Within the past week, the Sixth Circuit has decided two ADA
cases. In both cases, the employer argued
that it terminated the plaintiff because the employee was not meeting its
legitimate expectations. In both cases, the plaintiffs raised claims that the
employer failed to accommodate their disabilities. In one case, the Court found that the employer’s
failure to approve the employee’s requested accommodation or explore any
alternatives constituted direct evidence of discrimination and, therefore, her
termination for violating a standard rule in violation of its legitimate
expectations was also discriminatory without regard to how it treated other
employees for violating the same rule.
In contrast, in the other case, the Court refused to consider the
plaintiff’s accommodation claim because he was not meeting the employer’s
legitimate performance expectations and the employer had spent a month
discussing the requested accommodations with the employee. In one case, the plaintiff prevailed,
receiving over $275K in back pay and compensatory damages and over $445K in
fees for her successful attorneys, but the other plaintiff’s claim was
dismissed without an expensive trial.
More problematic for employers, however, is that the Court held that
when an employer denies a reasonable accommodation, the employer’s termination
of the employee for not complying with the neutral policy that should have been
modified as an accommodation constitutes direct evidence of discrimination and
the employer may not defend itself by arguing it had a legitimate reason or
treated other employees the same. “Failure to consider the possibility of
reasonable accommodation for known disabilities, if it leads to discharge for
performance inadequacies resulting from the disabilities, amounts to a
discharge solely because of the disabilities.”
This morning, the Court affirmed the dismissal of the ADA
claims brought by an employee who had been terminated for never mastering his
job duties eight weeks after he had been hired. Most v.
BWXT Nuclear Operations Group, Inc. , No.
18-3059 (6th Cir. 8-15-18). The plaintiff suffered from social anxiety
disorder (which caused panic attacks, etc.) and had been treated for several years. Based on his job experience, he applied for a
job and was trained at the same time as another new hire, who like most new
hires, mastered their job duties within a couple of weeks. The plaintiff, however, had not mastered them
after 8 weeks. He was the only
programmer hired in the prior 8 years who had not mastered his duties within a
month of being hired.
He took a few days off to consider whether to proceed with
this job. When he returned, he disclosed
his disability and requested accommodation of certain job requirements which
had not been identified in the online job listing when he applied. At least one of those accommodations was
granted, but the Court’s opinion is unclear about others even though there had
been discussions over several weeks. The
Court also noted that the HR Manager was exceedingly rude to the plaintiff
during the first month after the plaintiff sought accommodation of his
disorder. After two months of not
improving sufficiently to perform billable work, the employer requested
documentation to prove his claimed social anxiety disorder and gave the
plaintiff six days in which to produce such evidence (i.e., before May
31). On May 31, the plaintiff reported
that the clinic had closed, but he produced two years of prescriptions and made
an appointment with his primary care physician to receive an updated
diagnosis. He was fired six days later
for not meeting job expectations nine weeks after being hired, requesting and
requiring an unreasonable accommodation (which his supervisor had already told
him was granted) and failing to provide medical documentation to prove the
existence or extent of his disability.
The Court affirmed summary judgment on the grounds that the
plaintiff was not qualified for his position because he did not meet the
legitimate performance expectations of his employer:
[He] puts forth no evidence of positive performance that
conflicts with [the employer’s] negative evaluations of his performance. He also does not submit evidence that he was
qualified to do the job, other than his on-paper qualifications. Rather, [his] deficient performance supports
that he was unqualified to do the job. [His]
claim for disability discrimination thus fails as a matter of law.
The Court refused to consider his failure-to-accommodate
claim because he had not shown “that he was qualified for the position with or
without reasonable accommodation” in light of his poor job performance.
The Court rejected the retaliation claim because concerns of
his deficient performance had been expressed before he disclosed his disability
and requested accommodation and he had not, as discussed above, refuted that
his performance was not meeting his employer’s expectations or showed that he
was treated differently than a similarly-situated employee. As for the mistreatment by the HR Director, “these
statements, although imprudent when viewed standing alone, are insufficient to
show that [the plaintiff’s] poor performance did not actually motivate [the
employer’s] decision to terminate him” in light of his poor performance and the
period of almost a month while the employer engaged in the interactive process.
In contrast, a week earlier, the Court affirmed a jury
verdict in favor of a former cashier who was fired for violating the employer’s rule
against consuming merchandise in front of customers during her shift because
she wanted to self-treat her low blood sugar.
