Sixth Circuit Dismisses ADA Claim Because Employer Is Not Required to Guess About Extent of Disability or Desire for Accommodation

Yesterday, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on an ADA failure-to-accommodate claim.   Aldini v. Kroger Company of Michigan, No. 15-1044 (10-7-15).  In that case, the plaintiff retracted his request for a reasonable accommodation after his manager indicated that he could not grant the request, but would send it to the human resources department.  He then brought suit two years later for a failure to accommodate and for harassment (which apparently pre-dated his foot injury and accommodation request).  The Court held that the plaintiff failed to meet his burden of proving that he had requested an accommodation after he voluntarily retracted it and the employer was not required to infer a reasonable accommodation need under the circumstances.  Further, the plaintiff could not show that it would have been futile to make another reasonable accommodation request.

According to the Court’s opinion, the plaintiff returned to work following a medical leave for foot surgery.  Although he initially returned without any work restrictions, a week later he produced a physician note indicating that he required some lifting restrictions and rest breaks.  His manager responded that he could not provide these accommodations, but would send his request to the human resources department.  Taking this as a rejection (and not aware of the possibility of being temporarily transferred, etc.), the plaintiff returned to his physician that same day and obtained a release to return to work without any medical restrictions.   He continued to work without any medical restrictions for the next two years.  At that point, he filed a charge of discrimination with the EEOC alleging that he had been denied a reasonable accommodation, but did not indicate what accommodations had been denied.  He then filed another charge alleging that he had been subjected to harassment. 

The Court affirmed dismissal of the harassment claims because the alleged harassment began before his foot surgery.  There was also no evidence that the allegedly harassing manager knew anything about his accommodation request, any issue of his alleged disability or his EEOC Charge.  Finally, the plaintiff conceded that the manager was hard on everyone, not just him.

The Court also affirmed dismissal of the disability discrimination claim based on an alleged failure to accommodate.  “The employee bears the burden of requesting a reasonable accommodation.”  While an accommodation request can be inferred in certain situations and can be excused when the request would be futile, the employee bears the burden of proving that a request was made so that “[t]he employer is not required to speculate as to the extent of the employee’s disability or the employee’s need or desire for an accommodation.”  Accordingly, “the general rule is that when the employee does not propose an accommodation, his ‘failure to accommodate’ claim must fail.” 

 In this case, the Court refused to infer that the employer was on notice of the plaintiff’s need for a reasonable accommodation because the plaintiff retracted his only request within 24 hours and worked for two years afterwards without any indication that he required any accommodation in order to perform his job.  His “decision to withdraw his request and continue working without complaint means his claim must fail and summary judgment is appropriate.”

The Court also refused to excuse the plaintiff from repeating his prior request based on futility.  While his supervisor indicated that he would not grant the accommodation, he also stated that he would forward the plaintiff’s request to the human resources department.  While the plaintiff may have found this ambiguous statement to indicate a denial of his request, the denial was not definitive and did not indicate that all future requests would similarly be denied.  Therefore, his case was distinguishable from cases were requests have been found to be futile where the employer unequivocally and definitively rejected the accommodation request.

Finally, the Court found that the EEOC Charge and subsequent letter from the plaintiff’s attorney did not constitute reasonable accommodation requests because neither communication indicated what accommodations he sought or what work restrictions he required.

 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.

Court Reinstates Lawsuit Against Individual Manager for Disability Discrimination

Yesterday, the Ohio Court of Appeals reversed a summary judgment dismissing an employee’s claim for disability discrimination against his former manager.  Price v. Carter Lumber Co., 2015-Ohio-1522.   This case only involved state law claims against the manager because the employer had apparently earlier prevailed on an ADA claim in federal court.  The Court found that there was a disputed issue of fact as to whether the plaintiff could perform the essential functions of his position with a reasonable accommodation.  While the plaintiff admittedly could not satisfy the employer’s lifting requirement, there were disputed issues as to whether that lifting requirement was an essential function of the job, whether the plaintiff could be transferred to a non-lifting position or whether the lifting requirement could be accommodated.  The employer did not utilize written job descriptions or performance evaluations to substantiate its arguments.  The employer denied telling the plaintiff that he was being laid off in January 2003 and would never be rehired because of his physical impairments, therefore, the plaintiff was relieved of requesting any specific accommodation.   Nonetheless, the Court affirmed dismissal of the emotional distress claim.

