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 ADA Claim Based on Self-Diagnosis and Belated Request to Transfer to Avoid Supervisor Even Though Employee Later Discovered Brain Tumor

A unanimous Sixth Circuit yesterday affirmed an employer’s summary judgment on claims brought by an employee terminated for repeated poor attendance which she later blamed on persistent depression and a brain tumor that were not discovered or diagnosed until after her termination.   Hrdlicka v. General Motors LLC, No. 22-1328 (6^th Cir. 2/7/23), reissued (6th Cir. 3-23-23).  The Court found that her time off requests were not specific enough to prevail on disability discrimination, failure to accommodate or denial of FMLA claims and the employer was justified in acting based on the information that it had at the time and was apparently not required to inquire further.   Merely mentioning possible depression is insufficient to put an employer on notice of the ADA because depression is not always a disability and the employer reasonably attributed the issues to a personality conflict.  The Court also found that the employer was not required to engage in the interactive process when her unreasonable request to transfer was plausibly based on her dislike of her job, co-worker and supervisor rather than self-diagnosed depression.   It also found her request to transfer was too little too late when it came after her Final Written Warning, after she had been late two more times and two days before she was ultimately fired.

According to the Court’s opinion, the plaintiff had worked for GM for over 30 years when she was terminated for excessive absenteeism.  She had previously taken a few medical and other leaves of absence, showing that she knew how to request such leaves.   She was transferred to a new department in May 2018, but did not like a co-worker, her new supervisor or the work environment.   She requested by August to be returned to her former department, but her position had been eliminated, she was not qualified for any other positions and someone would have to backfill her current position.   Within a year, she began frequently missing, and being hours late for, work.  She gave a variety of reasons for her attendance, when she explained it at all, including child care issues, traffic, not feeling well, headache, bad cough, family situations, being tired, etc.  The only time she mentioned going to see a doctor was a fabrication.  Her attendance was criticized in her June 2019 performance evaluation and, finally, she was given a final written warning on August 14, 2019 after she had missed the summer intern presentations over which she had primary responsibility.  She was encouraged to utilize a medical leave of absence or seek a reasonable accommodation if necessary and provided with information to contact the EAP.  She was late the next two days and then on August 19 requested against to transfer back to her former department.  To support this request, she mentioned that she was unhappy with her work environment and supervisor and it was disputed whether she also mentioned that she had been suffering from [self-diagnosed] depression.  She was late again the next day and her employment was terminated.    

She immediately appealed her termination and claimed that she had informed HR before her termination that she suffered from depression caused by her supervisor.   In October, she was diagnosed with persistent depressive disorder.  A brain tumor was discovered in November and removed.  The employer was so informed.   Her appeal – which was limited to facts which existed at the time the August termination decision was made – was denied because there was no evidence submitted prior to her termination to substantiate her depression.  She then filed suit, alleging violations of the ADA, FMLA, state law, ERISA,  and Title VII.  The employer was granted summary judgment on all claims and the Court of Appeals affirmed. 

The Court agreed that she could not prevail on a disability discrimination or failure to accommodate claim based on an impairment which was not even diagnosed until after her termination, particularly when she never sought medical help until after she had been fired.  The Court was not influenced by her self-diagnoses:

Although an employee is not required to use the word “disabled” to put his or her employer on notice, the employer still must “know enough information about the employee’s condition to conclude that he is disabled. Relevant information could include, among other things, a diagnosis, a treatment plan, apparent severe symptoms, and physician-imposed work restrictions.”  . . . “The employer is not required to speculate as to the extent of the employee’s disability or the employee’s need or desire for an accommodation.”

[Plaintiff’s] text messages required [her supervisor] to speculate as to the existence of a disability. Many of the text messages reference only generalized ailments, such as [her] “head . . . really hurting,” having a “fever and other symptoms,” or simply being “sick.” Such symptoms are consistent with many short-term, nondisabling ailments, including a common cold. Other text messages make even more general references to “having a tough time” or dealing with “a mental thing.” Although these messages might have given [the supervisor] a general awareness of a health issue, that is not enough. . . . .. At bottom, these text messages were not sufficient to apprise [the supervisor] of a disability, especially when [the plaintiff] herself was unaware of any disability.

