Sixth Circuit Finds Excellent Customer Service Requirements Doom ADA Claim

 

Last month, the Sixth Circuit affirmed an employer’s summary judgment on claims for disability discrimination and failure to accommodate when, after several options failed, it transferred the plaintiff delivery driver to an open overnight warehouse non-customer facing position after receiving repeated complaints about the plaintiff’s profane and racists outbursts caused by his disability.  Cooper v. Dolgencorp, LLC, No.  23-5397 (6^th Cir. Feb. 15, 2024).   The Court noted that the plaintiff stipulated that excellent customer service was an essential job function and that the plaintiff’s own physician indicated that he required an accommodation (i.e., a constant co-worker to handle the customer serving functions on his route).  The Court noted that “the ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts.” Further, the plaintiff could not identify any open delivery positions which did not require excellent customer service.   Finally, the Court rejected his constructive discharge claim because the employer tried most of his accommodation requests, including medical leave, a seasonal driver-helper and was not deliberately indifferent.  “Although “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge,” . . . that is not the case here.”

According to the Court’s opinion, the plaintiff delivery driver would regularly exhibit ticks and utter profane sexist and racist outbursts while delivery cola and setting up displays inside customer stores.  This lead to complaints about him from the customers and their customers and employees.   His job description required that he provide excellent customer service.   The plaintiff was granted several medical leaves to adjust his medication and to attempt different therapies.  He was also provided with a seasonal helper who could handle the customer-facing roles, but there were still complaints.  His physician indicated that he required a helper in order to perform his customer-facing duties.  Although the plaintiff requested to be transferred to other routes without customer facing duties, there were no vacancies in those routes and one had changed from non-customer facing to customer facing.  As a result, he was offered a vacant overnight warehouse position (with a cut in pay) where he would not have to interact and offend customers.   After working there for a few months, he resigned -- indicating that there were no hard feelings -- because he found another delivery driver job with customer-facing duties where the customers were not offended.    He then filed suit alleging that his warehouse transfer was discriminatory, that he could perform his job without a reasonable accommodation, and that he was constructively discharged. 

The Court agreed that excellent customer service was an essential job function.  First, it was noted in his job description.  Second, the plaintiff stipulated that excellent customer service was an essential job function.

A reasonable jury could not find that [the plaintiff] could provide excellent customer service to [the employer’s] customers in his role as a delivery merchandiser without an accommodation. Of particular importance, [his] own doctor noted that [he] needed an accommodation to perform his job duties. When a plaintiff’s own doctor—not merely the defendant employer— concludes that the plaintiff cannot perform his job without an accommodation, the plaintiff likely cannot establish that he is otherwise qualified to perform the job without an accommodation .  . .  [His] disability, moreover, caused him to vocalize racist and profane words in the presence of others in the stores of [the employer’s] customers. At various times during his employment, [its] customers complained about the language he used while delivering [its]  products. In fact, [he] acknowledges many of the customer complaints made against him in his amended complaint.

His need for a reasonable accommodation was further demonstrated by the medical leaves that he took and his request for a helper to handle the customer-facing aspects of his duties.

The Court rejected his argument that his comments were generally indecipherable because enough of them had been understood by complaining customers.  The Court also rejected his argument that his involuntary sexist and racist comments were not frequent enough to justify the transfer, thus creating

 

a factual dispute remains about the number of complaints customers made against him. It is undisputed, however, that [he] offended [the employer’s] customers at least twice with his use of racist and profane language, and the ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts. The specific number of complaints made against [him] is also immaterial because [he] contends that his verbal tics using inappropriate language remained consistent throughout his employment.

The Court also rejected his failure to accommodate claim. The plaintiff failed to identify any open delivery routes without customer facing duties.  While he contended that the Dollywood route had been non-customer facing when he previously drove it, he produced no evidence to dispute that the customer’s system had since changed, making it also a customer-facing route.

“Where the requested accommodation is a job transfer, ‘employers have a duty to locate suitable positions for’ employees with disabilities.”  . . . Still, “this duty does not require employers ‘to create new jobs [or] displace existing employees from their positions . . . to accommodate a disabled individual.’”  . . .  Nor does a reasonable accommodation require employers to eliminate or reallocate an essential job function.  . . . A “reasonable accommodation” under the ADA can include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).

