Vague Requests and Failure to Comply with Accommodation Procedures Doomed ADA Failure-To-Accommodate Claim

Last month, the Sixth Circuit affirmed an employer’s summary judgment on an ADA failure-to-accommodate claim when the employee failed to obtain medical information clarifying his sought accommodation as requested by the defendant employer. Stover v. Amazon.com LLC, No. 21-5421 (6th Cir. 1/10/22).   His initial inquiries were deemed too vague to constitute a request for a reasonable accommodation and his failure to support his own clarification with any medical documentation from his physician constituted an abandonment of the reasonable accommodation process.   Therefore, the employer was not required to grant his requests.  

According to the Court’s opinion, the plaintiff call center employee requested a reduced work schedule to accommodate his gastrointestinal impairment and need for unscheduled restroom breaks.   After he failed to submit any medical documentation to support his first request, his request was administratively closed.   He later submitted a second request, supported with note from his physician indicating that he needed to have a restroom “readily available.”  When asked for clarification, the employee indicated that his work hours should be reduced from 40 to 32 and approval to use the restroom whenever he has an episode, but never provided any medical documentation to support this clarification.  Accordingly, his request was closed without approval.  Dissatisfied with the employer’s process, the plaintiff never sought another accommodation.

Meanwhile, his job performance was found to be deficient, which he usually blamed on his hardware, etc.   He was observed, among other things, being rude to customers and avoiding new calls near the end of his shifts.   Although his equipment was replaced, he continued to have performance issues. He was then warned about his excessive breaks, but he refused to pursue the reasonable accommodation process again even when encouraged to do so.   When his performance did not improve, he was terminated.

The Court found that the plaintiff could not show that he had requested a reasonable accommodation when he had abandoned the reasonable accommodation process.   His initial requests and physician notes – for “more breaks” and a “readily accessible” restroom – lacked

specificity, so much so that they were tantamount to failing to make any accommodation request whatsoever. An employee, after all, must “reasonably inform” an employer about the nature of the requested accommodation, thereby putting the employer on notice of whether and what type of accommodation might be appropriate.

When the plaintiff later requested a reduced work schedule and ability to use the restroom whenever he had an episode, he failed to provide the supporting medical documentation reasonably requested by the employer.

[He] did not follow up, however, with supporting medical documentation to give Amazon fair notice of his needs. Instead, he repeatedly disclaimed any interest in seeking an accommodation. [His] failures in this regard rendered his bathroom-accommodations claims subject to summary judgment.

In litigation, he claimed that he had made another request  -- for leave to seek medical treatment every 8 weeks.  However, there was no evidence that he had ever requested this accommodation.  Moreover, there was no evidence of any medical information submitted by any physician to support this request.

To avoid the weakness of his evidence, the plaintiff argued that he was not required to participate in the employer’s process when he deemed them to be futile:

employees poured cold water on his initial accommodation inquiries, justifying his decision to deem the process futile. But Stover cannot dictate the terms of his accommodation or refuse reasonable requests by those designated to evaluate his accommodation inquiries.

The Court also rejected his retaliation claim because he could not show that the reason for his termination – his manipulation of the computer system to avoid taking customer calls near the end of his shift.”  This is a basic reason to terminate employment.   The employer was able to articulate its belief in his misconduct.  “Under the settled “honest belief rule,” so long as Amazon made a “reasonably informed and considered decision” based on “particularized facts,” no reasonable juror could infer that its reason for firing Stover was pretextual.”  He essentially admitted the infractions, which were similar enough to his other misconduct – being rude to customers – to mirror his pattern of rude behavior.  His “bathroom needs, in other words, were the least of Amazon’s problems with him.”  Moreover, he had given a variety of reasons for taking excessive breaks – a malfunctioning computer and food poisoning, etc. – that undermined his claim that his disability motivated the termination decision.

True, [the plaintiff] did, on one occasion, tell [his manager] that his Crohn’s disease was the cause of his excessive breaks. But that was one cause among many, including food poisoning and a mischievous computer. There is no evidence to suggest that [his] Crohn’s disease motivated [her] to initiate [his] separation any more than any other reason [he] provided for his misconduct. More to the point, far from showcasing a discriminatory intent, [his manager], in her discussion with [him] about his excessive breaks, encouraged [him] to seek an ADA accommodation, hardly the makings of a discrimination claim. [The plaintiff], for the most part, viewed his dispute with [his manager] as personal in nature, not one motivated by some sort of hidden discriminatory intent. In short, no reasonable jury could conclude that Amazon’s proffered reasons for cutting ties with [him] were pretextual.

 

 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.

EEOC “Clarifies” COVID as ADA Disability Guidance

Yesterday, the EEOC updated its COVID-19 Technical Assistance Guidance to “clarify” when COVID-19 can constitute a disability under the ADA.  Very little of this breaks new ground.   An ADA disability is a disability regardless of whether it was caused by COVID and the same analysis applies regardless of the medical diagnosis or condition.    Moreover, “[a]pplicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer.”  Interestingly, the TAG provides that an employee would be “regarded as” having a disability if the employee were, for instance, fired for having COVID or its symptoms unless the employer believed that the illness was BOTH transitory AND minor or unless the employer had a defense (about the employee being, for instance, unqualified or a direct threat to others because of the symptoms).  The direct threat defense, however, would no longer apply if the employee were no longer infectious.   There was no discussion about whether being unvaccinated alone could implicate a direct threat defense.