The closer question is whether [the plaintiff] put General Motors on notice of a disability when she met with [HR] shortly before she was terminated. In that meeting, [she] told them that she had felt depressed since transitioning to the Design Academy. In explaining her tardiness, however, [she] stated that “it was all related to [her] current work environment created by [her supervisor,] . . . includ[ing] a lack of leadership, direction, a lack of trust within the group, favoritism,” etc. . . .

In sum, [the plaintiff] made only a single, unsubstantiated statement that she was depressed without any corroborating medical evidence and without ever having sought medical help, and she consistently presented the issue as a workplace conflict, not a disability. Although a diagnosis is not necessary for an ADA claim to succeed,  . . .  [she] failed to present any of the “[r]elevant information” that this court has found pertinent to determining if an employer was placed on notice of a disability. . . .

The mention of depression alone is insufficient to constitute a “severe symptom” for two reasons. First, depression does not always render an employee “disabled.” . . . Second, [she] consistently and specifically attributed both her attendance issues and depression to a dislike of [her supervisor] and the work environment, leaving General Motors to “speculate” as to the existence of a disability as opposed to [her] concern about her interpersonal work conflict.

The Court also concluded that even if she suffered from a disability, the employer had a legitimate reason to terminate her for her repeated poor attendance and prior warnings: “The chronic tardiness and repeated absences, coupled with [her] immediate failure to abide by her Attendance Letter, were clearly legitimate, nondiscriminatory reasons to terminate her.”

The Court also rejected her failure to accommodate claim based on her request to transfer back to her former department days after her Final Written Warning and two days before she was terminated (after she had again been late to work without a valid medical excuse).   She had never linked this request with any purported disability.  Unlike the Sixth Circuit panel just days earlier, it found her request to transfer to avoid her supervisor was unreasonable:

Based on the facts in the record, however, this request was not “reasonable.” A transfer request is not reasonable if it was made to avoid working with certain people. . . . . A court is not in a position to “act as a super-bureau of Human Resources” and determine who should work with whom.

[She] herself conceded during her deposition that, when meeting with [HR], she “complained about [her co-worker] and [her supervisor’s] lack of leadership at this meeting” and that her tardiness was “related to [her] current work environment created by [her supervisor].” In other words, she attributed her attendance issues to the work environment and to her supervisor. She explicitly noted that her depression began once she was transferred to the Design Academy, and that this “precipitated her request for a transfer back to Sculpting.”

These facts compel the conclusion that her transfer request was specifically linked to her distaste for her current work environment. Basically, it was a desire to “force [the defendant] to transfer [her] so that [she] will not be required to work with certain people.” . . .

Even assuming that [she] adequately attributed her request to a disability and not just to a desire to escape the Design Academy, her request was untimely. “When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be ‘too little, too late.’” . . .

Similarly, [her] request came after a long history of attendance issues and a warning that her “job was in jeopardy” if she did not improve. After [she] arrived late for three successive days immediately following the issuance of her Attendance Letter, she was terminated. Her last-minute request for a transfer back to the Sculpting Department was not reasonable under the circumstances.

The Court also rejected her argument that her employer failed to engage in the interactive process:

General Motors did not violate a duty to engage in an interactive process because the duty is an independent violation of the ADA only “if the plaintiff establishes a prima facie showing that he proposed a reasonable accommodation.” Id. at 1041. As discussed above, [she] did not request a reasonable accommodation and, therefore, General Motors did not fail to engage in an interactive process.

The Court also rejected her FMLA claim on the ground that she failed to provide sufficient notice of the need for such leave.  Her “general references to her head “really hurting,” feeling “sick,” or having a “fever and other symptoms” are simply generalized descriptions of ailments that do not rise to the level of “serious health conditions” within the meaning of the FMLA.”

The better argument is when [she] more explicitly referenced having “depression” in her meeting with [HR] shortly before she was terminated. But this conversation was not accompanied by any request for FMLA leave despite the fact that [she] was familiar with the process because she herself had already taken FMLA and maternity leave when she had had her two children. Moreover, the possibility of taking FMLA leave was directly stated in her Attendance Letter, which was both read and emailed to [her].

