On Friday, a
divided en banc Sixth Circuit
affirmed an employer’s summary judgment in an ADA case where the employee
sought permission to work from home on an as needed basis as a reasonable
accommodation under the ADA. EEOC v. Ford
Motor Co., No. 12-2484 (6th
Cir. 4-10-15). In doing so, the Court rejected
an earlier 2014 decision by a divided Sixth Circuit panel (which was reported here)
that had granted summary judgment to the EEOC and found that physical
attendance at a job site was no longer generally an essential job function. The Court found that while the ADA requires
employers to provide reasonable accommodations, “it does not endow all disabled persons
with a job—or job schedule—of their choosing.” Relying on prior case law, ADA
regulations, EEOC informal guidance, and common sense, the Court concluded that
“[r]egular,
in-person attendance is an essential function—and a prerequisite to essential
functions—of most jobs, especially the interactive ones.” Moreover,
the Court found that an employer need not engage in the interactive ADA
accommodation process when the employee is unqualified for the job. The Court also rejected the Plaintiff’s
retaliation claim in very strong language.
Five judges dissented.
Background.
According to the
Court’s opinion, the plaintiff’s job required her to regularly meet
face-to-face with other company employees, although she could communicate on
some issues by telephone and email.
However, her position required her to work in the same building as
certain other jobs so that they could meet “on a moment’s notice” when needed,
which the employer found to be the most effective form of communication for
that position. Hired six years earlier,
the plaintiff performed very well her first few years, but her performance evaluations
steadily declined beginning in the fourth year until in 2009, she was not meeting
the basic functions of her position. She
was informed that she” lacked interpersonal skills, delivered
work late, didn’t show a concern for quality, and failed to properly
communicate with the suppliers. She again ranked in the bottom 10% of her
peers.” In 2008, she missed 1.5
days/week and in 2009, she was absent more than she was present. “And when she
didn’t miss work, she would often come in late and leave early.” As is typical in these situations, everyone
around her was frustrated:
When she missed work, her teammates had to pick up the slack,
including by taking on the functions that [the Plaintiff] could not perform at
home. Her supervisors also had to assume her job responsibilities. Her absences
caused the resale-buyer team “stress and frustration,” . . . further
compounded [her] mistakes, and frustrated suppliers.
The Plaintiff’s chronic irritable bowel syndrome contributed
to this situation since she could suffer an uncontrollable episode at work or
while driving (an hour each way) to and from work. The employer attempted to help her on several
occasions. Her first supervisor
adjusted her work schedule to 4 ten-hour days and allowed her to telecommute on
a trial basis as needed for two months.
However, the Plaintiff was unable to establish regular and predictable
attendance and perform the core functions of her job. A new supervisor also attempted another trial
telecommuting experiment, which also failed. Nonetheless, the Plaintiff sought to
telecommute four days/week, which had been permitted for other positions at the
Company. However, the Company only
permitted her co-workers to telecommute one day each week, not four as
requested by the Plaintiff. When
reviewing her core job responsibilities with her while considering her
telecommuting request, the Plaintiff
admitted that she could not perform four of the [ten tasks]
from home, including meetings with suppliers, making price quotes to stampers,
and attending some required internal meetings. [She] added, however, that she
did not envision needing to stay home four days per week, only that she wanted
the freedom of “up to 4
days.”
Her request was rejected on the grounds that four of the ten
tasks could not be performed at all from home, four other tasks could not be
performed effectively from home and the remaining two tasks were not
significant enough to support telecommuting.
Although the employer rejected that specific accommodation request, it
offered other accommodations, including placing her office closer to a restroom
or transferring her into a job which would allow her to telecommute. She rejected those offered accommodations, failed
to identify any other potential solutions, and filed a Charge of Discrimination
with the EEOC.
The Plaintiff’s job performance did not improve and she
again ranked in the bottom 10% of her peers for the second year in a row. Although
she claimed the evaluation was retaliatory, she did not elaborate and was
placed on a performance improvement plan. After she still failed to complete tasks
completely or on time during the plan period, she was terminated. She filed a retaliation Charge and this
litigation ensued two years later.
ADA Reasonable Accommodation Claim. In affirming the employer’s summary judgment, the Court reviewed some
basic ADA requirements. Although an
employer is required to provide a reasonable accommodation (which can include
job restructuring or modified work schedules), an employer is not required to
remove essential job functions. “[T]hat is per se
unreasonable.”
In addition, “the essential-job-function
inquiry does not require employers to lower their standards by altering a job’s
essential functions.” Moreover, “[t]he employee
bears
the burden of proposing an accommodation that will permit her to effectively
perform the essential functions of her job.”
In this case, the Court agreed that “regular and predictable
on-site job attendance [is] an essential function.” The Court observed that most courts have “establish[ed]
a general rule that, with few exceptions, “an employee who does not come to
work cannot perform any of his job functions, essential or otherwise. . . . And
for good reason: ‘most jobs require the kind of teamwork, personal interaction,
and supervision that simply cannot be had in a home office situation.’” The Court also cited and analyzed the EEOC’s
ADA regulations governing essential job functions and found that they supported
this conclusion.