COVID can cause an impairment to be a disability regardless of whether the COVID itself constitutes a disability.   The impairment need not be permanent to constitute a “substantially limiting” factor, a few months can be sufficient, but a few weeks typically will not be enough to pass the test.  Severe recurring or intermittent episodes can constitute a disability as well.   Not every COVID diagnoses or illness will constitute a disability entitling the person to a reasonable accommodation because many people experience only mild symptoms that resolve within a few weeks.  

The new TAG section provides in relevant part:

N.1. How does the ADA define disability, and how does the definition apply to COVID-19? (12/14/21)

The ADA’s three-part definition of disability applies to COVID-19 in the same way it applies to any other medical condition. A person can be an individual with a “disability” for purposes of the ADA in one of three ways:

“Actual” Disability: The person has a physical or mental impairment that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning, or operation of a major bodily function);

“Record of” a Disability: The person has a history or “record of” an actual disability (such as cancer that is in remission); or

“Regarded as” an Individual with a Disability: The person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

The definition of disability is construed broadly in favor of expansive coverage, to the maximum extent permitted by the law. Nonetheless, not every impairment will constitute a disability under the ADA. The ADA uses a case-by-case approach to determine if an applicant or employee meets any one of the three above definitions of “disability.”

COVID-19 and the ADA

“Actual” Disability

N.2. When is COVID-19 an actual disability under the ADA? (12/14/21)

Applying the ADA rules stated in N.1. and depending on the specific facts involved in an individual employee’s condition, a person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination that applies existing legal standards to the facts of a particular individual’s circumstances. A person infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of weeks—with no other consequences—will not have an actual disability within the meaning of the ADA. However, depending on the specific facts involved in a particular employee’s medical condition, an individual with COVID-19 might have an actual disability, as illustrated below.

Physical or Mental Impairment: Under the ADA, a physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 is a physiological condition affecting one or more body systems. As a result, it is a “physical or mental impairment” under the ADA.

Major Life Activities: “Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and major activities in which someone engages, such as walking or concentrating. COVID-19 may affect major bodily functions, such as functions of the immune system, special sense organs (such as for smell and taste), digestive, neurological, brain, respiratory, circulatory, or cardiovascular functions, or the operation of an individual organ. In some instances, COVID-19 also may affect other major life activities, such as caring for oneself, eating, walking, breathing, concentrating, thinking, or interacting with others. An impairment need only substantially limit one major bodily function or other major life activity to be substantially limiting. However, limitations in more than one major life activity may combine to meet the standard.

Substantially Limiting: “Substantially limits” is construed broadly and should not demand extensive analysis. COVID-19 need not prevent, or significantly or severely restrict, a person from performing a major life activity to be considered substantially limiting under Title I of the ADA.

The limitations from COVID-19 do not necessarily have to last any particular length of time to be substantially limiting. They also need not be long-term. For example, in discussing a hypothetical physical impairment resulting in a 20-pound lifting restriction that lasts or is expected to last several months, the EEOC has said that such an impairment is substantially limiting. App. to 29 C.F.R. § 1630.2(j)(1)(ix). By contrast, “[i]mpairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” Id.

Mitigating Measures: Whether COVID-19 substantially limits a major life activity is determined based on how limited the individual would have been without the benefit of any mitigating measures–i.e., any medical treatment received or other step used to lessen or prevent symptoms or other negative effects of an impairment. At the same time, in determining whether COVID-19 substantially limits a major life activity, any negative side effects of a mitigating measure are taken into account.

Some examples of mitigating measures for COVID-19 include medication or medical devices or treatments, such as antiviral drugs, supplemental oxygen, inhaled steroids and other asthma-related medicines, breathing exercises and respiratory therapy, physical or occupational therapy, or other steps to address complications of COVID-19.

Episodic Conditions: Even if the symptoms related to COVID-19 come and go, COVID-19 is an actual disability if it substantially limits a major life activity when active.

N.3. Is COVID-19 always an actual disability under the ADA? (12/14/21)

No. Determining whether a specific employee’s COVID-19 is an actual disability always requires an individualized assessment, and such assessments cannot be made categorically. See 29 C.F.R. § 1630.2 for further information on the ADA’s requirements relating to individualized assessment.

N.4. What are some examples of ways in which an individual with COVID-19 might or might not be substantially limited in a major life activity? (12/14/21)

As noted above, while COVID-19 may substantially limit a major life activity in some circumstances, someone infected with the virus causing COVID-19 who is asymptomatic or a person whose COVID-19 results in mild symptoms similar to the common cold or flu that resolve in a matter of weeks—with no other consequences—will not be substantially limited in a major life activity for purposes of the ADA. Based on an individualized assessment in each instance, examples of fact patterns include:

Examples of Individuals with an Impairment that Substantially Limits a Major Life Activity:

An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating, which the employee’s doctor attributes to the virus, is substantially limited in neurological and brain function, concentrating, and/or thinking, among other major life activities.

An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months, is substantially limited in respiratory function, and possibly major life activities involving exertion, such as walking.

An individual who has been diagnosed with COVID-19 experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months. The individual is substantially limited in cardiovascular function and circulatory function, among others.

An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that linger for many months, even if intermittently, is substantially limited in gastrointestinal function, among other major life activities, and therefore has an actual disability under the ADA. For other examples of when “long COVID” can be a substantially limiting impairment, see the DOJ/HHS Guidance.