                 . . .

             . . . In sum, [she] made only a single statement that she was depressed, which was not made in the context of requesting time off, but as a justification for her desire to transfer back to the sculpting Department (and to continue working, not stop working as FMLA leave would entail).

The remaining claims were denied based on the employer’s legitimate and non-discriminatory reason to terminate her on account of her poor attendance, after several warnings, based on the information that the employer had at the time of the 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.

Sixth Circuit Blames Employee for Failure of Interactive Process When Employer Could Reasonably Infer Request to Change Supervision

Yesterday, the Sixth Circuit issued an interesting decision affirming the employer’s summary judgment on an ADA claim involving PTSD.  Tomlinson v. Krauss -Maffei Corp., No. 21-6245 (6^th Cir. 2/6/23).  The Court unanimously agreed that the plaintiff had not engaged in good faith in the interactive process by resigning after repeatedly failing to respond to emails about his allegedly discriminatory performance evaluation and, thus, could not establish a failure to accommodate, constructive discharge or retaliation.  They disagreed, however, with whether the plaintiff had requested, and whether it was reasonable to request, a change in supervision, with the majority finding that such a request was made and could be found to be reasonable.    The majority opinion goes so far as to find that the employer should have realized from the employee’s unhappiness with his performance evaluation that he was requesting a change in supervision even if he never used those words.  Of course, the extended discussion becomes dicta – and not legal binding -- when it was unnecessary to the Court’s judgment affirming dismissal of all of the employee’s claims on the grounds that “the evidence shows that [the employer] was persistent in trying to reach a resolution with [the employee] but he terminated the interactive process through his resignation.” 

According to the majority opinion,  the plaintiff informed Human Resources almost a year after he was hired that he had PTSD and wanted to never be scheduled again with a particular co-worker who he alleged was harassing him.  HR and his supervisor (with whom he only spoke approximately twice a year) granted his request.   However, the following year, he received a negative performance evaluation from his supervisor based on customer and co-worker complaints.   When the supervisor refused to change the evaluation following a conversation, the plaintiff reported to HR that he found the supervisor’s tone to be threatening and aggressive.  No threats were made to the plaintiff’s employment.   The plaintiff then complained to the General  Counsel, but did not respond to two of her emails. The plaintiff then took FMLA and STD and complained to the employer’s president about the evaluation.  It took weeks to for him to respond to HR’s inquiries.  He explained that he was having difficulty communicating because of his PTSD. 

The Company’s General Counsel investigated his concerns, but refused to modify his performance evaluation.  However, he was encouraged to return to work and asked how they could be more sensitive to his PTSD.  It also kept him apprised during the investigation, which considered transferring him, but no similar positions were available.   The company also refused on August 20 to have him report to the coordinator because she was not a manager/supervisor.   Nonetheless, although it allegedly informed the plaintiff that it was considering changing the performance evaluation process, it did not tell him the changes that it ultimately decided to make (after he had resigned on August 24) so that the coordinators would draft the performance evaluations for review by the supervisor.    The investigation concluded that the supervisor had been spread too thin and made lots of mistakes to seven of the performance evaluations that he completed that year.   The employee brought suit almost a year later, which was dismissed on summary judgment on the grounds that the request for a new supervisor was unreasonable and he had failed to engage in good faith in the interactive process.

In evaluating an employee’s burden of proving the denial of a reasonable accommodation, “[e]ncompassed in the reasonableness prong of the above framework is a requirement that both parties communicate in good faith to reach an agreement on a reasonable accommodation.”  In other words, one cannot show that a request is reasonable without also showing mandatory participation in the interactive process.  The majority opinion observed that “[w]hile it may be true that such a request [for a new supervisor] is generally unreasonable, our precedent informs that presumptions regarding the reasonableness of an accommodation “eviscerate[] the individualized attention that the Supreme Court has deemed ‘essential’ in each disability claim.”