                         . . . .

However, “[a]n employer may reassign an employee to a lower grade and paid position if the employee cannot be accommodated in the current position and a comparable position is not available.”  . . .. And as we explained above, [he] could not perform the delivery merchandiser position without an accommodation, and he failed to propose an objectively reasonable accommodation. Thus, [the employer’s] accommodation, via transfer to a warehouse position, was reasonable.

Finally, the Court rejected his constructive discharge claim.

To establish a claim for constructive discharge, a plaintiff must prove: (1) the employer deliberately created working conditions that a reasonable person would perceive as intolerable, (2) the employer did so to force the employee to quit, and (3) the employee quit.  . . . . Constructive[1]discharge claims require courts to examine “both the employer’s intent and the employee’s objective feelings.”  . . .  [His] claim fails at the second element—he cannot show that [his employer] deliberately created intolerable working conditions with the intention of forcing him to quit.

Each time [he] requested an accommodation from [his employer], the company provided one. For example, after the incident at the Dollar General store in early 2018, [it] adjusted [his] route so that he would not have to service Dollar General stores. And after Cooper submitted a request to be put on a truck with another driver in August 2018, [it] temporarily allowed him to work as a driver helper. Although “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge,”  . . . that is not the case here.

In fact, [he] admits [it] provided him with the warehouse position as an accommodation. Of course, he preferred a different accommodation. But the evidence demonstrates that [it] offered [him] a vacant position that was as close as [it] could get to his delivery merchandiser job. What is more, [he] admitted that when he resigned, he told his supervisor that he held nothing against [the employer].

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 Blames Employee for Failure of Interactive Process When Employer Could Reasonably Infer Request to Change Supervision

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 (6^th 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.

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.

Sixth Circuit Revives ADA Claims

Yesterday, the Sixth Circuit reversed an employer’s summary judgment in an ADA failure-to-accommodate/constructive discharge/retaliation dispute where the employer allegedly had a policy of never accommodating non-work related disabilities (i.e., chronic conditions or off-work injuries) and apparently never requested the employee to produce updated medical documentation of her need for her requested accommodation before denying the requested accommodations.  Morrissey v. Laurel Health Care Co., No. 18-1704 (6^th Cir. 2019).  The Court also rejected a “de minimis” exception to failure-to-accommodate claims where the employer only twice rejected the employee’s allegedly requested accommodation before she quit.  The Court also reversed dismissal of her constructive discharge and retaliation claims on the grounds that she produced enough evidence of a factual dispute to show a jury.  Importantly, the most recent medical statements provided by the employee to the employer indicated that she had no medical restrictions, but the employer also failed to require her to provide updated medical restrictions when she allegedly again raised the issue.  Rather, the employer seemed to deny that she ever made the requested accommodations.


The Background.

According to the Court’s opinion, a long-time employee produced three medical statements in 2012 indicating that she could not work more than 12 consecutive hours per day and the last such statement indicated that the restriction was only in place until her next appointment.  No other medical documentation was provided by the employee or apparently requested by the employer. Following her 2015 carpal tunnel surgery, she was released to work without any medical restrictions, but the employee alleges that she told the employer that her former 12-hour work restriction remained.   (The court found the existence of the 12-hour medical restriction to be a factual dispute because the plaintiff argued that it continued to the present and the employer argued that it expired no later than March 2012 or August 2015).  Several witnesses and documents indicate that in February 2012, the employer announced a policy of no longer accommodating non-work related medical restrictions, but the employer denied this.


In December 2015, the employer implemented 12-hour shifts in most of its units.  The plaintiff alleged that she requested to transfer into positions where she would work no more than 8 hours/shift, but claims that she was denied.  The employer denies that she made any such request and points out that she had seniority to transfer into 8-hour positions.   Nonetheless, the Court agreed that there was no indication prior to January 30, 2016 that that she had ever been required to work more than 12 hours because at worse she clocked out within 15 minutes of the end of a 12 hour shift on only 8 different occasions.