Examples of Individuals with an Impairment that Does Not Substantially Limit a Major Life Activity:

An individual who is diagnosed with COVID-19 who experiences congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks, but experiences no further symptoms or effects, is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is so even though this person is subject to CDC guidance for isolation during the period of infectiousness.

An individual who is infected with the virus causing COVID-19 but is asymptomatic—that is, does not experience any symptoms or effects—is not substantially limited in a major bodily function or other major life activity, and therefore does not have an actual disability under the ADA. This is the case even though this person is still subject to CDC guidance for isolation during the period of infectiousness.

As noted above, even if the symptoms of COVID-19 occur intermittently, they will be deemed to substantially limit a major life activity if they are substantially limiting when active, based on an individualized assessment.

“Record of” Disability

N.5. Can a person who has or had COVID-19 be an individual with a “record of” a disability? (12/14/21)

Yes, depending on the facts. A person who has or had COVID-19 can be an individual with a “record of” a disability if the person has “a history of, or has been misclassified as having,” 29 C.F.R. § 1630.2(k)(2) , an impairment that substantially limits one or more major life activities, based on an individualized assessment.

“Regarded As” Disability

N.6. Can a person be “regarded as” an individual with a disability if the person has COVID-19 or the person’s employer mistakenly believes the person has COVID-19? (12/14/21)

Yes, depending on the facts. A person is “regarded as” an individual with a disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has such an impairment, unless the actual or perceived impairment is objectively both transitory (lasting or expected to last six months or less) and minor. For this definition of disability, whether the actual or perceived impairment substantially limits or is perceived to substantially limit a major life activity is irrelevant.

N.7. What are some examples of an employer regarding a person with COVID-19 as an individual with a disability? (12/14/21)

The situations in which an employer might “regard” an applicant or employee with COVID-19 as an individual with a disability are varied. Some examples include:

An employer would regard an employee as having a disability if the employer fires the individual because the employee had symptoms of COVID-19, which, although minor, lasted or were expected to last more than six months. The employer could not show that the impairment was both transitory and minor.

An employer would regard an employee as having a disability if the employer fires the individual for having COVID-19, and the COVID-19, although lasting or expected to last less than six months, caused non-minor symptoms. In these circumstances, the employer could not show that the impairment was both transitory and minor.

N.8. If an employer regards a person as having a disability, for example by taking an adverse action because the person has COVID-19 that is not both transitory and minor, does that automatically mean the employer has discriminated for purposes of the ADA? (12/14/21)

No. It is possible that an employer may not have engaged in unlawful discrimination under the ADA even if the employer took an adverse action based on an impairment. For example, an individual still needs to be qualified for the job held or desired. Additionally, in some instances, an employer may have a defense to an action taken on the basis of the impairment. For example, the ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the CDC-recommended period of isolation, due to the significant risk of substantial harm to the health of others. See WYSK Question A.8. Of course, an employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition to disallow the employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

Other Conditions Caused or Worsened by COVID-19 and the ADA

N.9. Can a condition caused or worsened by COVID-19 be a disability under the ADA? (12/14/21)

Yes. In some cases, regardless of whether an individual’s initial case of COVID-19 itself constitutes an actual disability, an individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA. For example:

An individual who had COVID-19 develops heart inflammation. This inflammation itself may be an impairment that substantially limits a major bodily function, such as the circulatory function, or other major life activity, such as lifting.

During the course of COVID-19, an individual suffers an acute ischemic stroke. Due to the stroke, the individual may be substantially limited in neurological and brain (or cerebrovascular) function.

After an individual’s COVID-19 resolves, the individual develops diabetes attributed to the COVID-19. This individual should easily be found to be substantially limited in the major life activity of endocrine function. See Diabetes in the Workplace and the ADA for more information.

In some cases, an individual’s COVID-19 may also worsen the individual’s pre-existing condition that was not previously substantially limiting, making that impairment now substantially limiting. For example:

An individual initially has a heart condition that is not substantially limiting. The individual is infected with COVID-19. The COVID-19 worsens the person’s heart condition so that the condition now substantially limits the person’s circulatory function.

Definition of Disability and Requests for Reasonable Accommodation

N.10. Does an individual have to establish coverage under a particular definition of disability to be eligible for a reasonable accommodation? (12/14/21)

Yes. Individuals must meet either the “actual” or “record of” definitions of disability to be eligible for a reasonable accommodation. Individuals who only meet the “regarded as” definition are not entitled to receive reasonable accommodation.

Of course, coverage under the “actual” or “record of” definitions does not, alone, entitle a person to a reasonable accommodation. Individuals are not entitled to an accommodation unless their disability requires it, and an employer is not obligated to provide an accommodation that would pose an undue hardship. See WYSK Section D, and Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA for more information.

N.11. When an employee requests a reasonable accommodation related to COVID-19 under the ADA, may the employer request supporting medical documentation before granting the request? (12/14/21)

Yes. As with employment accommodation requests under the ADA for any other potential disability, when the disability or need for accommodation is not obvious or already known, an employer may ask the employee to provide reasonable documentation about disability and/or need for reasonable accommodation. Often, the only information needed will be the individual’s diagnosis and any restrictions or limitations. The employer also may ask about whether alternative accommodations would be effective in meeting the disability-related needs of the individual. See WYSK Questions D.5. and D.6. for more information.

The employer may either ask the employee to obtain the requested information or request that the employee sign a limited release allowing the employer to contact the employee’s health care provider directly. If the employee does not cooperate in providing the requested reasonable supporting medical information, the employer can lawfully deny the accommodation request.

