, the Court affirmed the employer’s summary judgment on the employee’s discrimination and failure to accommodate claims on the grounds that she failed to show that she was singled out for the RIF on account of her race, age or disability and because being able to work a full shift on the assembly line was an essential function of her job.  Among other things, her sample sizes were too small to provide a meaningful statistical analysis. 

According to the Court’s decision the Plaintiff was hired in July 2016, worked the third shift and was one of the company’s most productive employees on the assembly line.  Upon being hired, she signed an Employee Handbook Acknowledgment which shortened the time period for suing the employer to six months, or such reasonable time if a court later found six months to be too short.     In October, she requested to work part-time on account of arthritis in her back.  While her supervisor agreed to look into it, no one responded to her request.  Later, the company realized that it needed to reduce its workforce and requested which staff would agree to work 10-hour shifts instead of 8-hour shifts.  Plaintiff was the only employee who did not agree to work a 10-hour shift (due to child care responsibilities) and was ultimately laid off at the end of January along with three other employees (and two others who had either had indicated that they could or would no longer work). 

The Plaintiff promptly filed OCRC and EEOC Charges under Title VII, the ADA and the ADEA.  She filed suit within 90 days after her Charge was dismissed.  The trial court granted summary judgment to the employer and the Sixth Circuit affirmed that she failed to satisfy her prima facie burden of proof.  

The first issue involved whether her lawsuit was timely when it was filed more than six months after she was laid off.   The Court agreed that the Employee Handbook Acknowledgement barred her OCRA claims under Ohio law.  However, it found that the limitations periods for claims under Title VII, the ADA and the ADEA were substantive statutory rights which could not be limited by contract, especially considering the national policy in favor of a uniform limitations period.  (Of course, never mind that the limitations period to file a Charge is not uniform).  Accordingly, it found her federal claims to be timely.

The Court rejected her failure to accommodate claim because her request to work part-time was unreasonable and because the Sixth Circuit does not recognize an independent cause of action for an employer’s failure to engage in the interactive process.    While the duty to engage in the interactive process is mandatory, “failure to engage in the interactive process does not give rise to an independent claim.”  She failed to carry her burden of proving that her requested accommodation was objectively reasonable.  No other employee was permitted to work part-time on that production line and the Court refused to consider the fact that the employer permitted one employee to work part-time in a different department under different working conditions.  It also did not discuss the employer’s obligation to discuss potential transfers to a different position.

Although the handbook does not state that employees must work full time, it states that production workers must be able to work 10–12 hours at a time—at least the length of a full shift. Shaferly testified that Fresh Products does not have part-time production workers because it is too difficult to manage with the amount of turnover at the company, and Hartman testified that it would be very difficult to have someone leave in the middle of a shift because it would require “figur[ing] out how to move someone else to take their spot” or “cover [their] machine.”

The Court also rejected her discrimination claim because she could not show that she was singled out for the RIF on account of her disability in light of her admission that she had never indicated a willingness or ability to work the 10-hour shifts.  Indeed, she “was the only employee who stated she could not work either shift, never selected a preference for one of the shifts when Shaferly followed up after the survey, and did not voluntarily quit.” 

The Court rejected the argument that she could not prove that she had a disability because she did not have any lifting restrictions imposed by her physician after she had been hired and had continued to work full-time until she was laid off because she had such medical restrictions imposed while working at a prior employer.  The Court also rejected the argument that she was unqualified for her position because she was unwilling to work 10-hour shifts because of the ambiguity in the employer’s request in seeking “preferences” instead of willingness or ability. 