A fresh look at the record evinces that a reasonable juror could conclude that [the employee’s] request was reasonable. After all, the [General Counsel] testified that the reason [the company] denied the request was because it did not “seem” like an option that would fit within the company’s structure. Critically, however, [the HR Director] testified that, during [the General Counsel’s] investigation of [the employee’s] complaints regarding [the manager’s] delivery of his performance review, [the company’s] leadership actually discussed revamping the evaluation process in a way that would have satisfied [his] request. Indeed, [the company] planned to explore the idea of having the service coordinators (Bouza’s position) conduct the performance reviews for FSEs ([his] position), instead of service managers (Wiley’s position). All things considered, a reasonable jury could discern that that [he] requested even before [the General Counsel] denied his request, but [the company] further made and implemented that change the following year.

The concurring judge, however, disagreed.  Among other things, the plaintiff had apparently admitted that he could continue to work with his supervisor because they only spoke about twice each year.   She denied that the record reflected him ever making a request to report instead to the coordinator and the investigation report never mentions such a request. “[A] change in supervision is not generally considered a reasonable request but must be individually considered in each case.”  Nonetheless, because the coordinator is not a supervisor or manager and was not being considered for a promotion, “[a] company does not have to change its reporting structure to accommodate an employee’s disability.”

Not letting the point go, the majority opinion then made clear that the employee need not specifically request a change in supervision if it should have been clear from the circumstances that this would have resolved the issue:

To begin, our precedent does not require employees to recite any particular buzz words for us to find that an accommodation was requested. . . . . The record supports that [the employee] made clear that he wished to be accommodated based on his disability even before he made the specific request for a change in supervision. Starting with his first call to [HR] after receiving his written performance review, until the moment that he resigned, [he] made clear that he had an issue with [his supervisor] and wanted [the company] to take some sort of action. For instance, in his first communication to the company’s general counsel, Beene-Skuban, [he] indicated that [his supervisor] made threatening and harassing comments which [he] felt were an attack on his PTSD. He later followed up with the president of the company stating that the only request he had made thus far was to not “deal with bullying or harassment.” Though he did not state specifically that he wanted to report to [the coordinator] instead of [his supervisor], [the company] should have reasonably inferred that he had an issue working with [the supervisor] such that it was appropriate to initiate an interactive process to reach a resolution, which is exactly what it did. [The Company] repeatedly attempted to initiate a discussion with [the employee] to hear more about his concerns and [the General Counsel] explicitly stated in one of the emails that she wanted to be “sensitive to” [his] PTSD.

In any event, a unanimous court agreed that the plaintiff’s failure to participate meaningfully in the discussions surrounding his allegations about the discriminatory performance evaluation and then resigning despite the company’s efforts to work with him to reach a satisfactory solution prevented him from prevailing on any discrimination or constructive discharge claim.

The ADA does not oblige “employers to make on-the-spot accommodations of the employee’s choosing.” . . . Rather, the regulations acknowledge that determining the appropriate accommodation may require the employer “to initiate an informal, interactive process.” 29 C.F.R. § 1630.2. This process functions to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Id. And “[e]ven though the interactive process is not described in the statute’s text, [it] is mandatory, and both parties have a duty to participate in good faith.” . . . . . Causing unnecessary delays, obstructing the process, and/or failing to adequately communicate or provide information during the process may evidence a party’s bad faith. . . . Where a party fails to participate in good faith, “courts should attempt to isolate the cause of the breakdown and then assign responsibility.”

In this case, the Court rejected the plaintiff’s assertion that his PTSD prevented him from meaningful participation in the interactive process through either email or telephone calls as repeatedly offered by the employer over several months:

But after [he] took medical leave, he became largely unresponsive, demanding that [the company] give him advanced notice before contacting him, yet neglecting to provide the company his availability. In this vein, [his] argument that he could not participate in the process on account of his PTSD is unpersuasive.

Despite his repeated failure to communicate, the employer explored several possibilities internally, showing that it was attempting in good faith to resolve his concerns.   Thus, the failure of the interactive process was his fault, not the employer’s:

a reasonable juror cannot conclude that he engaged in the mandatory interactive process in good faith. [He] argues that [the company] “completely sidestep[ped]” the process by failing to explore alternatives to his request. The record tells a different story. [He] terminated the interactive process by resigning when [the company] rejected his specific accommodation, even after the company made clear from the start of [his discrimination] complaint that it wanted to work with him to identify a reasonable accommodation. And after [the company] rejected [his] request [for a new supervisor], [it] advised him in writing that it intended to have a “face-to-face meeting” upon his return to further discuss next steps.