N.12. May an employer voluntarily provide accommodations requested by an applicant or employee due to COVID-19, even if not required to do so under the ADA? (12/14/21)

Yes. Employers may choose to provide accommodations beyond what the ADA mandates. Of course, employers must provide a reasonable accommodation under the ADA, absent undue hardship, if the applicant or employee meets the definition of disability, requires an accommodation for the disability, and is qualified for the job with the accommodation. Accommodations might consist of schedule changes, physical modifications to the workplace, telework, or special or modified equipment. See, e.g., WYSK Section D or U.S. Department of Labor Blog, Workers with Long COVID-19: You May Be Entitled to Workplace Accommodations for more information.

Applicability of Definition of Disability

N.13. If an employer subjected an applicant or employee to an adverse action, and the applicant or employee is covered under any one of the three ADA definitions of disability, does that mean the employer violated the ADA? (12/14/21)

No. Having a disability, alone, does not mean an individual was subjected to an unlawful employment action under the ADA.

For example, the fact that an applicant or employee has a current disability, or a record of disability, does not mean that an employer violated the ADA by not providing an individual with a reasonable accommodation. As discussed in Section D., there are several considerations in making reasonable accommodation determinations, including the employee’s need for the accommodation due to a disability and whether there is an accommodation that does not pose an undue hardship to the employer.

Similarly, the fact that an employer regarded an applicant or employee as an individual with a disability does not necessarily mean that the employer engaged in unlawful discrimination. For example, the ADA does not require an employer to hire anyone who is not qualified for the job. Moreover, in some instances, an employer may have a defense to an employment action taken based on an actual impairment, such as where the individual poses a direct threat to the health or safety of themselves or others in the workplace.

N.14. Do any ADA protections apply to applicants or employees who do not meet an ADA definition of disability? (12/14/21)

Yes. The ADA’s requirements about disability-related inquiries and medical exams, medical confidentiality, retaliation, and interference apply to all applicants and employees, regardless of whether they have an ADA disability. By contrast, an individual must have a “disability” to challenge employment decisions based on disability, denial of reasonable accommodation, or disability-based harassment.

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.

Rush to Termination and Sloppy Documentation Cost Employer a Summary Judgment in an ADA Case

 

Earlier this month, the Sixth Circuit reversed a summary judgment granted to an employer in an ADA lawsuit brought by the EEOC.  EEOC v. West Meade Place LLP, No. 19-6469 (6^th Cir. 2-8-21).  The employee suffered from anxiety attacks six months after being hired when new co-workers were rude to her and she requested intermittent FMLA leave.  After informing the plaintiff that she was not eligible for FMLA leave and that any leave would be unpaid, her manager told her that she would be terminated if she was unable to work, but that she could not return to work without a medical release.  The Court found that there were disputed facts and credibility issues as to whether the employee’s termination two days later was based on the manager’s perception that the plaintiff was disabled.  “[T]he ADA requires only that there was a perceived impairment, not necessarily that the employer perceived the disability to limit a major life activity.”

According to the Court’s opinion, the Nashville employer requested a voluntary medical history related to her ability to work from the plaintiff three days after she started work (instead of between her conditional job offer and start date).  She reported taking prescription drugs for anxiety.  When her new co-workers became rude to her, she reported their misconduct and called off work or leave early because of panic attacks.  She then sought FMLA leave.  The doctor’s statement indicated that she would need it for a few days a few times each year because of the panic attacks, but her managers reported that she insisted that she was entitled to twelve consecutive weeks with pay.   After being denied paid FMLA leave, the plaintiff sought to return to work immediately, but was told that she would need a medical release.

There are then three different versions of what transpired.  The plaintiff alleged that she told her doctor that she required a medical release or she would be terminated the next day.  The medical office called the employer and indicated that it was told the next day that she needed to be reassessed and then released to return without any medical restrictions or emotional distress.   In particular, the manager could not understand why she could require FMLA one day and then the next was ok to return to work.  The plaintiff was fired later that day for not being able to perform her job duties.

According to the manager, the plaintiff had initially shown her a note indicating that she needed to be off work for 12 weeks.  After FMLA leave was denied and she was told that she required a medical release to return to work, the plaintiff brought such a release the next day (which then disappeared from her personnel file).  When the employer called the physician to confirm, it learned that the doctor had not released the plaintiff to return to work and did not intend to do so.   The doctor also claimed to be operating a pain clinic.   The manager completed paperwork indicating that the plaintiff was terminated for being unable to work (so that she would get unemployment), but claims that she told other managers about the falsification of the medical release.  Nothing about the document falsification was relayed to the EEOC when the plaintiff filed her Charge of Discrimination.

The termination documents indicated that the plaintiff was unable to perform her job duties.  However, they also indicated that the plaintiff had relied on a physician in Indiana where her sister worked (which the plaintiff disputed).   The notes indicated that the physician’s office had refused to release the plaintiff to return to work without a reassessment.  When the manager relayed this to the plaintiff, she claimed to have called her physician’s office and obtained their consent for her to return to work.  She asked her manager to call a particular telephone number and ask for a particular person, who turned out to be the plaintiff’s sister.  (The plaintiff apparently admitted that she brought her sister into the discussion in order to better explain the plaintiff’s FMLA rights.). The manager then called the physician again to re-confirm that he would not release the plaintiff to return without a new evaluation.  After that, the manager lectured the plaintiff about falsifying medical releases.   When no release was provided, the employee was terminated. 

