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 (6th 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.