She contacted the EEOC and corporate on February 1 after she was – for the first time—required to work 13.5 hours on January 30 over her alleged protest about her alleged 12-hour medical restriction.   The manager allegedly told her that she knew nothing about any medical restrictions in her file and had “no control” over the scheduling.  However, when the employer’s corporate officer returned her call, she did not call him back.  There is no discussion about any failure of the interactive process by her refusal to return this call.  Four days later, the plaintiff was required to work a 16 hour shift (even though it was alleged not her turn on the mandatory overtime rotation list) and, when her protest about her alleged medical restriction was allegedly ignored, she quit.


Court’s Analysis

Failure to provide a requested accommodation constitutes direct evidence of discrimination under the ADA, but the trial court analyzed the claim under an indirect burden of proof.   The trial court also analyzed the existence of a disability under pre-ADAA law by requiring the plaintiff to provide a specific diagnosis and disputing that an inability to work overtime was a disability.   The Court found that the alleged medical restrictions on the plaintiff’s ability to walk, stand, bend, etc. was sufficient to satisfy her burden of proving that she was disabled without her also having to prove that she was limited in her ability to work.  

Moreover, she did not have to tell [the employer] about her specific diagnoses.  Morrissey told [the employer] that she could not work more than twelve-hours per shift because she suffered from a disability as defined by the ADA.  That was enough.

Although hindsight is 20/20, the plaintiff in this case did have plenty of medical records supporting her claimed disability if she had ever been asked for medical documentation and, as previously indicated, the Court found it to be a factual issue for the jury whether the employer was sufficiently put on notice of this by her requests for an accommodation and the two medical statements indicating that she had no medical restrictions.   In any event, the medical and other evidence satisfied the plaintiff’s burden of proving at the summary judgment stage that she had a disability so that the jury could resolve any disputed issues of fact.


The Court also found sufficient evidence to show that she had a record of a disability based on her allegations of frequently raising the 12-hour work restriction and the employer’s previous accommodation of that restriction before 2012.  It also found sufficient evidence that she was regarded as disabled because she was allegedly constructively discharged when the employer refused to accommodate her alleged medical restriction. This makes no sense to me under the facts as explained in the Court’s decision, but there it is.


The Court also found sufficient evidence to get to a jury about whether the employer failed to provide a reasonable accommodation.  As mentioned, there is the dispute about two medical statements, so the Court did not issue judgment in favor of the plaintiff.   Importantly, the plaintiff produced evidence about the employer’s (disputed) policy and practice of refusing to accommodate non-work related injuries or chronic medical conditions, the (disputed) refusal to transfer her into an 8-hour position, and the employer requiring her on two occasions within one week to work beyond her alleged medical restrictions.

The record shows that Morrissey asked [the employer] for an accommodation due to her disability, and [it] did not accommodate her.  She was not required to establish anything more for her claim to ripen. . . . This satisfies Morrisey’s burden under the direct evidence test applicable to a claim of failure to accommodate.

The Court rejected the trial court’s ruling that the employer’s actions were de minimis and did not constitute an actionable employment action:

First, however, the de minimis standard arises in the context of an adverse employment action, not a failure to accommodate.  Compare Arndt, 716 F. App’x at 527 with Bowman v. Shawnee State Univ., 220 F.3d 456, 462 (6th Cir. 2000).  Second, and more importantly, under the district court’s logic, an employer would be free to contravene a disabled employee’s restrictions a certain number of times or with an unspecified amount of regularity before the employer is liable.  Such a rule would be not only cruel, but it would also contravene our previous precedent and the ADA.

There was no discussion in the Court’s decision about the failure of the interactive process, which is interesting.  Employers who have prevailed on such claims in other cases were able to point to the employee’s failure to cooperate with permissible medical inquiries or to consider alternative accommodations, etc.