Remarkably, despite the FMLA request and reason for her termination, the employer argued that there was no evidence to show that it knew or perceived the plaintiff as disabled.   In particular, they point to the fact that the plaintiff stated that she wanted to immediately return to work as soon as she was informed that any leave of absence would be unpaid.  The Court had no difficulty finding that there was sufficient evidence to conclude that plaintiff may suffer a disability even if it was transitory.  (The employer apparently never raised the affirmative defense that any impairment was minor and transitory).   Notably, the medical office records reflect that the manager had specifically said that the medical release must state: “no emotional distress can happen.”  Also, it was disputed whether the plaintiff was motivated to return by the unpaid leave or by the undisputed denial of FMLA leave.  Thus, it was factually possible that the employer perceived her as disabled.   

Although—as West Meade argues—Jarvis may not have considered an anxiety disorder to constitute a disability, a “regarded as” claim under the ADA requires only that there was a perceived impairment, not necessarily that the employer perceived the disability to limit a major life activity. . . .

Additionally, as documented, Jarvis terminated Kean because Kean was “unable to do her job,” with no evidence that she was inhibited from doing her job by anything but her anxiety disorder. “To be sure . . . [the employer’s] knowledge of [Kean’s] medical issues—alone—is insufficient to carry the day,” . . . . but this perspective supports the EEOC’s argument not only that Jarvis was aware of Kean’s impairment, but also that Jarvis believed it would inhibit Kean from fully performing her job duties. This contradiction in Jarvis’s testimony creates a genuine issue of material fact.

The EEOC argued that the evidence showed that “but for” the employee’s admission of having an anxiety disorder and requesting an accommodation (i.e., a medical leave of absence), the employer would not have terminated her.  The employer relied on the evidence about the falsification of the medical release (i.e., either the missing note or the sneaky request to speak with the plaintiff’s sister). 

The Court indicated that the jury could interpret the conflicting evidence any number of ways and, therefore, only the jury could ultimately resolve whether the employer was motivated by the plaintiff’s anxiety or by the unusual events surrounding the plaintiff’s attempt to obtain a medical release in order to return to work.   

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.

Sixth Circuit Rejects Shortened Limitations Periods Under Title VII, the ADA and the ADEA, but Affirms that Employee Could Not Show She Was Singled Out

 

Last month, the Sixth Circuit expanded its earlier prohibition against the contractual shortening of limitations periods from Title VII claims to cover the ADA and the ADEA as well, but agreed that the contract would still apply to shorten the limitations periods applying to ERISA, §1981 and Ohio Civil Rights Act claims.    Thompson v. Fresh Products LLC, No. 20-3060 (6^th Cir. Jan. 15, 2021).    In addition, the Court affirmed the employer’s summary judgment on the employee’s discrimination and failure to accommodate claims on the grounds that she failed to show that she was singled out for the RIF on account of her race, age or disability and because being able to work a full shift on the assembly line was an essential function of her job.  Among other things, her sample sizes were too small to provide a meaningful statistical analysis. 

According to the Court’s decision the Plaintiff was hired in July 2016, worked the third shift and was one of the company’s most productive employees on the assembly line.  Upon being hired, she signed an Employee Handbook Acknowledgment which shortened the time period for suing the employer to six months, or such reasonable time if a court later found six months to be too short.     In October, she requested to work part-time on account of arthritis in her back.  While her supervisor agreed to look into it, no one responded to her request.  Later, the company realized that it needed to reduce its workforce and requested which staff would agree to work 10-hour shifts instead of 8-hour shifts.  Plaintiff was the only employee who did not agree to work a 10-hour shift (due to child care responsibilities) and was ultimately laid off at the end of January along with three other employees (and two others who had either had indicated that they could or would no longer work). 

The Plaintiff promptly filed OCRC and EEOC Charges under Title VII, the ADA and the ADEA.  She filed suit within 90 days after her Charge was dismissed.  The trial court granted summary judgment to the employer and the Sixth Circuit affirmed that she failed to satisfy her prima facie burden of proof.  

The first issue involved whether her lawsuit was timely when it was filed more than six months after she was laid off.   The Court agreed that the Employee Handbook Acknowledgement barred her OCRA claims under Ohio law.  However, it found that the limitations periods for claims under Title VII, the ADA and the ADEA were substantive statutory rights which could not be limited by contract, especially considering the national policy in favor of a uniform limitations period.  (Of course, never mind that the limitations period to file a Charge is not uniform).  Accordingly, it found her federal claims to be timely.

The Court rejected her failure to accommodate claim because her request to work part-time was unreasonable and because the Sixth Circuit does not recognize an independent cause of action for an employer’s failure to engage in the interactive process.    While the duty to engage in the interactive process is mandatory, “failure to engage in the interactive process does not give rise to an independent claim.”  She failed to carry her burden of proving that her requested accommodation was objectively reasonable.  No other employee was permitted to work part-time on that production line and the Court refused to consider the fact that the employer permitted one employee to work part-time in a different department under different working conditions.  It also did not discuss the employer’s obligation to discuss potential transfers to a different position.

Although the handbook does not state that employees must work full time, it states that production workers must be able to work 10–12 hours at a time—at least the length of a full shift. Shaferly testified that Fresh Products does not have part-time production workers because it is too difficult to manage with the amount of turnover at the company, and Hartman testified that it would be very difficult to have someone leave in the middle of a shift because it would require “figur[ing] out how to move someone else to take their spot” or “cover [their] machine.”