EEOC v. DolGenCorp,
LLC, No. 17-6278 (6th
Cir. 8-7-18). The employer’s summary
rejection of the plaintiff’s requested accommodation and failure to explore alternatives
effectively precluded it from convincing a jury that equally effective
alternatives existed.
According to the Court’s opinion, the plaintiff was a
type-II diabetic who had twice been previously hospitalized and was required to
monitor her blood sugar, take insulin daily and monitor her diet to keep from
shaking, seizing or passing out. When
she has an episode, her doctors recommended that she immediately take 100 calories
of glucose. Although other options were
available, the plaintiff preferred to drink orange juice because it was easy to
measure and took effect quickly. She had
worked for the employer since 2009 and had been promoted several times, to the
point of being trusted to staff the store alone. Prior to her most recent promotion, she would
take quick breaks in the back when she required orange juice, but in her new
role, she could not leave the front of the store unattended. Accordingly, she requested permission to keep
OJ at the cash register and was told that it was against company policy.
Nonetheless, while there were customers in the store when
she was the only employee on duty, she suffered two hypoglycemic episodes. Because she could not leave the front of the store
unattended, she purchased OJ from the store cooler and drank it. Both times, she later informed her General
Manager without consequences. During a
later audit by the District Manager and Regional Loss Prevention Manager of merchandise
shrinkage issues (i.e., shoplifting), she was told that she had been seen
eating Little Debbie snack cakes at the register. She denied that accusation but admitted to
buying and drinking OJ during two medical emergencies. This was found to violate the franchise “grazing
policy,” which forbids employees from consuming merchandise in the store before
paying for it, and she was immediately fired.
The employer argued that it had not been required to provide
the requested accommodation – OJ at the cash register – when other
accommodations were possible according to the plaintiff’s own nurse: “glucose
tablets, or gels, honey, candy, and peanut butter crackers.” However, by summarily rejecting the requested
accommodation and failing to explore alternatives, there was no discussion of
the well-established rule that employers are not required to grant the specific
accommodation requested as long as the employee is provided with an effective
accommodation. There was also no
discussion about these accommodations being ineffective (although the plaintiff
argued that they were not as convenient as OJ).
Rather, the Court found that a jury could find these alternatives to
violate the same rule that had been cited to deny the plaintiff permission to
keep OJ at the cash register, even though that policy provided an explicit
exception for disabilities depending on the circumstances.
The Court also rejected the employer’s argument that it had
a valid reason for terminating her employment: that she violated the
anti-grazing policy that applied to all employees (even though it provided
exceptions for disabilities that were not granted to the plaintiff).
But a company may not illegitimately deny an employee a
reasonable accommodation to a general policy and use that same policy as a
neutral basis for firing him. Imagine a
school that lacked an elevator to accommodate a teacher with mobility
problems. It could not refuse to assign
him to classrooms on the first floor, then turn around and fire him for being
late to class after he took too long to climb the stairs between periods. In the same way, Atkins never would have had
a reason to buy the store’s orange juice during a medical emergency if Dollar
General had allowed her to keep her own orange juice at the register or worked
with her to find another solution.
. .. A defendant may use a legitimate,
nondiscriminatory rationale as a shield against indirect or circumstantial
evidence of discrimination. . . . But a neutral policy is of no moment
when an employee presents direct evidence of discrimination. . . . And failing to provide a protected employee a
reasonable accommodation constitutes direct evidence of discrimination. . . . . Hence
“failure to consider the possibility of reasonable accommodation for known
disabilities, if it leads to discharge for performance inadequacies resulting
from the disabilities, amounts to a discharge solely because of the
disabilities.”
The failure-to-accommodate was all of the direct evidence
required to prove the plaintiff’s case.
She was not required to show any disability-animus by the employer. By way of example, if an employer refused to
retain a blind employee because of the added expense of special software, the
employer’s cost-justification for her termination would not preclude a finding
that its failure to provide a reasonable accommodation (the software) was
direct evidence of discrimination on account of her disability.
Accordingly, the Court refused to consider whether the
non-grazing policy had been equally applied to other, non-disabled employees
because those employees would not be similarly-situated and more importantly,
such a comparison is only required when the plaintiff relies on an indirect or
circumstantial burden of proof. In this
case, the employer’s failure to accommodate (or consider other accommodations)
was direct evidence of discrimination.
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.