                . . . .

            it appears that [the employee] argues that he requested a pre-return phone call as an accommodation to support his failure-to-accommodate claim. This claim fails as well. [The Company] attempted several times throughout the course of [his] medical leave to schedule a call and ultimately offered to set up an in-person meeting upon his return from medical leave. Assuming [he] made this request, he is not entitled to cherry-pick the accommodation of his liking among reasonable alternatives.

The Court also rejected his retaliation claim on the basis that he could not identify an adverse employment action:  his discrimination and failure to accommodate claims had already been rejected.   The Court rejected his argument that he was constructively discharged, which could be an adverse employment action. 

“the employer must have created an objectively intolerable work environment to deliberately force a disabled employee to resign.” Id. Employees who leave “in apprehension that conditions may deteriorate later” will not prevail. . . . That is, if other forms of relief are available to employees, they are expected to try to resolve the issue instead of resigning.

For instance, in Goening , we held that the plaintiff could not use her employer’s criticism of her decision to take protected leave to establish that her work conditions were intolerable. . . . .  We reasoned in part that “this circuit has repeatedly held that an employer’s criticism of an employee does not amount to constructive discharge—especially when the employer’s criticism is limited to a few isolated incidents.” Id. We reached the same conclusion in Savage v. Gee , where the record showed that the faculty members of a university were critical of the plaintiff librarian’s book suggestions, were uncomfortable with his research skills and publicly challenged his professionalism. . . . We reached this conclusion again in Arndt, where we acknowledged that the plaintiff may have felt that the employer badgered and disrespected him about his PTSD, but the employer considered both of his requests for accommodation and placed him on medical leave while the second request was being considered.

In this case, the Court refused “to conclude that an employee can establish constructive discharge by proving that his manager made careless mistakes or included inaccurate information on one of his performance reviews.”  That his supervisor made some mistakes on his and seven other employee performance evaluations is not sufficient to justify a resignation.

 . . . A plaintiff’s testimony that an employer used a threatening tone, without more, is not enough under the circumstances of this case. See Brister v. Mich. Bell Tel. Co., 705 F. App’x 356, 360 (6th Cir. 2017) (evidence of “humiliation and criticism,” and evidence that the plaintiff was called “stupid” and told that she should “seek psychological help,” was not enough absent evidence that the harassment “manifested in a demotion, reduction in salary, or reduction in job responsibilities”); Goening , 884 F.3d at 631 (holding the plaintiff could not use her employer’s criticism of her decision to take protected leave to establish that her work conditions were intolerable). Even assuming [the supervisor] did use a threatening tone during the review, [he] testified that he only interacted with [the employee] about twice a year and [the employee] corroborated this testimony in his briefing. See id. (“[T]his circuit has repeatedly held that an employer’s criticism of an employee does not amount to constructive discharge—especially when the employer’s criticism is limited to a few isolated incidents.”). Further, [the plaintiff employee] was on medical leave at the time he resigned, lessening his chance of encountering [his supervisor] at the time of his resignation even more. And the record supports that [the company] offered to set up a meeting with [him] upon his return to ensure that [he] felt heard, evidencing [its[ efforts to make the working conditions tolerable for everyone.

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.

Franklin County Court of Appeals Reverses Employer's Summary Judgment on "Regarded As" Disability Discrimination Claim.

Last month, the Franklin County Court of Appeals reversed in major part a disability discrimination claim brought by a terminated day care worker with a genetic heart condition which made her susceptible to infections.  Anderson v. Bright Horizons Children's Ctrs., L.L.C., 2022-Ohio-1031.  The Court agreed that the plaintiff could not show that she was “disabled” under Ohio law because O.R.C. §4112.02 – unlike federal law -- does not include “operation of a major bodily function” as a disability.   The Court also rejected her argument that she had requested a reasonable accommodation with vague statements.   However, the Court found sufficient evidence for trial about whether the plaintiff was “regarded as” disabled and had suffered an adverse employment action on account of her heart condition when she had within the prior week disclosed that she suffered from a heart defect which was causing her attendance issues and there was a factual dispute as to whether she was even required to call off after being taken off the work schedule.    The Court also revived a claim against the plaintiff's former supervisor for aiding and abetting the employer's alleged discrimination.  