The Court also remanded the constructive discharge claim for the same reasons: “For the reasons described above, a dispute of material fact remains over whether Morrisey is disabled.  This claim is properly analyzed under the direct evidence test because Morrisey’s constructive discharge was premised on [the employer’s] failure to accommodate her.” A constructive discharge claim “requires a finding that ‘working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’”

In Talley, we stated that “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.’”   . . .  This case presents precisely that scenario.  Morrissey informed Coldwater numerous times of her twelve-hour restriction from 2012-2016, but Coldwater mandated Morrissey to work 13.5 hours on January 31, 2016.  When Morrissey told her manager that she had a disability that prevented her from working beyond twelve-hours, the manager told Morrissey that she had “no control” over the situation.  Five days later, Morrissey was informed that she was being mandated to work sixteen hours, even after Morrissey, again, told her supervisor that she was under a medical restriction.  When she complained to Hayes, Hayes stated there was nothing she could do.  In the face of Coldwater’s repeated failures to honor Morrissey’s accommodation requests, a reasonable plaintiff in her position would have felt compelled to resign.  Because Morrissey has shown that a reasonable juror could have found that she was constructively discharged, she has satisfied the adverse employment element.  Her claim for disability discrimination proceeds to trial.

The Court rejected the employer’s argument that its purported policy of accommodating only work-related injuries was legal: The employer “cannot refuse to provide Morrisey with a reasonable accommodation and then conclude that she is not qualified for her position because she cannot meet her job’s requirements without an accommodation.”


Finally, the Court reversed the dismissal of the retaliation claim on the basis that she satisfied her burden of showing constructive discharge, which can constitute an adverse employment action.  Her allegedly repeated requests for a 12-hour shift restriction constituted protected conduct under the ADA.   While the Court did not hold that every failure to accommodate will also constitute retaliation, the plaintiff satisfied her burden of showing retaliatory motive in this case because the assignment that she work 16 hours on her final shift was made out of order when another employee was allegedly due to be assigned mandatory overtime before her on the alleged overtime rotation list.  (The employer denied the existence of any list).


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 Reminds Employees that Unfairness is not the Same as Discrimination

Last month, the Sixth Circuit affirmed the dismissal of Title VII discrimination and constructive discharge claims even though the plaintiff was treated unfairly because she could not show that she had been treated differently than a comparable male.  Gosbin v. Jefferson County Commissioners, No. 17-3441  (2/23/18).   The plaintiff had been publicly reprimanded and suspended for “insubordination” even though she had never been explicitly told to take a particular course of action.   The employer’s law firm had also been told to cease working with her or telling her why.  Realizing that she might be fired, she resigned and was replaced almost a year later by a male subordinate who lacked her qualifications.   While the Court agreed that she may have been treated unfairly, that unfairness was not discriminatory in the absence of evidence that she was treated differently than a comparable male.   Her efforts to compare herself to her male predecessor and successor were futile because the employer was unaware of the predecessor’s adoption of the challenged practice and he was paid more than her because he possessed additional professional licenses and responsibilities.  Her successor actually resolved the employer’s concerns taking bids for the hauling work and paying the lowest bidder.  Without a more favorable comparator, she could not prove her prima facie case.  In any event, while she may not have been technically insubordinate in the absence of a specific directive, the employer was still entitled to the honest belief defense because for two months she had continued a practice that they had informed her was legally inappropriate and needed to be corrected by placing the matter out for competitive bidding.

According to the Court’s opinion, the plaintiff had been promoted to department director in 2010 shortly after the long-time director retired.  A few years later, following a complaint and her investigation, the board of county commissioners learned that her predecessor had a verbal hand-shake deal with a local hauler to dump  septic waste at the sewage treatment plant at half-price in return for cleaning up emergency septic spills throughout the county.  While this might be acceptable in the private sector, public sector contracts must be bid so that everyone can compete for the business and opportunities.  She was directed to put the work and opportunities out for public bid.  While she took a few steps towards doing so, she did not discontinue the private arrangement or actually put the emergency septic work out for bid.  Upon learning this two months later, the Board explicitly directed her to cease permitting any haulers to dump until they had approved a policy.   She explained that she thought that they had merely directed her to put the arrangement out for bid, but until the bidding process was complete, that they current arrangement could continue.  Nonetheless, she terminated the arrangement the next day.   The Board then suspended her for 30 days for insubordination.  Following her suspension, her male subordinate took bids for the emergency septic work, and then paid the lowest bidder – the same company as before – for the work instead of letting him dump at half price.  The Board then directed its law firm to cease working with her and not tell her why.    The plaintiff resigned a few months later, was replaced by her male subordinate almost a year later, and brought suit for discrimination and constructive discharge.