The Court also rejected her discrimination claim because she could not show that she was singled out for the RIF on account of her disability in light of her admission that she had never indicated a willingness or ability to work the 10-hour shifts.  Indeed, she “was the only employee who stated she could not work either shift, never selected a preference for one of the shifts when Shaferly followed up after the survey, and did not voluntarily quit.” 

The Court rejected the argument that she could not prove that she had a disability because she did not have any lifting restrictions imposed by her physician after she had been hired and had continued to work full-time until she was laid off because she had such medical restrictions imposed while working at a prior employer.  The Court also rejected the argument that she was unqualified for her position because she was unwilling to work 10-hour shifts because of the ambiguity in the employer’s request in seeking “preferences” instead of willingness or ability. 

The Court also found that she could not prove that she was singled out for the RIF on account of her age.  Only five employees were laid off and all of them were over the age of 40.  However, two of them were not comparable because one volunteered for the RIF and the other announced that she had to leave on February 1 (to go to jail).    The other two employees had admittedly poor production records.  When the Plaintiff pointed to the retention of a younger female, the Court pointed out that there was no evidence that that the comparator was less qualified than Plaintiff.  When the Plaintiff pointed to one young employee who was retained even though he had poor production and attendance compared to her, the Court pointed out that:

The probative value of this evidence in the age-discrimination context is undermined by the fact that, according to the final list of those considered for layoff (excluding those who quit or were terminated for cause before the layoff), half of the other employees who had lower production numbers or higher absenteeism than Thompson and were retained were members of the protected class (i.e., forty or older), and two were older than Thompson at the time of the RIF. This evidence does not tend to show that Thompson was singled out because of her age.

The Court also rejected her statistical “evidence” that she was singled out for the RIF on account of her race.

[W]ith the exception of [the employee] who informed Fresh Products that she would be incarcerated, the five employees terminated as part of the RIF were all black, Hispanic, or biracial; and 2) of the 18 people considered for layoff, 78% were black. These statistics suffer from the same shortcomings as those provided in support of Thompson’s ADEA claim: the sample sizes are too small to be reliable, and Thompson has failed to provide any analysis of the statistics’ significance. They also do not address a comparison to the relevant pool: roughly 70% of Fresh Products’ employees are black, Hispanic, or biracial.

When the Plaintiff identified a white employee who was retained with poorer production and attendance that her, the Court pointed out that:

[O]f the ten employees with lower productivity or higher absenteeism than Thompson who were considered for layoff but retained, only [that employee] and one other employee . . . are white.  Six are black, and one is biracial. In light of this context, Fresh Products’ retention of [that employee] does not tend to indicate that Thompson was laid off because of her race.

The dissenting judge would have found a factual dispute as to pretext when a non-disabled employee who had requested to work part-time to accommodate her class scheduled was retained even though that employee had also – unlike the Plaintiff – initially agreed to work a 10-hour shift before resigning.

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.

Sixth Circuit: Dueling Diagnoses Justified Employer's Request for New Medical Examinations

At the end of July, a unanimous Sixth Circuit affirmed an employer’s summary judgment on an ADA retaliation and public policy wrongful discharge claim where the employee objected to the employer’s reasonable accommodation conditions (that he wear a CPAP machine) and the parties debated conflicting medical reports as to whether he suffered from sleep apnea.  Allmanv. WalMart, Inc., No. 19-4220 (July 30, 2020).   The Court found the employer’s conditions to be reasonable under the circumstances and entitled to request additional medical examinations.  Ultimately, “arguing about the accuracy of the employer’s assessment is a distraction because the question is not whether the employer’s reasons for a decision are right but whether the employer’s description of its reasons is honest.”

According to the Court’s opinion, the plaintiff commercial truck driver disputed that he suffered from sleep apnea.  Federal DOT regulations require drivers to submit to annual physical examinations by specially certified physicians and to be free of sleep apnea.   Accordingly, once sleep apnea had been indicated during a mandatory annual medical examination, the employer required the plaintiff to submit at the employer’s expense to a sleep study, which confirmed the diagnosis.  He was thereafter required to wear a CPAP machine for at least four hours each night that he slept in his truck and this was apparently monitored remotely.  The plaintiff found the machine to be uncomfortable and objected to the requirement.  He was suspended each time he did not comply and could not return to work until he had worn it for five consecutive nights.  

The plaintiff then paid for his own sleep study, which was conducted by a physician who had not been certified by the DOT (or at least no evidence of such certification was ever provided), and it denied that he suffered from sleep apnea.   The employer requested that the plaintiff submit to a new DOT physical.  Sadly, the physician assistant simply accepted the results of the recent sleep study without conducting an independent examination. Accordingly, the employer requested that the plaintiff submit to a third sleep study by a third sleep specialist to resolve the prior conflict.  This study again confirmed that plaintiff suffered from sleep apnea.  After this study, the employer directed the plaintiff to wear the CPAP machine for 8 hours/night every night and would not permit him to return to work until he had worn it for three consecutive nights.

When the plaintiff still refused to wear the CPAP machine, the employer gave him one last chance:  within seven days he could take BOTH his non-apnea report and its most recent sleep study to a DOT certified physician of his choice to evaluate the conflicting medical reports and render a medical opinion.   The plaintiff refused and instead resigned his employment.  This lawsuit followed.