According to the Court’s lengthy opinion, the plaintiff was hired in 1998 as a yard worker at the lumber company.  When he began experiencing vision difficulties in Spring 2002, his driving duties were eliminated.  When he was then placed on lifting restrictions that Fall, he was transferred to a retail counter position part of the time and yard work (without heavy lifting) part of the time.  The employer claims that he had very poor customer and communication skills and never mastered the cash register, etc.  However, none of these performance issues were documented.  The employer regularly laid off employees during the slow winter months, but had previously recalled the plaintiff without requiring him to re-apply.  The plaintiff suffered kidney failure in December 2002 and was released to return to work in January 2003 with heavy lifting restrictions and a regular dialysis schedule.  He was then informed that he was being laid off because of economic conditions.  After some period of time had passed, the defendant manager finally admitted that he was not being recalled and the plaintiff testified that the manager specifically mentioned his dialysis schedule.

The manager contended that heavy lifting was an essential job function of a yard worker, although there was contrary testimony and no job description.   In addition, the manager failed to list heavy lifting as a job requirement when completing the EEOC’s questionnaire.  While workers may help each other out with heavy items, that was not always possible if they were busy with other customers. He also testified that sales employees sometimes also have to lift heavy items and need to  have an additional customer service skill set, which the plaintiff lacked.  He and another witness testified that the plaintiff needed to be repeatedly coached on his communication skills.  The plaintiff was laid off during the slow season and told him to reapply in the future.  The manager denied telling the plaintiff that he would be recalled to work when the economy improved in 2003.

The Court refused to hold the plaintiff to his SSI application where he claimed to be disabled because of his lifting restrictions because the SSI application does not consider reasonable accommodations that could be provided.  

“[n]either application for nor receipt of social security disability benefits is by itself conclusive evidence that an individual is completely incapable of working.” Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419, 429 (6th Cir.2014). “[O]ne may, in fact, be totally disabled under Social Security Disability Insurance (“SSDI”) application guidelines, but nevertheless be capable of performing the essential functions of one’s job. This is so because the focus of SSDI is distinct and does not consider, for example, the effect of a reasonable accommodation on the ability to do work.”

The plaintiff produced evidence of a number of accommodations – “such as rollers, dollies, sliding boards, flatbed carts, and handheld scanners that allow for pricing items without removing them from a cart or dolly”  that might have helped him perform his job.  Moreover, he showed that he had worked for several months with his duties split between yard work and inside sales while he had a similar lifting restriction. 

The Court also found a factual dispute to exists as to whether repeated heavy lifting was an essential function of a sales position.  Similarly, a factual dispute existed as to whether the plaintiff could perform either the yard worker or sales position with a reasonable accommodation.  There were no job descriptions and was conflicting testimony about the necessity of heavy lifting on those jobs.

In addition, the Court also found that the plaintiff was not required to request an accommodation because he had never been informed that his employment was being terminated on account of his physical limitations.  Instead, his termination was attributed to “seasonal cutbacks.”  When the plaintiff visited the store several times after his termination to see if he could return, he was not told about concerns with his physical limitations.  There was no discussion about any possible accommodations or limitations.  Finally, the plaintiff claimed that he was told that he was told the real issue was his dialysis schedule.

Nonetheless, the Court affirmed the dismissal of his emotional distress claim (i.e., intentional infliction of emotional distress).   The plaintiff felt distressed that his manager mislead him about his eligibility to return to work.

Although Mr. Price argues that Mr. Collins told him “numerous lies * * * about rehiring him in the Spring,” he failed to present evidence of any affirmative statements that Mr. Collins made in which Mr. Collins actually promised to rehire him. At best, Mr. Price set forth evidence that Mr. Collins implied he would have a future with the company. Even viewing that evidence in a light most favorable to Mr. Price, however, we cannot agree that it created a genuine issue of material fact for trial. Any false sense of hope that Mr. Collins might have given to Mr. Price and his wife at a time when they were mentally and financially vulnerable was morally reprehensible. We cannot say, however, that it was legally actionable.

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

En Banc Sixth Circuit Upholds Regular Attendance and Physical Presence Requirement and Rejects EEOC’s Telecommuting Accommodation Under ADA

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 (6^th 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.