The Court initially observed that the employee could not prove a prima facie case of discrimination because she could not identify any comparable male employees who were treated better than her.

In the end, whether deserved or not, there is no proof that the suspension was based on Plaintiff’s gender . . .  Plaintiff must show that the adverse action was not simply unfair, but a pretext for discrimination.  Absent any comparators, the only other evidence is [Commissioner] Gentile’s comment in early 2010 denying that he wanted Plaintiff out of management and his subsequent explanation that “it’s not because you’re a woman.”  But an isolated stray comment, three and one-half years before she was suspended, does not create an inference of discrimination. . . .

Even if Plaintiff had made out a prima facie case,  she has not shown that the Board’s reason for suspending her had no basis in fact, was not the actual reason, or was insufficient to explain the Board’s action.   . . .  Although the Commissioners did not issue a direct “cease and desist” order, they clearly asked Plaintiff to begin a public bidding process to replace the unbid hauling arrangement tout de suite; thus they had an “an honest belief” that Plaintiff did not follow their orders.

The Court also rejected the constructive discharge claim on the grounds that she could not prove any hostility was related to her gender and because the public reprimand and suspension were an insufficient basis for 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 be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Reversed Columbus Employer’s Summary Judgment on Employment Discrimination Claim, But Affirmed Dismissal of Constructive Discharge Claim.

Earlier this month, the Sixth Circuit reversed a Columbus employer’s summary judgment on an employment discrimination claim, but affirmed dismissal of the plaintiff’s constructive discharge claim.   Henry v. Abbott Laboratories, No. 15-4165 (6^th Cir. 6-10-16). The plaintiff alleged that she had been denied the opportunity for promotion and was retaliated against when she protested and ultimately filed an OCRC Charge.  The Court concluded that she could rely on similarly situated employees (who had similar qualifications and much less tenure) who reported to different supervisors to show both discrimination and pretext.   The Court also agreed that she could prove that she suffered increased scrutiny and adverse employment actions (through negative performance evaluations and performance plans) after she filed her Charge which could be attributed to her protected activity, but denied that her subjective belief that she was being forced to resign was sufficient to show constructive discharge without evidence that the employer deliberately created intolerable working conditions with the intention of forcing her to quit. 

The plaintiff had worked as a customer service representative since 1999 and in 2008 and 2009, she received “achieved expectations” evaluations.  To be promoted, she needed that level of annual evaluation, one year of experience and a favorable “readiness” rating by the quality assurance staff.  The last time she had been evaluated by the QA staff was in 2006 and it had not been favorable.  However, her supervisor did not survey the QA staff after her performance evaluations improved or refer her for additional training to make her eligible for promotion.  When the plaintiff inquired about her being overlooked for promotion, her supervisor told her that tenure was not important.   The plaintiff complained to HR in April 2010 when other new employees were then promoted instead of her.  When HR did not respond within the week, she filed an OCRC Charge in May, alleging employment discrimination.

HR questioned about her promotability and competence surveys were sent to the QA staff outside the regular schedule a month after the OCRC Charge had been received.  They were not favorable and were shared with the plaintiff.   The plaintiff rejected the feedback, so a quality coordinator was assigned to sit with her more frequently than normal in June.  Her scores plummeted and she complained to HR that she was being harassed.   Later that year, she had trouble acclimating to the adoption of SalesForce and made a significant security error in November, which resulted in her being placed on a two week disciplinary suspension.  There was a discussion about putting her on a performance improvement plan, but her managers were concerned that this would appear retaliatory.  Instead, they gave her a poor performance evaluation (which made her ineligible for promotion) in early 2011 and gave her scores which were depressed considering her objective statistics (because the latter months had been given greater weight than her earlier months).

The OCRC found probable cause of discrimination in April 2011 because she had been passed over for promotion in favor of co-workers outside her protected class with similar performance evaluations who had much less experience and tenure.   The next day, a manager said that he wanted to take the next step with her, but felt paralyzed.  Instead, two months later she was placed on a 60-day performance improvement plan.  The plaintiff took a two month stress leave of absence and announced her retirement upon her return because she felt that she was being forced to resign.  She then filed suit.  The district court ruled against her on all claims.  The Sixth Circuit reversed on the discrimination and retaliation claims, but affirmed denial of the constructive discharge claims.

