Sixth Circuit Rejects Disability Discrimination Claim When Employee Refused to Submit Reasonable Accommodation Request

Yesterday, in an instructive decision, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on disability discrimination and failure to accommodate claims based on the former employee’s withdrawal/failure to participate in the interactive process.  Wilson v. ODMAS, No. 23-3994 (6^TH Cir. Aug. 14, 2024). The Court agreed that the employee failed to show that she proposed a reasonable accommodation when she refused to complete or return forms from her physician confirming the disability and necessity for the requested accommodations of schedule flexibility and telework even though she had previously requested and exhausted FMLA leave and short-term disability.    This was a “critical failure” to participate in, and “voluntary withdrawal” from, the interactive process necessary to prevail on a failure to accommodate claim.  Further, the Court rejected her argument that the employer’s failure to accommodate was a “continuing violation,” and dismissed the remaining allegations since her accommodation requests had been made more than two years before she filed suit and were, therefore, untimely.

According to the Court’s opinion, the employee had several mental health impairments which affected her ability to maintain predictable attendance.  Her job duties involved travelling and working in the office.   She requested and received approval for intermittent FMLA leave.  However, she was placed on a last chance agreement after it was discovered that she had claimed to be working (and was paid) for two days that she required unpaid FMLA leave.   The following year, she exhausted her FMLA leave entitlement.  She then received and exhausted her lifetime of paid Short-term disability leave.  She then requested a reasonable accommodation for schedule flexibility and telework and was provided with the forms for her and her physician to complete.  Believing that it was a waste of time based on prior denial of accommodations, she did not complete or return the forms or exercise any appeal rights.  In July, she called off sick without sufficient sick leave, in violation of her Last Chance Agreement.  She was asked for a written explanation of her absence, but she refused to provide one.  A pre-termination hearing was held in November 2018, but she refused to attend and was fired the following month. She filed suit two years later.  

Although the claims were brought under the Rehabilitation Act, the Court applied standards from the  ADA.  She alleged that she was fired for absences that would not have occurred if her disability had been accommodated.  This disability discrimination claim required her to prove that she requested or proposed a reasonable accommodation.

But even if [she] satisfied the first four factors, the [employer] would not fail to provide the necessary accommodation merely by declining to provide one automatically at [her] request. Instead, [her] request for accommodation would mark the beginning of an “interactive process” to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations” that “requires communication and good-faith exploration of possible accommodations. . . .

Before the [employer] must accommodate, [she] needs to first provide “a proper diagnosis of her disability and requested specific accommodation.”  . . . If she instead “voluntarily withdraws from the interactive process based on [the employer’s] request for verification, [she] fails to show that the [employer] denied her requests for accommodations.”  . . . And if [she] fails “to provide requested medical documentation supporting an accommodation,” that “precludes a failure to accommodate claim.”  . . .

Here, when [she] requested an ADA accommodation, the [employer’s] ADA coordinator asked her to fill out paperwork to describe her requested accommodation and to show physician support for it. But [she] refused. She claims that her FMLA and short-term disability forms should suffice because they were “signed by her physician” and “precisely describ[e] the nature of her disability.” . . .

These documents, however, only support the FMLA leave and short-term disability leave [she] already received and exhausted, showing no physician support for the ADA accommodations she requested: “reasonable accommodation within [the] area of work schedule, flexibility, and teleworking.”  . . . This deficiency is not some “bureaucratic technicalit[y],”  . . ., or a bad-faith refusal by the [employer] “to participate in the interactive process,”  . . . . It is a critical failure by [the plaintiff employee] to carry her burden of providing the [employer] “with medical documentation supporting [her] accommodation[s’] necessity,”  . . . And this failure amounts to a voluntary withdrawal that precludes her claim that the [employer] failed to accommodate her.

The Court refused to blame the employer for the breakdown in the interactive process even though the plaintiff subjectively believed that it was stacked against her.  Even if she though that 1/6 of the ADA committee was biased against her, she had a right to appeal the denial of any accommodation.  “The [employer] did not cause a breakdown in the interactive process by establishing a process that [she] simply did not like.”

Because she did not file suit until December 5, 2020, the Court would only consider accommodation requests that she made within the prior two years.  However, all 13 of her alleged requests for reasonable accommodation were made more than 26 months earlier.  “She knew the [employer] was not accommodating her before she was terminated on December 3, 2018, so everything in her failure-to-accommodate claim occurred outside the limitations period.”

The Court refused to consider these alleged failures to be a continuing violation of the Rehabilitation Act.