Sixth Circuit Faults Employer’s Failure to Transfer Disabled Plaintiff Under the ADA

Last month, a unanimous Sixth Circuit Court of Appeals partially reversed an employer’s summary judgment on an ADA claim on the grounds that the employer may have failed to offer an effective accommodation or engage in the interactive process.  Mobley v. Miami Valley Hosp., No. 14-3665 (6^th Cir. 2-25-15).  In that case, the plaintiff custodial employee suffered from a number of cognitive and physical impairments, but had successfully performed his position cleaning operating rooms for approximately five years.  Following some interpersonal conflicts with surgical staff and despite another excellent performance evaluation, he was transferred to cleaning patient rooms.  He never mastered his new routine, only completed a quarter of his assigned tasks each day and was placed on a performance improvement plan.  Although he and his doctors requested his reassignment back to his operating room duties, the employer refused and ultimately terminated him.  The Court concluded that the transfer itself was not discriminatory because it was not objectively adverse.  However, a jury could legitimately question the employer’s refusal to return him to his operating room assignment and failure to engage in the interactive process beyond removing a small amount of his new workload.

The Court rejected the argument that the plaintiff’s transfer to cleaning patient rooms was materially adverse because it did not involve a change in his shift, title, pay or benefits.   There also was not a material change in his workload or prestige since his co-workers with the same job title and job description had no difficulty performing these duties.  

. . . his personal difficulty with the job does not in and of itself raise a genuine dispute that the position is objectively intolerable.  . . .We have held only that the physical demands of a new position rose to the level of objective intolerability where the record evinced a consensus among employees that the job was more taxing,  . . . or where the job exposed the plaintiff to patently dangerous conditions, . . .

For the same reason, the Court rejected the plaintiff’s constructive discharge argument that he was set up to fail because the transfer was not objectively adverse and the working conditions were not intolerable to a reasonable person.

However, the Court was receptive to the plaintiff’s arguments that he was denied an effective accommodation of his disability.  Surprisingly, despite the plaintiff’s many years of favorable performance evaluations (demonstrating his competence), the employer argued that he was not qualified for his custodial position (even with a reasonable accommodation).  It asserted that his job description provided that incumbents must be able to rotate to different areas of the hospital.  However, the Court found that a jury could question that because some employees rarely, if ever, rotated.  It also rejected the employer’s argument that the plaintiff could not satisfy the interpersonal requirements of the positions (because of recent conflicts with surgical staff) since the plaintiff had received an excellent performance evaluation after those conflicts and the employer admitted that such conflicts typically lead to coaching instead of transfers.  The Court seemed particularly concerned with the employer’s inability to explain why the plaintiff had been transferred in the first place, citing only a vague concern with “operational needs.”  The Court also noted that the employer has a legal obligation to transfer employees into vacant positions as an accommodation and the employer sought other employees to transfer into the plaintiff’s former operating room position after his involuntary transfer.  

The Court also rejected the employer’s argument (which the trial court had adopted) that the plaintiff’s accommodation request was not necessitated by his disability, but was a mere personal preference.  The Court noted that the plaintiff’s request was supported by two different physicians and his wife, who explained that his cognitive impairments affected his ability to learn new things, adapt to new situations or comprehend new and complicated rules.  In contrast, the employer relied only upon the opinions of the plaintiff’s former supervisor.

The Court also rejected the argument that the plaintiff failed to apprise the employer that his request was necessitated by his disability: “our case law considers letters from physicians sufficient to notify an employer of the need to accommodate a disability.”  Moreover, there was evidence that the supervisor knew about the plaintiff’s prior stroke, brain surgeries and other symptoms.

Finally, the Court found there was sufficient evidence to show that the employer failed to engage in a good faith interactive process.   Although an employer is not required to grant the accommodation requested or preferred by the employee, a counter-proposal can be evidence of good faith.  Although the employer in this case offered to decrease a small amount of the plaintiff’s new workload and provided coaching from a co-workers, this was not a good faith counterproposal because the problem was his ability to adjust to new situations, not the workload:

it is not unreasonable to think that Mobley’s particular impairments might have necessitated something more than a few days with a coworker unversed in helping the disabled. Similarly, the developmental plan reduced some of Mobley’s workload in the patient trash position and tried to clarify his responsibilities, but even under the revised plan Mobley was unable to complete more than a quarter of his assigned work. Though we by no means conclude that MVH is certainly to blame for the failure to reach a mutually acceptable accommodation, a reasonable jury could conclude that MVH did not in good faith consider Mobley’s proposed transfer and that further dialogue would  have been necessary to reach an agreeable outcome.