While she had not received a favorable survey result from the QA staff (which was a requirement for being promoted),  no survey had been sought when she started receiving favorable performance evaluations.  This meant that the survey could not be a disqualifying reason.  Moreover, not every employee who had been promoted had been the subject of the survey.    When a survey was finally sought on her performance, it was done outside of cycle, which made it suspicious to the staff and was ignored by some of them.   The Court also concluded that she was permitted to compare herself to employees with different supervisors because they were similar in relevant respects and their supervisors reported to the same manager.

The Court also found sufficient evidence of pretext without slurs or other negative comments about her protected class.   She pointed out that no one in her protected class had been promoted since 2002.  Also, the explanations about her performance seemed pretextual because they directly contradicted the favorable comments written in her performance evaluations.   She clearly met the objective criteria to be promoted and management could not identify any employees who had met the objective criteria (i.e., performance scores) and had NOT been promoted (even though some of them had not worked there for even a year).    The employees who had been promoted did not have markedly supervisor qualifications which could also have explained the discrepancy.   A jury need not accept a subjective evaluation of the plaintiff’s performance to find pretext.

As for her retaliation claim, the Court found that the increased scrutiny of her performance within a month of receiving her OCRC Charge, poor performance evaluation eight months later (which rendered her ineligible for promotion), a performance improvement plan two months after a probable cause finding from the OCRC and being kept on the training line would dissuade a reasonable person from exercising her protected rights.  Multiple incidents over a year’s period can combine to form a materially adverse employment action. “A reasonable jury could also find that the other actions, although occurring later in time, also would not have occurred in the absence of Henry’s protected activity.”   It did not help the employer that the HR notes indicate that several managers were advocating for poor performance evaluations and concern about the OCRC Charge. Indeed, the day after the OCRC finding was received, a “note in an employee relations file” stated that they planned to wait “a reasonable amount of time” before “plac[ing] her on a formal coaching plan.”  This could reflect a pre-determined scheme to discipline her regardless of her actual job performance.  While the employer argued that her falling performance scores justified her rating, the jury could also attribute her falling scores to the increased scrutiny as a result of the OCRC Charge.   Indeed, her 2010 evaluation was markedly below her evaluations from 2003 through 2009, which, again, could be inferred was the result of retaliation instead of her actual job performance.

 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Reverses Employer’s ADA and FMLA Summary Judgments

Earlier this week, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment on ADA and FMLA claims and made several notable holdings. Hurtt v. International Services, Inc., No. 14-1824 (6^th Cir. 9-14-15).   First, the Court reiterated that a constructive discharge could constitute an actionable adverse employment action for discrimination and retaliation claims.  Second, an employee whose commission draw and pre-paid expenses are revoked and issued a $22,000 invoice for prior draws could feel his working conditions had become intolerable so as to be constructively discharged.  Third, refusing to discuss an employee’s request to receive eight-hours of sleep per night – especially after being supported with a medical opinion -- could violate the ADA.  Finally, a constructive discharge could constitute FMLA interference even though the employer never overtly denied the employee’s request for FMLA leave.

According to the Court’s opinion, the plaintiff was a commissioned salesperson.  Following his resignation, he was convinced to return to work by the promise of a $70,000/year forgivable draw, a four-day work week, a $40/day per diem and pre-paid travel expenses.    However, the employer later denied that the draw was to be forgivable and the four-day work week never materialized.  The plaintiff claimed to only be permitted a few hours of sleep each night because of his travel schedule.  The plaintiff then submitted a doctor’s note in March noting, among other things, mental fatigue and recommended time off from traveling and sleep hygiene. The employer did not address his repeated requests for more sleep time and need for a four-day work week or the physician’s note.  On September 1, his therapist faxed the employer a note about his acute anxiety and depression, that he would be off work until September 5 and that he would require additional time off in the future under the FMLA.  On September 4, the plaintiff submitted an FMLA request for time off when his anxiety or depression flared up.  The employer responded the next day by terminating his draw retroactive to September 1, reinstated his commissioned pay plan, terminated his pre-paid travel expenses and requested that he repay the $22,752 already advanced to him through his draw.  The plaintiff indicated that he could not work under the new conditions and requested that his former compensation arrangements be reinstated.  In the meantime, the employer processed his FMLA request and sent a medical certification form to his medical provider.  On September 18, the plaintiff’s attorney notified the employer that he would not be returning to work and the proceedings were commenced.