The Court found the employer’s accommodation of the plaintiff’s sleep apnea condition to be reasonable because without regular treatment with a CPAP machine, the plaintiff would not be qualified to work as a commercial truck driver under DOT regulations and could be a danger to other drivers when suffering from sleep deprivation while working. 

Regardless of whether the plaintiff could prove a prima facie case of retaliation, the employer provided a legitimate and non-retaliatory reason for its actions.

This court has explained that “[a]n employee is not protected when he violates legitimate rules and orders of his employer, disrupts the employment environment, or interferes with the attainment of his employer’s goals.” Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1312 (6th Cir. 1989). And Walmart’s program of requiring drivers who have sleep apnea to wear a CPAP machine constitutes a legitimate safety requirement and disability accommodation.

The Court rejected the plaintiff’s pretext arguments.  “Walmart had before it two separate studies demonstrating that Allman had sleep apnea, and the company reasonably sought to ensure that Allman’s twice-diagnosed medical condition was under control.”  The plaintiff could not belatedly attack the validity of the two sleep studies and require his employer to believe his explanation over the accounts of two different certified professionals.   The employer was not required to accept the results of his physician’s sleep study, especially since he failed to ever produce evidence that his physician was DOT certified.  The plaintiff also failed to produce evidence that the CPAP requirement was imposed out of spite.  On the contrary, he admitted that the employer imposed the requirement because it believed that he suffered from sleep apnea.

The employer was not required to accept as binding a DOT recertification which was issued in error.  Instead, “employers may permissibly disregard DOT cards issued in error.”  The employer’s request for a third-sleep study – after the erroneous DOT recertification the first two studies disagreed  -- was reasonable.  Indeed, it confirmed the result of the first sleep study finding sleep apnea.

The Court also rejected the plaintiff’s wrongful discharge claim.  First, it could not find where he had opposed unsafe working conditions by refusing to wear the CPAP machine: “Walmart’s CPAP requirement was not an unsafe working condition, but instead a disability accommodation meant to promote public safety on the highways and to ensure compliance with federal law.”

Further, the Court questioned whether his objection to the CPAP machine’s safety had been made in good faith:

we believe that “good faith” required an objectively reasonable belief that the CPAP machine was an unsafe working condition. Nothing in the record before us would allow a reasonable person to hold such a belief. Allman’s personal discomfort in wearing a CPAP machine that so many others have successfully used to alleviate the dangers of sleep apnea is indeed unfortunate, but his personal discomfort does not satisfy the jeopardy element of his Greeley claim.

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.

Sixth Circuit: Employers May Require Medical Evidence that Requested Accommodation is Medically Necessary

As the pandemic was hitting Ohio, the Sixth Circuit affirmed an employer’s summary judgment on ADA failure-to-accommodate and constructive discharge claims where the employee sought to work from home three days each week, but never produced any medical documentation showing that this request was required by his shoulder disability.  Tchankpa v. Ascensia Retail Group, Inc., No. 19-1391 (6^th Cir. 3-6-20). “The ADA is not a weapon that employees can wield to pressure employers into granting unnecessary accommodations or reconfiguring their business operations.  Instead, it protects disabled employees from disability-related mistreatment—no more, no less.”  The Court found that requested accommodations are reasonable only if they “address a key obstacle preventing [the employee] from performing a necessary function of [his job.]”  Further, “[a]n employee might not always need to show his accommodation is medically necessary to win a failure to accommodate claim.  But he must do so when asked by his employer.” Finally, the constructive discharge claim failed because he failed to show an objectively intolerable workplace or nexus from any intolerable working conditions and his disability.


According to the Court’s opinion, the plaintiff transported laptops to and from his office as part of his job.  He began seeking treatment for shoulder pain in October 2012 and claimed to have injured it at work in December 2012, but did not report a workers’ compensation injury until May 2013.  He claimed that it impeded daily activities, like bathing, cooking and driving, etc.  He sought treatment from many providers and had many different diagnosis.  He obtained treatment for pain until at least 2017.   Despite several requests from his employer (which had permitted him to arrive late and leave early for medical appointments), he did not seek a medical opinion about his opinion to work until October 2013.


The employer made clear that he could not regularly work from without supporting medical documentation from a medical provider.  Although the plaintiff requested to work from home three days each week, the only documentation the plaintiff provided stated that he could work as long as he had intermittent breaks and did not lift over 10 pounds.   The plaintiff pointed out that other employees were permitted to work from home, but was told this had nothing to do with his should injury.  (After all, employers may not reveal the medical conditions of other employees, etc.).   When the conversation became tense, security was called. The next day, the employer reiterated that the plaintiff could not work from home or transfer, but he could resign if he was unhappy.  The plaintiff then lodged an internal complaint of workplace harassment and discrimination, but then also emailed a new proposal for taking time off from work.   However, instead of filing a request for a leave of absence, the plaintiff ultimately resigned on the grounds that he was not provided sufficient training or appreciation.   He filed suit three years later.


Because this was a failure-to-accommodate case, the Court utilized a multi-partdirect evidence framework:

(1)   The plaintiff bears the burden of establishing that he or she is disabled.  (2) The plaintiff bears the burden of establishing that he or she is “otherwise qualified” for the position despite his or her disability: (a) without accommodation from the employer; (b) with an alleged “essential” job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.

The plaintiff’s claim failed in this case because

 he omits a key requirement: proposing a reasonable accommodation.  And requested accommodations are reasonable only if they “address a key obstacle preventing [the employee] from performing a necessary function of [his job . . . . .  So a disabled employee cannot ask to work from home for convenience and then sue under the ADA if that request is denied.