The Court also found that she could not prove that she was singled out for the RIF on account of her age.  Only five employees were laid off and all of them were over the age of 40.  However, two of them were not comparable because one volunteered for the RIF and the other announced that she had to leave on February 1 (to go to jail).    The other two employees had admittedly poor production records.  When the Plaintiff pointed to the retention of a younger female, the Court pointed out that there was no evidence that that the comparator was less qualified than Plaintiff.  When the Plaintiff pointed to one young employee who was retained even though he had poor production and attendance compared to her, the Court pointed out that:

The probative value of this evidence in the age-discrimination context is undermined by the fact that, according to the final list of those considered for layoff (excluding those who quit or were terminated for cause before the layoff), half of the other employees who had lower production numbers or higher absenteeism than Thompson and were retained were members of the protected class (i.e., forty or older), and two were older than Thompson at the time of the RIF. This evidence does not tend to show that Thompson was singled out because of her age.

The Court also rejected her statistical “evidence” that she was singled out for the RIF on account of her race.

[W]ith the exception of [the employee] who informed Fresh Products that she would be incarcerated, the five employees terminated as part of the RIF were all black, Hispanic, or biracial; and 2) of the 18 people considered for layoff, 78% were black. These statistics suffer from the same shortcomings as those provided in support of Thompson’s ADEA claim: the sample sizes are too small to be reliable, and Thompson has failed to provide any analysis of the statistics’ significance. They also do not address a comparison to the relevant pool: roughly 70% of Fresh Products’ employees are black, Hispanic, or biracial.

When the Plaintiff identified a white employee who was retained with poorer production and attendance that her, the Court pointed out that:

[O]f the ten employees with lower productivity or higher absenteeism than Thompson who were considered for layoff but retained, only [that employee] and one other employee . . . are white.  Six are black, and one is biracial. In light of this context, Fresh Products’ retention of [that employee] does not tend to indicate that Thompson was laid off because of her race.

The dissenting judge would have found a factual dispute as to pretext when a non-disabled employee who had requested to work part-time to accommodate her class scheduled was retained even though that employee had also – unlike the Plaintiff – initially agreed to work a 10-hour shift before resigning.

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.

Sixth Circuit Affirms Jury’s ADA Verdict Rejecting Job Description, but Denies Front Pay and Insurance Damages

On Tuesday, the Sixth Circuit mostly affirmed a jury’s $588K award in an ADA case (not including attorneys’ fees), but agreed that the plaintiff should have been reinstated instead of awarded front pay under the circumstances and agreed that he had failed to carry his burden of showing lost medical insurance benefits. Gunther v. Bemis Company, Inc., No. 17-6144/6185 (6th Cir. 10-16-18).   Based on testimony from plaintiff and his co-workers, the jury was entitled to conclude that overhead lifting was not an essential job function even though it was in his job description.  The testimony showed that employees typically helped each other with such lifting.  The Court rejected the employer’s argument about mitigation of damages because the older and functionally illiterate plaintiff was not able to find replacement employment that did not require him to read.  

According to the Court’s opinion, the plaintiff employee suffered a shoulder injury while working and had been placed on temporary light duty.  The employer accommodated his temporary lifting restrictions and kept him on light duty for 18 months, when they met with him for an hour, placed on leave and then fired him four months later on the grounds that he could not safely perform the essential functions of his position as reflected in his carefully drafted job description.

Several employees testified that the plaintiff could perform the essential functions of his position with reasonable accommodations because they typically helped each other with lifting and had equipment to help lift as well.

Although an employer’s job description provides evidence of a job’s essential functions, 42 U.S.C. § 12111(8), it is “not dispositive,” Rorrer v. City of Stow, 743 F.3d 1025, 1039 (6th Cir. 2014).  Yes, [the employer] presented evidence that it carefully composed the press assistant job description.  But the jury also heard evidence that these requirements were not essential, and the company and other employees did not treat them as essential.  