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 Vacates and Sets for En Banc Rehearing April Decision Making Physical Presence at Job Site Optional Under ADA

On Friday, a majority of the active Judges sitting on the Sixth Circuit Court of Appeals voted to vacate the divided decision by a panel of three judges from April which held that regular physical attendance at a job may not generally be considered to be an essential function of a job.  In that case, the EEOC convinced two judges that physical presence at a job may not be an essential job function and that working from home could be a reasonable accommodation.   EEOC v. Ford Motor Company, No. 12-2484 (6^th Cir. 4-22-14).   The case has now been set for an en banc rehearing before all of the judges of the Sixth Circuit, which could affirm, modify, or reverse the prior decision.  

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

Sixth Circuit Rejects ADA Claim for Private Office by Hearing Impaired Plaintiff

Last Thursday, the Sixth Circuit Court of Appeals affirmed summary judgment on an ADA reasonable accommodation claim.  Obnamia v. Shinseki, No. 13-4228 (6^th Cir. 6-19-14). In that case, the hearing-impaired plaintiff sought a private office and handrails in a hallway where she fell and sustained head injuries.   The plaintiff failed to show that a private office was necessary – and thus reasonable – because she was successfully performing her job without one.   Moreover, her requests for a private office mentioned only her desire to avoid her co-workers.  Her physician’s supporting statement indicated only that it would improve her efficiency, not that that it was essential or necessary.  Similarly unnecessary – and thus not reasonable – was her request for handrails when she admitted that she failed to regularly utilize her three-legged cane and wasn’t using it when she fell.  It was more reasonable for her to use a medically prescribed medical device than to require her employer to install handrails.

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: Physical Attendance at Work No Longer Generally an Essential Job Function

[Editor's Note:   On August 29, 2014, a majority of the active judges of the Sixth Circuit Court of Appeals voted to vacate this decision by two of a panel of three judges and set it for an en banc re-hearing before all of the Sixth Circuit Court of Appeals judges.]

Yesterday, a divided federal Sixth Circuit Court of Appeals issued a decision of importance to most employers concerning the ADA and an employer’s ability to require an employee to report to a particular work location as an essential function of the job.   EEOC v. Ford Motor Company, No. 12-2484 (6^th Cir. 4-22-14).    In this case, the employer rejected an employee’s request to work from home several days each week during normal business hours as an accommodation of her IBS disability because the employer considered it to be an essential job duty to interact face-to-face with colleagues when engaging in problem solving and because her earlier attempts to work from home after normal business hours had been unsuccessful.  The Court rejected the employer’s evidence that telecommuting (i.e., working from home) was an unreasonable accommodation because the employer’s evidence consisted of problems created by the employee’s working during non-business hours (i.e., flex time).  Instead, the Court concluded that the EEOC produced sufficient evidence to create a factual dispute about whether reporting to the office was an essential job function and whether telecommuting was a reasonable accommodation.  The Court still acknowledges that flex time arrangements may still be presumptively unreasonable, that predictable attendance is still an essential function of most jobs and that “many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite.”    The Court also rejected the employer’s proposed accommodation of transferring the employee to a different position from which she could reasonably telecommute because “reassignment of an employee is only considered when accommodation within the individual’s current position would pose an undue hardship.”  Finally, the Court found sufficient evidence of retaliation for the employee to survive the employer’s summary judgment motion because she was placed on a performance enhancement plan and ultimately terminated for long-standing performance issues which were not escalated until shortly after she filed her EEOC Charge.

According to the Court’s opinion, the employee at issue held a position as a resale buyer.  The role of resale buyers was to:  

respond to emergency supply issues to ensure that there is no gap in steel supply to the parts manufacturers.  . .  The position involved some individual tasks, such as updating spreadsheets and periodic site visits to observe the production process.  . . .  However, “the essence of the job was group problem-solving, which required that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.”  . .  Ford managers made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving. Another resale buyer on [the] team believed that she “could not work from home more than one day a week and be able to effectively perform the duties of the resale buyer position.”