Employers also bear responsibilities when receiving a requested accommodation.  They must consider: “(1) the particular job involved, its purpose, and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee . . . .  Along with these factors, an accommodation is likely unreasonable if it frustrates attendance or creates “an unlimited ability to leave work[.]”   . . . .Finally, the employee and employer must engage in “an informal, interactive process” to negotiate an accommodation that allows the disabled employee to work despite his limitations.   . .

During this process, the disabled employee’s requested accommodation does not bind his employer.  For instance, employers may require documentation supporting an employee’s requested accommodation. . . . .  In Kennedy, the employer made “numerous attempts to acquire medical documentation [describing its employee’s condition] and [the employee] persistently refused to cooperate.”  Id.  And the court ruled that the employer had a right to assess its employee’s medical condition before greenlighting a proposed break schedule.  Id.  It follows that an employee’s failure to provide requested medical documentation supporting an accommodation precludes a failure to accommodate claim.  Even more, employers need not immediately implement or accept accommodations proposed by an employee.   . . .  So a delay in providing a reasonable accommodation is not always actionable.  . . .

 . . .  Accommodations must be “necessary” considering the employee’s “physical limitations.”   . . .  And it’s hard to imagine a physically necessary accommodation that isn’t medically necessary.  Thankfully we need not attempt that exercise.  That’s because Ascena requested medical documentation tying Tchankpa’s work-from-home request to his injured shoulder.  As a result, Tchankpa needed to provide that documentation.  An employee might not always need to show his accommodation is medically necessary to win a failure to accommodate claim.  But he must do so when asked by his employer. . . .

In short, Tchankpa bore two burdens:  He needed to (1) show his work-from-home request was reasonable and (2) provide Ascena with medical documentation supporting the accommodation’s necessity.  He did neither.  Although Tchankpa provided Ascena proof of his injury, that document didn’t touch upon Tchankpa’s inability to perform the job.  If anything, Dr. Stacy’s report confirmed that Tchankpa could do his job without working from home.   . . . .

What’s more, Tchankpa did not give a satisfactory response to Ascena’s request for medical documentation.  Under Kennedy, employers are entitled to medical documentation confirming the employee’s disability and need for accommodation.   . . .  And Ascena invoked that right in early 2013.  Yet Ascena did not receive documents discussing Tchankpa’s medical restrictions until October 2013.  Far from showing a necessary accommodation, Dr. Stacy’s report stated that Tchankpa could work eight hours per day, five days per week.  Without medical documentation showing that Tchankpa’s disability required work from home, Ascena had no duty to grant Tchankpa’s request.  After all, we presume on-site attendance is an essential job requirement. . . .

The Court also rejected the plaintiff’s constructive discharge claim on the grounds that he failed to show an objective intolerable workplace.

But intolerability is a demanding standard.  For instance, we have said that demotion, reduction in salary, badgering, harassment, humiliation, and sexual assault suggest an objectively intolerable workplace.   . . . 

Yet criticism and negative feedback do not suffice, especially when contained to a few isolated incidents.   . . .  And an employee’s subjective discontent does not create an ADA claim.   . . . .

               . . .

First, receiving negative feedback without consequence does not implicate the ADA.  After all, Tchankpa resigned without receiving formal punishment from Ascena.  So nothing serious came from Ascena criticizing Tchankpa.   . . What’s more, Ascena gave Tchankpa flexible hours to seek treatment for his shoulder.  Even Tchankpa’s resignation letter airs no grievances relating to his physical limitations—he mostly complains that Ascena didn’t appreciate him or invest in him enough.   . . .

That leaves us with the alleged termination threat.  Ascena allegedly told Tchankpa that it might fire him if he violated its time off policy by seeking treatments during work hours.  And when Tchankpa insisted on working from home three days per week, Ascena reminded him that he could quit if he didn’t like his job’s requirements.  So he argues that these facts show Ascena pressured him to leave.  But Ascena only insisted that Tchankpa accept its denial of his work-from-home request.  As shown above, Ascena permissibly denied Tchankpa’s proposed accommodation.  So even forcefully reiterating this lawful denial is not a threatened termination.  Facing repeated prodding from its employee, Ascena eventually put its foot down to enforce its decision.  Thus we cannot conclude that, as for Tchankpa’s termination, “the handwriting was on the wall and the axe was about to fall.”   . . .  Without the immediate or credible threat of adverse action, Ascena’s comments about Tchankpa leaving his job did not create an objectively intolerable workplace.

As for proving an employer’s subjective intent to constructively discharge the plaintiff, the Court agreed that this requirement may no longer be required.  Nonetheless,

This is not to say that Tchankpa would win under Green simply by showing an objectively intolerable workplace.  Even under Green, it cannot be the case that objectively intolerable conditions faced by all workers would give rise to an ADA claim.  In other words, disabled employees could not recover under Green because they quit over conditions equally offensive to both disabled and able-bodied employees.  We know that because Green focuses on “circumstances of discrimination” and whether “the discrimination [was] bad,” and not on general circumstances of the workplace.  Id. at 1780.  So Green, even if it eliminates our current subjective intent requirement, does not permit a constructive discharge ADA claim just because a disabled employee suffers an objectively intolerable workplace.  Employees invoking Green would still need to show a nexus between their disability and the intolerable workplace, even if they need not show that the employer created the substandard workplace with the intent to oust that employee. 

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.