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 (6th 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.
