The Court
rejected the argument that the plaintiff’s transfer to cleaning patient rooms
was materially adverse because it did not involve a change in his shift, title,
pay or benefits. There also was not a
material change in his workload or prestige since his co-workers with the same
job title and job description had no difficulty performing these duties.
. . . his personal difficulty
with the job does not in and of itself raise a genuine dispute that the
position is objectively intolerable. . . .We have held only that the physical
demands of a new position rose to the level of objective intolerability where
the record evinced a consensus among employees that the job was more taxing, . . . or where the job exposed the
plaintiff to patently dangerous conditions, . . .
For the same reason, the Court rejected the plaintiff’s
constructive discharge argument that he was set up to fail because the transfer
was not objectively adverse and the working conditions were not intolerable to
a reasonable person.
However, the Court was receptive to the plaintiff’s
arguments that he was denied an effective accommodation of his disability. Surprisingly, despite the plaintiff’s many
years of favorable performance evaluations (demonstrating his competence), the
employer argued that he was not qualified for his custodial position (even with
a reasonable accommodation). It asserted
that his job description provided that incumbents must be able to rotate to
different areas of the hospital.
However, the Court found that a jury could question that because some
employees rarely, if ever, rotated. It
also rejected the employer’s argument that the plaintiff could not satisfy the
interpersonal requirements of the positions (because of recent conflicts with
surgical staff) since the plaintiff had received an excellent performance
evaluation after those conflicts and
the employer admitted that such conflicts typically lead to coaching instead of
transfers. The Court seemed particularly
concerned with the employer’s inability to explain why the plaintiff had been
transferred in the first place, citing only a vague concern with “operational
needs.” The Court also noted that the
employer has a legal obligation to transfer employees into vacant positions as
an accommodation and the employer sought other employees to transfer into the
plaintiff’s former operating room position after his involuntary transfer.
The Court also rejected the employer’s argument (which the
trial court had adopted) that the plaintiff’s accommodation request was not
necessitated by his disability, but was a mere personal preference. The Court noted that the plaintiff’s request
was supported by two different physicians and his wife, who explained that his
cognitive impairments affected his ability to learn new things, adapt to new
situations or comprehend new and complicated rules. In contrast, the employer relied only upon
the opinions of the plaintiff’s former supervisor.
The Court
also rejected the argument that the plaintiff failed to apprise the employer
that his request was necessitated by his disability: “our
case law considers letters from physicians sufficient to notify an employer of
the need to accommodate a disability.”
Moreover, there was evidence that the supervisor knew about the
plaintiff’s prior stroke, brain surgeries and other symptoms.
Finally, the Court found there was sufficient evidence to
show that the employer failed to engage in a good faith interactive process. Although an employer is not required to grant
the accommodation requested or preferred by the employee, a counter-proposal
can be evidence of good faith. Although
the employer in this case offered to decrease a small amount of the plaintiff’s
new workload and provided coaching from a co-workers, this was not a good faith
counterproposal because the problem was his ability to adjust to new
situations, not the workload:
it is not unreasonable to think that Mobley’s particular
impairments might have necessitated something more than a few days with a
coworker unversed in helping the disabled. Similarly, the developmental plan
reduced some of Mobley’s workload in the patient trash position and tried to
clarify his responsibilities, but even under the revised plan Mobley was unable
to complete more than a quarter of his assigned work. Though we by no means
conclude that MVH is certainly to blame for the failure to reach a
mutually acceptable accommodation, a reasonable jury could conclude that
MVH did not in good faith consider Mobley’s proposed transfer and that further
dialogue would have been necessary to
reach an agreeable outcome.
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.