According to the Court’s opinion, the plaintiff suffered from a genetic heart valve defect which rendered her more susceptible to bacterial infections.    She was hired in March 2017 to work in the infant room of her employer’s daycare center.  Over the next 3.5 months, she missed 8 non-consecutive days due to various infections.  When she called off for another infection on July 10, she disclosed her genetic heart defect as the underlying cause.  When she returned to work on July 12, she was counselled for excessive absenteeism, informed that she was not providing the necessary consistency of care for the infants and it was suggested that she transfer to the substitute pool or resign.  She was also reprimanded for inappropriate use of her cell phone when she was supposed to be teaching earlier that day.   She suffered an anxiety attack when she next reported to work on July 14, called off and went to the ER.   Her mother called in to explain her genetic condition, her treatment in the ER for anxiety, migraine and blood pressure, etc. and admonished her supervisor for permitting feverish infants to be admitted to the day care when they posed a risk to her daughter.   While the mother requested that the employer not hold the heart defect against her, neither the mother nor daughter ever informed the employer that she had been released to return to work after leaving the ER.

The plaintiff was not put on the following week’s schedule, purportedly because she had not yet reported that she had been released to return to work.  The plaintiff claims that she assumed that she had been fired and did not report to work, but instead, attempted repeatedly to call her supervisor and manager and assumed that they were avoiding her.  The HR Department attempted repeatedly to call the plaintiff and, because her voice mailbox was full, emailed her with times they were available to talk with her.  The plaintiff did not call or email them as requested.  The employer’s policy provided that an employee would be considered to have resigned if they failed to report or call off from work for two consecutive “scheduled days.”   The plaintiff was informed on July 20 that she was deemed to have resigned because she had not reported to or off from work on July 14 (when she had) or on July 17 or 18 (when she was not on the schedule).  

The plaintiff sued the following month for disability discrimination.  The trial court granted the employer summary judgment, but the appellate court reversed.

The Court of Appeals first noted that while Ohio courts rely on federal ADA and ADAA decision for persuasive authority and guidance, federal court decisions are not controlling because the ADAA and its regulations differ substantially from federal law.  In particular, unlike federal law, Ohio law does not provide “that the operation of a major bodily function is a major life activity.”  Courts will not amend a statute where the General Assembly has not done so.   Accordingly, the plaintiff “has not demonstrated that her congenital heart defect substantially limits a major life activity” and cannot show that she is “disabled” under Ohio law under the first prong of the definition. 

Yet, the third prong of the definition encompasses “regarded as disabled” claims.  “Under the plain language of R.C. 4112.01(A)(13), a plaintiff may be disabled if the employer regarded the plaintiff as having a mental or physical impairment, without regard to whether the employer regarded the plaintiff as substantially limited in his or her major life activities.”  There was no dispute that the plaintiff suffered from a physical impairment due to her heart defect.   There was also no dispute that the plaintiff and her mother had disclosed the heart defect in the week before she was terminated.    The court rejected the employer’s argument that the disclosure of the defect was insufficient because they had no medical confirmation that it was actually causing her absences:

However, a question of fact arose regarding whether defendants believed [she] had a physical impairment once [she] informed [her supervisor] about her congenital heart defect.   [She] did not have to substantiate her medical condition with documentation to create a question of fact sufficient to survive summary judgment.

The court also rejected the employer’s arguments that the plaintiff’s prior medical releases to return to work without restrictions (for her prior sinus infections) precluded her from providing a disability because she was not claiming that her sinus infection was her disability.  Rather, the plaintiff had alleged

that defendants regarded her as disabled due to her congenital heart defect. Defendants did not receive any medical note returning [her] to work without restriction after an absence to treat her congenital heart defect. Consequently, defendants in this case had no reason to believe that the ongoing condition [she] suffered from—a congenital heart defect—had resolved itself because she had produced a note returning her to work without restriction after an acute infection.