[The employer] adds that [Plaintiff] cannot establish his qualifications for the job based on the option that other employees could help lift heavy equipment.  Employers, it is no doubt true, need not “accommodate individuals by shifting an essential job function onto others.”  Hoskins v. Oakland Cty. Sheriff’s Dep’t, 227 F.3d 719, 729 (6th Cir. 2000).  But the argument assumes that these tasks amount to essential functions that a single employee must be able to handle.  The jury heard evidence to the contrary—that press workers often ask for and receive help with certain tasks—permitting it to find that this was not an indispensable task for individual employees.  See Camp v. BI-LO, LLC, 662 F. App’x 357, 362–63 (6th Cir. 2016).  In the last analysis, [Plaintiff] presented sufficient evidence to create a triable issue of fact over the essential job requirements of a press operator, making the final resolution one for the jury, not for us.

The Court rejected the employer’s argument that $181K in back pay should be reduced because the plaintiff did not sufficiently mitigate his damages.  The Plaintiff quit school in the 8^th grade and claimed that he could not read the help ads.  He applied for a few jobs, but they did not offer many hours, or comparable pay.   In fact, he would not have qualified for his prior position, which required reading.  The jury could find that the plaintiff had been reasonably diligent in searching for new employment.

The Court agreed that the plaintiff should have been reinstated instead of being awarded $315K front pay.  The employer had indicated that it would agree to reinstatement if the jury ruled in his favor and the plaintiff requested reinstatement, but the trial court had refused to permit the jury to order reinstatement on the grounds that it was not safe for the plaintiff to return to work (a conclusion that the jury implicitly rejected in its verdict).  There was no evidence of hostility between the employer and plaintiff.  Although the employer had argued on the merits that the plaintiff could not safely perform his job, it was permitted to concede that if the jury found otherwise then he could be reinstated.  Although the front pay award was vacated, the matter was remanded to the trial court to re-determine the pay award because the plant had closed after the trial.  The plaintiff would be awarded pay from the time of trial until when the plant closed, as well as any other potential remedy given to laid off employees, such as severance pay or transfer to another plant.

The Court agreed that the Plaintiff did not show his entitlement to $92K in compensatory damages for lost insurance benefits.  At most he testified that he joined his wife’s insurance plan after his termination, but he did not offer any evidence of how much more expensive it was and whether he incurred any medical expenses that were previously covered by the defendant employer’s medical plan.

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 be changed or 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. 

Court Reinstates Lawsuit Against Individual Manager for Disability Discrimination

Yesterday, the Ohio Court of Appeals reversed a summary judgment dismissing an employee’s claim for disability discrimination against his former manager.  Price v. Carter Lumber Co., 2015-Ohio-1522.   This case only involved state law claims against the manager because the employer had apparently earlier prevailed on an ADA claim in federal court.  The Court found that there was a disputed issue of fact as to whether the plaintiff could perform the essential functions of his position with a reasonable accommodation.  While the plaintiff admittedly could not satisfy the employer’s lifting requirement, there were disputed issues as to whether that lifting requirement was an essential function of the job, whether the plaintiff could be transferred to a non-lifting position or whether the lifting requirement could be accommodated.  The employer did not utilize written job descriptions or performance evaluations to substantiate its arguments.  The employer denied telling the plaintiff that he was being laid off in January 2003 and would never be rehired because of his physical impairments, therefore, the plaintiff was relieved of requesting any specific accommodation.   Nonetheless, the Court affirmed dismissal of the emotional distress claim.

According to the Court’s lengthy opinion, the plaintiff was hired in 1998 as a yard worker at the lumber company.  When he began experiencing vision difficulties in Spring 2002, his driving duties were eliminated.  When he was then placed on lifting restrictions that Fall, he was transferred to a retail counter position part of the time and yard work (without heavy lifting) part of the time.  The employer claims that he had very poor customer and communication skills and never mastered the cash register, etc.  However, none of these performance issues were documented.  The employer regularly laid off employees during the slow winter months, but had previously recalled the plaintiff without requiring him to re-apply.  The plaintiff suffered kidney failure in December 2002 and was released to return to work in January 2003 with heavy lifting restrictions and a regular dialysis schedule.  He was then informed that he was being laid off because of economic conditions.  After some period of time had passed, the defendant manager finally admitted that he was not being recalled and the plaintiff testified that the manager specifically mentioned his dialysis schedule.

