Sixth Circuit Dismisses ADA Claim Because Employer Is Not Required to Guess About Extent of Disability or Desire for Accommodation

Yesterday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an ADA failure-to-accommodate claim.   Aldini v. Kroger Company of Michigan, No. 15-1044 (10-7-15).  In that case, the plaintiff retracted his request for a reasonable accommodation after his manager indicated that he could not grant the request, but would send it to the human resources department.  He then brought suit two years later for a failure to accommodate and for harassment (which apparently pre-dated his foot injury and accommodation request).  The Court held that the plaintiff failed to meet his burden of proving that he had requested an accommodation after he voluntarily retracted it and the employer was not required to infer a reasonable accommodation need under the circumstances.  Further, the plaintiff could not show that it would have been futile to make another reasonable accommodation request.

According to the Court’s opinion, the plaintiff returned to work following a medical leave for foot surgery.  Although he initially returned without any work restrictions, a week later he produced a physician note indicating that he required some lifting restrictions and rest breaks.  His manager responded that he could not provide these accommodations, but would send his request to the human resources department.  Taking this as a rejection (and not aware of the possibility of being temporarily transferred, etc.), the plaintiff returned to his physician that same day and obtained a release to return to work without any medical restrictions.   He continued to work without any medical restrictions for the next two years.  At that point, he filed a charge of discrimination with the EEOC alleging that he had been denied a reasonable accommodation, but did not indicate what accommodations had been denied.  He then filed another charge alleging that he had been subjected to harassment. 

The Court affirmed dismissal of the harassment claims because the alleged harassment began before his foot surgery.  There was also no evidence that the allegedly harassing manager knew anything about his accommodation request, any issue of his alleged disability or his EEOC Charge.  Finally, the plaintiff conceded that the manager was hard on everyone, not just him.

The Court also affirmed dismissal of the disability discrimination claim based on an alleged failure to accommodate.  “The employee bears the burden of requesting a reasonable accommodation.”  While an accommodation request can be inferred in certain situations and can be excused when the request would be futile, the employee bears the burden of proving that a request was made so that “[t]he 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.”  Accordingly, “the general rule is that when the employee does not propose an accommodation, his ‘failure to accommodate’ claim must fail.” 

 In this case, the Court refused to infer that the employer was on notice of the plaintiff’s need for a reasonable accommodation because the plaintiff retracted his only request within 24 hours and worked for two years afterwards without any indication that he required any accommodation in order to perform his job.  His “decision to withdraw his request and continue working without complaint means his claim must fail and summary judgment is appropriate.”

The Court also refused to excuse the plaintiff from repeating his prior request based on futility.  While his supervisor indicated that he would not grant the accommodation, he also stated that he would forward the plaintiff’s request to the human resources department.  While the plaintiff may have found this ambiguous statement to indicate a denial of his request, the denial was not definitive and did not indicate that all future requests would similarly be denied.  Therefore, his case was distinguishable from cases were requests have been found to be futile where the employer unequivocally and definitively rejected the accommodation request.

Finally, the Court found that the EEOC Charge and subsequent letter from the plaintiff’s attorney did not constitute reasonable accommodation requests because neither communication indicated what accommodations he sought or what work restrictions he required.

 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.