To guide the essential-function inquiry, the regulations
speak in factors—seven of them. . . . In
many jobs, especially the interactive ones, all seven point toward finding
regular and predictable on-site attendance essential. Take the amount of time
performing that function, for example, § 1630.2(n)(3)(iii): Most of one’s work time is spent at work, and many
interactive functions simply cannot be performed off site. Or take the
consequences of failing to show up for work, § 1630.2(n)(3)(iv): They can be
severe. . . . Ditto for the terms of the
collective bargaining agreement, § 1630.2(n)(3)(v): They certainly won’t
typically exempt regular attendance. Other employees’ work practices are no
different, § 1630.2(n)(3)(vi)–(vii): Other employees usually attend work at the
worksite. And so on, such that most jobs
would be fundamentally
altered if regular and predictable on-site attendance is removed.
The Court also rejected the EEOC’s argument that permitting any telecommuting by a co-worker meant
that the employer had to grant unlimited
and unpredictable telecommuting to
the Plaintiff:
In addition to being legally and factually unsupported, the
EEOC’s view here would cause practical harm to private employers. The ADA
encourages—indeed, requires—employers to make reasonable accommodations for its
employees, including allowing telecommuting under the proper circumstances. 42
U.S.C. § 12111(9)(B). But if the EEOC’s position carries the day, once an
employer allows one person
the ability to telecommute on a limited
basis, it must allow all
people with a disability the right to telecommute on an unpredictable basis up
to 80% of the week (or else face trial). That’s 180-degrees backward. It
encourages—indeed, requires—employers to shut
down predictable and limited telecommuting as an accommodation for any employee. A “good
deed would effectively ratchet up liability,” which “would undermine Congress’
stated purpose of eradicating discrimination against disabled persons.” . . . The practical effect?
Companies would tighten telecommuting
policies to avoid liability, and countless employees who benefit from currently
generous telecommuting policies would suffer. A protective tool becomes a
weapon if used unwisely; and telecommuting should not become a weapon.
The Court also rejected the EEOC’s “charm[ing]” argument
that it was “self-evident” that technological advances had removed the
requirement of physical presence at the workplace. While this may be true of some jobs, the
evidence in this case did not show that.
But technology changing in the abstract is not technology changing on this record. . . .And no record evidence—none—shows that a
great technological shift has made this highly interactive job one that can be
effectively performed at home.
The
technologies used by the employer were the same technologies available when
other courts still found physical presence to typically be an essential job
function for most jobs. “These
technologies—email, computers, telephone, and limited video conferencing—were
equally available when courts around the country uniformly held that on-site
attendance is essential for interactive jobs.”
ADA
Interactive Process. The Court made
some surprising observations about the interactive process.
Our conclusion that [the Plaintiff] was unqualified for her
position makes it unnecessary to consider whether [the employer] showed bad
faith in the discussions to work out a reasonable accommodation while [she] was
still employed. Even if [the employer] did not put sufficient effort into the
“interactive process” of finding an accommodation, 29 C.F.R. § 1630.2(o)(3),
“that failure is actionable only if it prevents identification of an
appropriate accommodation for
a qualified individual.” . . .Courts thus need not consider
this form of nonindependent liability “if the employee fails to present
evidence sufficient to reach the jury on the question of whether she was able
to perform the essential functions of her job with an accommodation.” . . . It suffices here to hold that
any failure by [the employer] does not create liability because, as we just
concluded, the EEOC did not produce such evidence.
In any event, the employer did engage in the interactive
process by suggesting and experimenting with multiple possible accommodations.
Summary Judgment
Issues. The Court also made some
notable conclusions about burdens of proof at the summary judgment stage. For starters, the Court made the employee’s
opinion testimony about her own essential job functions practically irrelevant.
An employee’s unsupported testimony that she could perform
her job functions from home does not preclude summary judgment, for it does not
create a genuine dispute
of fact. Neither the statute nor regulations nor EEOC guidance instructs courts
to credit the employee’s opinion about what functions are essential. That’s
because we do not “allow employees to define the essential functions of their
positions based solely on their personal viewpoint and experience.” Mason, 357 F.3d at
1122. And for good reason: If we did, every failure-to-accommodate claim
involving essential functions would go to trial because all employees who request their employer
to exempt an essential function think
they can work without that essential function.
In any event, the Plaintiff’s testimony did not save her
case because she still admitted that she could not perform four of her
essential job functions from home, did not testify that she could “the vast
majority of” job functions as effectively from home as from the work site. Because the employer is not required to lower
its production standards as an accommodation and the past telecommuting
experiences with the Plaintiff had shown that this accommodation would not
work, the Plaintiff’s testimony was rejected by the Court.
The Court also rejected the Plaintiff’s testimony about her
subjective impression of regular meetings with her supervisor about her poor
attendance.
We “look at the facts as they appear to the person making the
decision to terminate [the employee],” not at “the employee’s subjective
[beliefs].” . . .Harris’s unexpressed “subjective
skepticism regarding the truth of” whether [her supervisor] was actually trying
to help her does not alone “raise a triable issue as to pretext.” . . .Plus, these kinds of meetings
do “not constitute harassment simply because they cause the employee distress.”