The Court also rejected that the employer’s argument that the plaintiff had necessarily voluntarily resigned by not reporting to work after she had been taken off the schedule.  The employer argued that Mondays and Tuesdays were her regular work days and she was required to show up or call off.  The Court concluded that a reasonable jury could disagree about whether the plaintiff had voluntarily resigned by not properly calling off work on her normal work days (because she assumed that her supervisor was not answering the phone to deliberately avoid her) or responding to the HR Department when she had not been put on the schedule.   If she had voluntarily resigned under the policy, then she had not suffered an adverse employment action.  

The Court rejected the plaintiff’s argument that she had provided direct evidence of discrimination from the employer’s testimony that her prior sporadic absences played a role in the decision to terminate her employment.   Rather, that testimony required an inference from her disability-related absences were really about the disability and not the absences.    Nonetheless, that testimony was relevant to proving indirectly or circumstantially that she had been terminated on account of her disability.

A reasonable factfinder could determine that [the supervisor] deduced from this information that [the plaintiff’s] congenital heart defect was the underlying cause of her numerous acute infections and concomitant absences from work. Thus, a reasonable factfinder could infer that when [the supervisor] conceded that [her] absences played a role in her termination, she was really conceding that [her] perceived disability played a role in her termination.

Not surprisingly, the temporal proximity between the date when the plaintiff disclosed her heart defect and the date of her termination also constituted evidence that her disability motivated her termination:

[D]efendants terminated [her] employment on July 20, 2017, only ten days after [she] first disclosed her congenital heart defect to [her supervisor]. The temporal proximity between the disclosure of [her] alleged disability and the adverse employment action is circumstantial evidence of intentional discrimination.

Plaintiff was also replaced with an employee who did not have a disability.

The Court found irrelevant that the plaintiff was reprimanded for her inappropriate usage of her cell phone because that reprimand played no role in the decision to terminate her employment.

The Court noted that the parties did not seem to address or dispute whether the plaintiff was qualified for her position.  It also refused to consider the issue of pretext because the trial court had not addressed it below.   Nonetheless, it found the trial court had erred in granting summary judgment based on the circumstantial evidence the plaintiff had presented that she had been discriminated against on account of being regarded as disabled.

The Court rejected the plaintiff’s claim that the employer failed to provide her with a reasonable accommodation.  “When an employee does not propose a reasonable accommodation, his or her failure-to-accommodate claim must fail.”   The plaintiff claimed that she had requested on July 10 that the employer not count her disability-related absences against her, but the court found she had not sustained her burden of proving that she had requested a reasonable accommodation.  It similarly rejected the affidavit of the plaintiff’s mother she had requested on July 12 that the employer not hold the heart defect against her daughter because the statement was “not sufficiently direct and specific enough to qualify as a request for a reasonable accommodation.”

It is too vague for any employer to recognize it as a proposal for specific, special action needed to accommodate a disability in the workplace. Melody Anderson's request is more like general plea for "understanding" than a proposal for a concrete accommodation.

The  Court refused to recognize a separate claim for the employer’s alleged failure to engage in the interactive process because such a duty only arises under federal law when the plaintiff requests a reasonable accommodation – which did not occur here.  The Court noted that O.R.C. §4112.02 never mentions the interactive process obligation.  

The Court also reinstated the plaintiff’s claim that her supervisor had aided and abetted the employer in discriminating against her.   Because the “regarded as” disabled claim had been revived, this claim would be revived as well.

The Court then affirmed a number of discovery rulings and sanctions involving emails and recorded telephone conversations.

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. 

Vague Requests and Failure to Comply with Accommodation Procedures Doomed ADA Failure-To-Accommodate Claim

Last month, the Sixth Circuit affirmed an employer’s summary judgment on an ADA failure-to-accommodate claim when the employee failed to obtain medical information clarifying his sought accommodation as requested by the defendant employer. Stover v. Amazon.com LLC, No. 21-5421 (6th Cir. 1/10/22).   His initial inquiries were deemed too vague to constitute a request for a reasonable accommodation and his failure to support his own clarification with any medical documentation from his physician constituted an abandonment of the reasonable accommodation process.   Therefore, the employer was not required to grant his requests.  