The trial court had dismissed the plaintiff’s ADA discrimination allegation on the grounds that a constructive discharge could not constitute an adverse employment action (which is necessary to establish a prima facie case). The Court noted that this was not a proper analysis of the law.  “Thus, although already well established, we hold once more today that a plaintiff may use a constructive discharge claim to show that he or she has suffered an adverse employment action.”

In addition, the Court found that the plaintiff had produced sufficient evidence to show that he had been constructively discharged.   

To demonstrate a constructive discharge, the plaintiff must show that (1) the employer deliberately created intolerable working conditions, as perceived by a reasonable person; (2) the employer did so with the intention of forcing the employee to quit; and (3) the employee actually quit. . . .

 . . .“[w]hether a reasonable person would have [felt] compelled to resign depends on the facts of each case[,]” but we consider several factors, including but not limited to, “reduction in salary” and “badgering, harassment, or humiliation by the employer calculated to encourage the employee’s resignation.” . . .

                . . . Further, in analyzing the second prong, we have held that “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.”

The Court found that a reasonable person would have found continued employment intolerable and felt compelled to resign by having his draw and pre-paid expenses terminated retroactively to his first date of medical leave and being put back on a commissioned pay plan. It was not difficult to find that the employer was attempting to force his resignation because he had already resigned before over the commissioned pay plan and only returned when promised a draw and the employer had refused to acknowledge or discuss his repeated requests for more sleep.  Accordingly, the Court found that the plaintiff’s disability discrimination claim should gone to a jury.

The Court also found that the plaintiff had stated actionable claims for retaliation.  His repeated requests for a reasonable accommodation (i.e., more sleep) and for FMLA leave constituted protected activity.  The Court rejected the employer’s contention that it had never been put on notice that he had a disability.  “But, the pertinent inquiry here is not whether Hurtt proved he had a disability under the ADA, or whether ISI had specific knowledge of Hurtt’s alleged disability, but rather, whether Hurtt showed a good-faith request for reasonable accommodations.”  

As a whole, these acts are sufficient, good-faith requests for accommodations. [The employee's] verbal requests initially notified [the employer] that he sought sleep accommodations during his travels. And while Dr. Littles’ document did not explicitly request an accommodation, it specifically corroborated [his] verbal requests that he be given sufficient time to sleep during his travels to accommodate his medical conditions. Furthermore, Dr. Sharnowski’s letter and [his] FMLA leave request notified [the employer] that he sought accommodation in the form of time off from work. Accordingly, we conclude that [the plaintiff] has put forth sufficient evidence to show that he engaged in protected activity as required under a claim for retaliation under the ADA.

His constructive discharge was sufficient evidence of an adverse employment action to support his retaliation claim. “To be adverse, a retaliatory action must be enough to dissuade a reasonable person from engaging in the protected activity. . . .”  

Although the employer never denied the plaintiff’s FMLA request or demanded that he return to work, its constructive discharge of him could be construed as discouraging an employee from taking FMLA leave and, thus, constitute an actionable FMLA interference claim.  

Contrary to [the employer's] assertions, the fact that [it] did not literally interfere with [his] FMLA leave (i.e., by denying it, requesting he report to work, or complete work-related tasks) does not impede [the plaintiff's] claim of FMLA interference. By engaging in an act that would discourage [him] from using his FMLA leave, [the employer] could be liable under a claim for FMLA interference.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Finds Employee Was Denied Reasonable Accommodation, but Not Constructively Discharged

