This morning, the Sixth Circuit rejected an employer’s summary judgment on an ADA claim on the grounds that a factual dispute existed as to whether vacant light duty positions existed into which the employee could have been transferred as an accommodation. Fisherv. Nissan North America, Inc., No. 18-5847 (6th Cir. 2-26-20). The Court concluded that even if the employee was not explicit about requesting a transfer into such a position, the employer was obligated to educate the employee about possible vacant positions into which he could transfer. Further, the Court seemed to indicate that an employer would almost never be permitted to terminate an employee based on an inability to report to work because of a disability unless the employee was never going to be able to report or was unqualified for a reason unrelated to his or her disability. Finally, the Court found that the employer was to blame for a breakdown in the interactive process because it failed to respond to his transfer requests by explaining why the positions were unsuitable or making other suggestions even though it had granted several prior accommodations, including other transfers and medical leaves.
According to the Court’s opinion, the employee had exhausted all FMLA and paid leave due to a failing kidney, and eventual transplant surgery in August 2016. Although he still had not adjusted to the anti-rejection medication or fully recovered from the surgery (which his physician indicated could take another year), he was released to return to work in October 2016 to avoid being discharged. He was told that he could not return to work with restrictions. At his request, the employer transferred him to another position, but he found it physically draining. He requested and was denied extra breaks or to work half-time. When his physician indicated that he required a month of gradual work hardening, the employer then granted him another leave of absence.
He then returned to work about a month later at the end of November to his regular job, but left work early three times and called off three times in the next two months because of his health. Each time he received disciplinary action, he requested a transfer to a light-duty inspection position or to reduce his work hours, but his supervisor told him that such transfers were only available for work-related injuries. On February 3, Human Resources told him that another transfer would not solve his inability to report to work and he was issued a final written warning for poor attendance. Although he had previously been told that he could not return to work with restrictions, Human Resources told him that they needed written medical restrictions, not his own suggestions about possible accommodations. He then stopped coming to work altogether and was fired for absenteeism. After filing suit for failing to engage in the interactive process or providing a requested accommodation, the trial court granted the employer summary judgment. The Sixth Circuit reversed.
The Court’s decision ultimately hinged on a factual dispute as to whether there were vacant light duty positions into which the employee could have been transferred while he recovered from his kidney transplant. The Court conceded that the employer was not required to bump employees to make room for the plaintiff, but the employer had not explicitly produced any evidence about the light duty positions and the plaintiff testified that he believed that there were such vacancies.
Prior to reaching that conclusion, the Court seemed to indicate that an employer would never be able to terminate an employee for poor attendance if that attendance was caused by the employee’s disability. According to the Court, every denial of accommodation is evaluated only under the direct evidence test. Once the employer concedes, as it must, that the employee is qualified, has a disability, was denied a particular reasonable accommodation (i.e., a transfer, etc.) and then was fired for poor attendance caused by the employee’s disability, the employer has then violated the ADA and can only prevail if it can show undue hardship or that the requested accommodation required the elimination of an essential job function (i.e., business necessity).
In this case, the employer argued that the plaintiff was “otherwise unqualified” for his position based on his poor attendance. “But this logic does not apply if the absenteeism is caused by an underlying failure to accommodate a disability. . . . If, by contrast, no reasonable accommodation would cure the attendance problem—as, for example, when an employee is not medically cleared to work at all . . . or blames his absences on car problems rather than disability, . . .. —the employee is not qualified.” When an employee’s attendance problems are not related to his disability, the employee is free to terminate the employee. “For purposes of the “otherwise qualified” analysis, absenteeism that can be cured with a reasonable accommodation is treated differently” than other job requirements.
[The plaintiff] stated on the record that all the absences were “because of [his] kidney.” In its briefing, [the employer] does not dispute this point. Thus, [his] absences do not in and of themselves render him unqualified for his position. Instead, under Dolgencorp, we ask whether those absences could have been avoided with reasonable accommodation—or, as in Brenneman, whether no reasonable accommodation would cure them [because the absences were not caused by the disability].
. . .
The ADA requires employers to “mak[e] reasonable accommodations.” . . . The plaintiff bears the initial burden of showing “that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases.” . . . The defendant then must show either “special (typically case-specific) circumstances that demonstrate undue hardship in the particular circumstances,” . . . or that the proposed accommodation eliminates an essential job requirement, . . .
The plaintiff requested three types of accommodations and only needed to prove that one of them would have been effective to prevail on his claims. The Court ultimately only addressed his request for a transfer. One of the positions – an offline/rotating substitute position -- was admittedly filled with more senior employees and, thus, the employer was not required to grant that request. “First, if there was no opening, the position was not “vacant,” as required by 42 U.S.C. § 12111(9)(B). . . . . And second, it is not “reasonable in the run of cases” for a disability-related request for accommodation to “trump the rules of a seniority system.”
To show disability discrimination in the reassignment context, a plaintiff must show either that “he requested, and was denied, reassignment to a position for which he was otherwise qualified” or that “he requested and was denied some specific assistance in identifying jobs for which he could qualify.” . . . If an employee requests assistance in identifying vacant positions—even a request as generic as “I want to keep working for you—do you have any suggestions?”—then “the employer has a duty under the ADA to ascertain whether he has some job that the employee might be able to fill.” . . . .The employee is not required to use magic words such as “accommodation” and “disability”; rather, we ask whether “a factfinder could infer that [the interaction] constituted a request for an accommodation.” . . . . Then, “to overcome summary judgment, the plaintiff generally must identify the specific job he seeks and demonstrate that he is qualified for that position.”
Between the plaintiff’s requests to his supervisor to transfer him to an inspection position and his request to HR to transfer him, the employer was required to explore transferring him to the inspection position or tell him about open vacancies, including positions that would constitute a demotion. “There is no evidence in the record of comparable attempts by Nissan to identify suitable alternative positions for Fisher.” Further, although the plaintiff testified that he believed that there were vacant inspection or fit positions available, the employer produced no evidence to the contrary.
Thus, with sufficient evidence of a possible transfer being available, the employer could only prevail by showing that the transfer would have constituted an undue hardship or required the removal of an essential function of the job. The employer argued that the prior transfer proved unsuccessful, so it assumed that this transfer would be equally unsuccessful. However, this did not consider the differences in physical effort required in the two positions which might have affected the plaintiff’s health. The Court concluded that simply because the last transfer was unsuccessful does not mean that a transfer to a less physically demanding position would be equally unsuccessful and the employer failed to produce specific facts to support its position.
The Court never once discussed whether attendance or reliable attendance was an essential function of the job and assumed that the plaintiff would be able to meet the attendance requirements of the new position.
The court also faulted the employer for the breakdown in the interactive process. All was going well and in good faith as far as the Court was concerned until the employee returned to work at the end of November and continued to have health issues. The employee requested to transfer to the inspection position or for help finding another suitable position.
At a minimum, [the employer] was then required to “show[] how the accommodation would cause an undue hardship . . . or “that a challenged job criterion is essential,” . . . As discussed above, [the employer] has not carried this burden. Nor is there any evidence that, from late December through early February, as [the employee’s] need for accommodation became even more apparent, [the employer] took any steps that evidenced good-faith participation in the interactive process, such as proposing counter accommodations.
Accordingly, a jury could
find that the employer was at fault for not responding to the employee’s
requests for assistance, for not proposing alternatives and not acting in good
faith to preserve the employee’s employment.