The manager contended that heavy lifting was an essential job function of a yard worker, although there was contrary testimony and no job description.   In addition, the manager failed to list heavy lifting as a job requirement when completing the EEOC’s questionnaire.  While workers may help each other out with heavy items, that was not always possible if they were busy with other customers. He also testified that sales employees sometimes also have to lift heavy items and need to  have an additional customer service skill set, which the plaintiff lacked.  He and another witness testified that the plaintiff needed to be repeatedly coached on his communication skills.  The plaintiff was laid off during the slow season and told him to reapply in the future.  The manager denied telling the plaintiff that he would be recalled to work when the economy improved in 2003.

The Court refused to hold the plaintiff to his SSI application where he claimed to be disabled because of his lifting restrictions because the SSI application does not consider reasonable accommodations that could be provided.  

“[n]either application for nor receipt of social security disability benefits is by itself conclusive evidence that an individual is completely incapable of working.” Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 429 (6th Cir.2014). “[O]ne may, in fact, be totally disabled under Social Security Disability Insurance (“SSDI”) application guidelines, but nevertheless be capable of performing the essential functions of one’s job. This is so because the focus of SSDI is distinct and does not consider, for example, the effect of a reasonable accommodation on the ability to do work.”

The plaintiff produced evidence of a number of accommodations – “such as rollers, dollies, sliding boards, flatbed carts, and handheld scanners that allow for pricing items without removing them from a cart or dolly”  that might have helped him perform his job.  Moreover, he showed that he had worked for several months with his duties split between yard work and inside sales while he had a similar lifting restriction. 

The Court also found a factual dispute to exists as to whether repeated heavy lifting was an essential function of a sales position.  Similarly, a factual dispute existed as to whether the plaintiff could perform either the yard worker or sales position with a reasonable accommodation.  There were no job descriptions and was conflicting testimony about the necessity of heavy lifting on those jobs.

In addition, the Court also found that the plaintiff was not required to request an accommodation because he had never been informed that his employment was being terminated on account of his physical limitations.  Instead, his termination was attributed to “seasonal cutbacks.”  When the plaintiff visited the store several times after his termination to see if he could return, he was not told about concerns with his physical limitations.  There was no discussion about any possible accommodations or limitations.  Finally, the plaintiff claimed that he was told that he was told the real issue was his dialysis schedule.

Nonetheless, the Court affirmed the dismissal of his emotional distress claim (i.e., intentional infliction of emotional distress).   The plaintiff felt distressed that his manager mislead him about his eligibility to return to work.

Although Mr. Price argues that Mr. Collins told him “numerous lies * * * about rehiring him in the Spring,” he failed to present evidence of any affirmative statements that Mr. Collins made in which Mr. Collins actually promised to rehire him. At best, Mr. Price set forth evidence that Mr. Collins implied he would have a future with the company. Even viewing that evidence in a light most favorable to Mr. Price, however, we cannot agree that it created a genuine issue of material fact for trial. Any false sense of hope that Mr. Collins might have given to Mr. Price and his wife at a time when they were mentally and financially vulnerable was morally reprehensible. We cannot say, however, that it was legally actionable.

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 be changed or 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

Sixth Circuit Vacates and Sets for En Banc Rehearing April Decision Making Physical Presence at Job Site Optional Under ADA

On Friday, a majority of the active Judges sitting on the Sixth Circuit Court of Appeals voted to vacate the divided decision by a panel of three judges from April which held that regular physical attendance at a job may not generally be considered to be an essential function of a job.  In that case, the EEOC convinced two judges that physical presence at a job may not be an essential job function and that working from home could be a reasonable accommodation.   EEOC v. Ford Motor Company, No. 12-2484 (6^th Cir. 4-22-14).   The case has now been set for an en banc rehearing before all of the judges of the Sixth Circuit, which could affirm, modify, or reverse the prior decision.  

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.