Last month, the Sixth Circuit reversed summary judgment for an employer on an ADA claim, but affirmed summary judgment on sex discrimination and constructive discharge claims.   Gleed v. AT&T Mobility Services, No. 14-2088 (6^th Cir. 6-4-15).   After the employer denied the plaintiff a reasonable accommodation that it provided for a pregnant employee and denied him a schedule adjustment for necessary medical care, the employee quit and sued.   The Court found that permitting the employee to sit when necessary was a reasonable accommodation, particularly when the employer permitted other employees to do so and it would allow him to work without pain.  Also, the employer could not insist on the employee utilizing its particular ADA process without proof that the employee was informed about it.   The employee’s request for a schedule change was likely reasonable as well, but the employee was at fault for the failure of the interactive process when he quit after his schedule request was denied instead of informing the employer that its suggestion – that he take unpaid leave and then apply for backpay – was unacceptable.   The Court also held that the denial of reasonable accommodations did not render his working conditions intolerable so as to render his resignation a constructive discharge.  Finally, the Court affirmed dismissal of the sex discrimination claim on the basis that he suffered no adverse employment action since his working conditions never changed.

According to the Court’s opinion, the employee suffered from a chronic skin infection which became worse when he stood for prolonged periods.   After he was transferred to a new store without desks, he was required to stand for long periods during his shift.  He brought a medical note to his manager requesting him to sit as needed, as a pregnant co-worker was permitted.  His request was refused because he was not pregnant. Seven months later, he developed a life-threatening infection which required daily IV antibiotic treatments.  He requested to change his work schedule so that he would not miss work for his medical treatment, but his manager denied his request.  He then called Human Resources to ask about his options, but was told that his only option was to take unpaid leave and then seek back pay.  He never specifically suggested adjusting his schedule.  When his doctor told him that he could die without the medical treatments, he resigned the next day and brought suit.

On appeal, the Court found that letting the plaintiff sit on a stool during his shift seemed reasonable since it would alleviate his pain and decrease his risk of another skin infection. The only argument which the employer raised was that the accommodation was not necessary because the plaintiff was physically capable of performing his job, even if he was in pain and risked his health.  In short, it argued that if the plaintiff “was physically capable of doing his job—no matter the pain or risk to his health—then it had no obligation to provide him with any accommodation, reasonable or not.”   The Court concluded that the ADA requires employers to provide disabled employees with similar benefits as non-disabled employees – i.e., the ability to work without pain.  “29 C.F.R. § 1630.2(o)(1)(iii). Here, taking the evidence in the light most favorable to [the plaintiff], he needed a chair to work—as other employees do—without great pain and a heightened risk of infection.” 

The employer then argued that the plaintiff never properly requested an accommodation.  Under it policy, employees are first to submit requests to their supervisors and then to call the HR Service Center.   However, the plaintiff only asked his supervisor about the stool and not HR or the  Service Center.  The Court rejected this argument because the plaintiff testified that he never saw this policy and the employer could not prove otherwise.  

The Court rejected the plaintiff’s claim concerning the denial of his schedule adjustment to receive necessary medical care because he quit the ADA interactive process too soon.  The ADA requires both parties to participate in good faith to resolve the ADA issues. “If the process “fails to lead to [a] reasonable accommodation,” then “responsibility will lie with the party that caused the breakdown.”  In this case, the plaintiff never informed the employer that its proposal – to take unpaid leave and apply for backpay – was unacceptable.  Instead, he resigned the next day.  Because the plaintiff caused the ADA process to break down over this request, his claim was denied.  

The Court next denied his sex discrimination claim, which challenged the denial of his stool request when it was provided to a pregnant employee.  The Court found that only materially adverse employment actions were actionable and the plaintiff had failed to identify any material adverse changes in his employment.   The employer’s denial of his request to sit on a stool did not change his working conditions and, therefore, was not actionable.   (I have to wonder how this argument works when an employee is denied a promotion or a raise or a transfer . . . . . ).  

Finally, the Court rejected the constructive discharge claim because the denial of his accommodation requests did not render his working conditions objectively intolerable.  

But the denial of an accommodation, by itself, is not sufficient to prove that an employer constructively discharged an employee. . . . . And [the plaintiff] points to nothing else in the record that suggests [his supervisor’s] real purpose in denying [the plaintiff’s] requests was to force [him] to resign  . . . Thus, no reasonable jury could find that [the employer] intended to force him to quit, and summary judgment was therefore proper on this claim too.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.