According to the Court’s opinion, the plaintiff call center employee requested a reduced work schedule to accommodate his gastrointestinal impairment and need for unscheduled restroom breaks.   After he failed to submit any medical documentation to support his first request, his request was administratively closed.   He later submitted a second request, supported with note from his physician indicating that he needed to have a restroom “readily available.”  When asked for clarification, the employee indicated that his work hours should be reduced from 40 to 32 and approval to use the restroom whenever he has an episode, but never provided any medical documentation to support this clarification.  Accordingly, his request was closed without approval.  Dissatisfied with the employer’s process, the plaintiff never sought another accommodation.

Meanwhile, his job performance was found to be deficient, which he usually blamed on his hardware, etc.   He was observed, among other things, being rude to customers and avoiding new calls near the end of his shifts.   Although his equipment was replaced, he continued to have performance issues. He was then warned about his excessive breaks, but he refused to pursue the reasonable accommodation process again even when encouraged to do so.   When his performance did not improve, he was terminated.

The Court found that the plaintiff could not show that he had requested a reasonable accommodation when he had abandoned the reasonable accommodation process.   His initial requests and physician notes – for “more breaks” and a “readily accessible” restroom – lacked

specificity, so much so that they were tantamount to failing to make any accommodation request whatsoever. An employee, after all, must “reasonably inform” an employer about the nature of the requested accommodation, thereby putting the employer on notice of whether and what type of accommodation might be appropriate.

When the plaintiff later requested a reduced work schedule and ability to use the restroom whenever he had an episode, he failed to provide the supporting medical documentation reasonably requested by the employer.

[He] did not follow up, however, with supporting medical documentation to give Amazon fair notice of his needs. Instead, he repeatedly disclaimed any interest in seeking an accommodation. [His] failures in this regard rendered his bathroom-accommodations claims subject to summary judgment.

In litigation, he claimed that he had made another request  -- for leave to seek medical treatment every 8 weeks.  However, there was no evidence that he had ever requested this accommodation.  Moreover, there was no evidence of any medical information submitted by any physician to support this request.

To avoid the weakness of his evidence, the plaintiff argued that he was not required to participate in the employer’s process when he deemed them to be futile:

employees poured cold water on his initial accommodation inquiries, justifying his decision to deem the process futile. But Stover cannot dictate the terms of his accommodation or refuse reasonable requests by those designated to evaluate his accommodation inquiries.

The Court also rejected his retaliation claim because he could not show that the reason for his termination – his manipulation of the computer system to avoid taking customer calls near the end of his shift.”  This is a basic reason to terminate employment.   The employer was able to articulate its belief in his misconduct.  “Under the settled “honest belief rule,” so long as Amazon made a “reasonably informed and considered decision” based on “particularized facts,” no reasonable juror could infer that its reason for firing Stover was pretextual.”  He essentially admitted the infractions, which were similar enough to his other misconduct – being rude to customers – to mirror his pattern of rude behavior.  His “bathroom needs, in other words, were the least of Amazon’s problems with him.”  Moreover, he had given a variety of reasons for taking excessive breaks – a malfunctioning computer and food poisoning, etc. – that undermined his claim that his disability motivated the termination decision.

True, [the plaintiff] did, on one occasion, tell [his manager] that his Crohn’s disease was the cause of his excessive breaks. But that was one cause among many, including food poisoning and a mischievous computer. There is no evidence to suggest that [his] Crohn’s disease motivated [her] to initiate [his] separation any more than any other reason [he] provided for his misconduct. More to the point, far from showcasing a discriminatory intent, [his manager], in her discussion with [him] about his excessive breaks, encouraged [him] to seek an ADA accommodation, hardly the makings of a discrimination claim. [The plaintiff], for the most part, viewed his dispute with [his manager] as personal in nature, not one motivated by some sort of hidden discriminatory intent. In short, no reasonable jury could conclude that Amazon’s proffered reasons for cutting ties with [him] were pretextual.

 

 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: Employers May Require Medical Evidence that Requested Accommodation is Medically Necessary

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 (6^th 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.