In contrast with the Plaintiff’s biased testimony, evidence
about the telecommuting schedules of plaintiff’s co-workers was relevant under
the ADA regulations and as evidence of the employer’s judgment. However, it was not helpful to the Plaintiff
because telecommuting had only been permitted by strong performers one set day
each week with the understanding that those co-workers still had to come to
work when needed.
None of this is to say that whatever the employer says is
essential necessarily becomes essential. . . . Suppose, for instance, that a
fire department regularly allows certain firefighters to refrain from driving
fire trucks. But then the department denies the same accommodation to a
firefighter with a known disability that prevents her from driving the trucks.
A genuine fact issue might exist as to whether driving a fire truck is actually essential—it
is contradicted by materially similar job practices. . . .Our
ruling does not, in other words, require blind deference to the employer’s
stated judgment. But it does
require granting summary judgment where an employer’s judgment as to
essential job functions—evidenced by the employer’s words, policies, and practices and taking into
account all relevant factors—is “job-related, uniformly-enforced, and
consistent with business necessity.”
Retaliation Claim. The Court also rejected the EEOC’s retaliation claim. "Discrimination
here means retaliation—that “but for” an employee’s statutorily protected activity the employer would not have taken the “adverse
employment action.” In this case, the
EEOC could not show that the employer’s explanation for terminating the
Plaintiff’s employment – her back-to-back poor performance evaluations and
failure to satisfy her performance improvement plan – was pretextual.
No reasonable jury could find that Ford terminated Harris for
a reason other than poor performance. Harris’s performance and interpersonal
issues have been well documented. The EEOC indeed admits they existed. Suffice
it here to say that, among other problems, Harris failed to update
spreadsheets, complete her paperwork, schedule her training sessions, price
items correctly, and finish her work on time. Her performance issues are why she ranked in the bottom 10% of her
peer group before she
made her charge.
Granted, the Court
agreed with the EEOC that the timing of the Plaintiff’s termination seemed
suspicious – coming a mere four months after she filed her Charge. “But while this ‘gives us pause,’ ‘temporal
proximity cannot be the sole basis for finding pretext.’”
The Court rejected the argument that the Plaintiff’s
supervisor harassed her about her attendance because her subjective distress
about the meetings was not reasonable and, more importantly, her supervisor
played no role in the decision to terminate her employment. He was on vacation when she was terminated
and was never consulted on the matter.
The Court also agreed that it seemed suspicious that the
first time the Plaintiff received a “lower achiever” performance rating was only
a few months after she filed her Charge when, in the
past, she had always received at least an “excellent plus” rating. However, this was adequately explained as a
mere change in terminology that took place in all performance evaluations in 2009 and that her percentile ranking
– bottom 10% -- had not changed in two years.
At first glance, this looks bad for Ford. Harris received her
first “lower achiever” rating post-charge, and she received only “excellent
plus” ratings before her charge. The EEOC stops there. But digging deeper—and
looking at the whole record—reveals
two reasons why no reasonable jury could find this low rating proof of pretext.
For one, 2009 was the only year that Harris could
have received the lower-achiever rating. Ford overhauled its ratings
system that year for all employees, ditching the default “excellent plus”
category (which 80% of workers received) in favor of a more accurate
description of a worker’s performance. In Harris’s case, that meant “lower
achiever”—the first and only time she could receive that rating. For two, the change
in name did not change Harris’s low numerical ranking. In her only performance
review after the
charge, she ranked in the same percentile range as she did immediately before the charge: the
bottom 10%. That’s not evidence of retaliation; that’s just poor
performance—both before and after the charge.
Finally, the Court rejected the Plaintiff’s
speculative testimony that she was set up to fail in her performance
improvement plan.
The record shows that Harris failed two prior plans to
improve her performance and attendance, similar to this one—and both before she filed her
charge. The record also shows that Harris failed to achieve any of the objectives identified
in post-charge plan, . . .—not just the objective the EEOC says is evidence of
retaliation (eliminating her backlog of paperwork, see Dissent Op. at 38–39.). And the
record shows that Ford used similar performance-enhancing plans for other
employees who, like Harris, performed poorly. . . . Harris’s testimony thus fails
to create a genuine dispute of fact because it is “so utterly discredited by
the record that no reasonable jury” could believe it.
In any event, the Court also concluded that the EEOC failed
to prove ‘but-for” causation as part of the prima
facie burden of proof – i.e., that the Plaintiff would not have been fired
but for filing her Charge of Discrimination.
In addition to Harris’s past failings, she admitted that she
would not be able to attend work on-site in a regular and predictable manner in
the future. And this attendance was an essential element of her job. No
reasonable jury could find that Ford—a for-profit corporation— would continue
to pay an employee who failed to do her job well in the past, and who, by her own
admission, could not perform the essential elements of her job in the future. The EEOC thus cannot demonstrate that
Harris’s charge was the but-for cause of Ford’s decision to fire her, which
means that Ford was entitled to summary judgment for that reason as well.
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.