[E]ven if, as [she] alleges, “the consequences of each additional denial are overlapping and cumulative,” . . . .  no activity persisted up to or past her termination date. At that point, she already knew of her injury. So the alleged failures to accommodate occurred outside the limitations period, and [her] federal failure-to-accommodate claim is time-barred.

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.

Applicant’s Record of Impairment and Illegal Interview Questions Send Charitable Employer Back to Court for Alleged Violations of Rehab

Last week, the Sixth Circuit Court of Appeals reversed summary judgment in favor of The Salvation Army by the District Court in Columbus where the plaintiff job applicant alleged that he was denied a job after he responded to a question his job interview about whether he was taking any medications by describing the psychotropic medications he was taking. Doe v. Salvation Army, No. 07-3822 (7/1/08). The Court found that there was a factual dispute for the jury to resolve about whether the plaintiff was “disabled” under the Rehabilitation Act and whether he was rejected for employment based solely on that disability.

According to the Court’s opinion, the plaintiff “suffers from paranoid schizophrenia disorder. From 1995 through 2005, because of his condition, he was hospitalized or lived in various group homes. In 2005, still under medical supervision, Doe began working with job developer Cordell DeGraw at the Center of Vocational Alternatives (COVA) in Columbus, Ohio. Sometime in May 2005, DeGraw contacted Charles Snider, the supervisor of the Salvation Army’s Adult Rehabilitation Center (ARC) warehouse and arranged for Doe to be interviewed for a truck driver position with the Salvation Army.” When the plaintiff “arrived for the interview, Snider instructed Doe to fill out an application and . . . Doe responded that he could not work on Fridays because, “[he] had to see [his] doctor, and . . . pick up [his] medicine.” Snider asked Doe “what kind of medication” he took, and Doe responded, “psychotropic medicine.” According to Doe, at that point, Snider “stopped the interview and said that his insurance would not cover me.” Doe offered to obtain a letter from his doctor, but Snider refused to reconsider.” According to the Salvation Army, “Snider testified that he ended the interview saying, “[w]hat I’ll have to do is have this checked out,” meaning apparently, that he wanted to determine whether the ARC’s insurance policy would cover a driver using psychotropic medication. However, Snider never pursued an investigation into the insurance coverage and later hired nine other drivers.”

The plaintiff argued that he was covered by the Rehabilitation Act because he was a person with a record of an impairment which limits a major life activity. “Doe submitted numerous doctor reports and evaluations to support his claim that he has a record-supported history of paranoid schizophrenia disorder, which caused substantial limitations to his major life activities of self-care, thinking, learning, and working.” While a person with only a record of a disability (in contrast to a present disability) would not require a reasonable accommodation, the Court determined that they were still protected from discrimination by the Rehabilitation Act.

The District Court determined that there was insufficient evidence that the Salvation Army was aware that Doe had a disability. However, the Court of Appeals noted that there was evidence that COVA informed the Salvation Army that “[w]e are an agency that works with people that have disabilities.” There was also evidence that the Salvation Army “was aware that COVA’s mission is to help individuals with disabilities and other challenges.

Nonetheless, the Rehabilitation Act only prohibits discrimination “solely” on the basis of the disability. “The Salvation Army argued, and the district court agreed, that Snider rejected Doe for safety concerns, not for reasons solely based on Doe’s disability. However, it was immediately after Doe revealed his specific medications that Snider abruptly ended the interview. Snider testified that he ended the interview stating, ‘I did not say flat out no,’ but rather, ‘I’ll have to check [the insurance] out.” As we now know, he did not do so.”

“An employer may not base a hiring decision on a perceived notion that the applicant’s disability renders him incapable to perform the job. See Holiday v. City of Chattanooga, 206 F.3d 637, 643 (6th Cir. 2000). The district court stated that “[c]ourts have unanimously held that an individual with a disability ‘cannot perform the essential functions of a job if his handicap poses a significant risk to those around him.’” But in May 2005, Snider ended Doe’s interview not because he concluded that Doe’s employment as a driver would pose a risk to others, but because Snider “wasn’t going to take a chance” on Doe. The Rehabilitation Act’s implementing regulations state rather remarkably, to be sure, that potential employers may not ask questions “to determine whether the applicant is an individual with handicaps or the nature or severity of a handicap.” 24 C.F.R. § 8.13(a). Snider testified that he inquired as to what types of medications Doe was taking. . . . We think it supports, although it does not necessarily prove, Doe’s claim that the Salvation Army violated the Rehabilitation Act.

Insomniacs may read the full decision at http://caselaw.lp.findlaw.com/data2/circs/6th/073822p.pdf.

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.