The plaintiff had received positive performance evaluations, but was viewed as in the bottom quartile of her peers based on her job performance. “She also received low rankings on most of her job related skills assessment areas in 2007 and 2008.” 

The employee’s IBS disability required her to frequently utilize FMLA leave.  In the first seven months of 2009, she “was absent more often than she was present during core business hours.”  She was permitted to flex her working hours on a trial basis, but the experiment was deemed to be a failure. She “was unable to establish regular and consistent work hours” and could not “engage in team problem-solving or access suppliers to obtain information during off-hours.” When she “worked nights and weekends, she made mistakes and missed deadlines because she lacked access to suppliers.” 

The employee formally requested in February 2009 that she be permitted to telecommute on an as-needed basis as an accommodation for her disability.  Ford permitted some employees to telecommute, but no one in her resale buyer position.  After discussing some issues surrounding her accommodation request, Ford proposed instead moving her cubicle to be closer to a restroom or transferring her into another position that could accommodate her request to telecommute.   She then filed an EEOC Charge in April.  Thereafter, her supervisor held a group meeting to discuss how her workload should be reallocated among the team when she was absent and held one-on-one meetings with her where she felt he yelled at her.  She was then placed on a 30 performance enhancement plan with concrete objectives. When she failed to meet the objectives, she was terminated in September 2009.    

The EEOC ultimately filed suit against Ford, alleging discrimination and retaliation in violation of the ADA.  The District Court granted summary judgment to the employer, but the Sixth Circuit reversed on both claims. 

The Court found that the EEOC presented sufficient evidence to avoid summary judgment on the grounds that that the employee was qualified for her position both if the requirement was eliminated that she be physically present at Ford facilities and if she was provided with the telecommuting accommodation.   The EEOC argued that if Ford’s objections to her attendance were removed, she was qualified for her position.   The Court placed on Ford the burden of proving that the employee’s physical presence was an essential function of the resale buyer position. “For many positions, regular attendance at the work place is undoubtedly essential.” 

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question. . . .

Ford argues that physical attendance at the Ford workplace was critical to the group dynamic of the resale-buyer team. Our sister circuits have recognized that physical presence at an employer’s facility may be an essential function for some positions specifically because they require extensive teamwork.  . . . However, as we have discussed, advancing technology has diminished the necessity of in-person contact to facilitate group conversations. The world has changed since the foundational opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace. . . . Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.

Moreover, our inquiry does not end simply because Ford has expressed the business judgment that face-to-face interaction is desirable. Courts routinely defer to the business judgment of employers because courts are not equipped with the institutional knowledge to sit as “super personnel department[s].”,. . . However, we should not abdicate our responsibility as a court to company personnel boards: While we do not allow plaintiffs to redefine the essential functions of their jobs based on their personal beliefs about job requirements, id., neither should we allow employers to redefine the essential functions of an employee’s position to serve their own interests. Rather, we should carefully consider all of the relevant factors, of which the employer’s business judgment is only one.

The Court ultimately rejected the employer’s evidence that physical presence was an essential function as an undisputed fact because the EEOC presented evidence to the contrary which could be credited by a jury.  For instance, the employee testified that even when she was physically present at Ford, she still communicated mostly by telephone and email (both of which she could do from home).   More importantly, her position was not one that required face-to-face interaction with clients.  Although she occasionally needed to meet with clients, “Ford has offered no evidence to prove that Harris would be less able to perform these site visits if she worked partially, or even primarily, from her home rather than Ford’s facilities. . . . . A site visit requires the resale buyer to leave the location where she ordinarily works, whether it be a Ford facility or the employee’s home.”  

The Court also concluded that the EEOC produced sufficient evidence to show that telecommuting could be a reasonable accommodation in this case. “We have previously concluded that telecommuting is not a reasonable accommodation for most jobs, but that there may be “unusual case[s]” when telecommuting is reasonable because the “employee can effectively perform all work related duties at home.”  The Court rejected the employer’s counter-arguments because they focused on problems created by flex time (i.e., working a different schedule) than in reporting to the same office location.  

Requests for flex-time schedules may be unreasonable because businesses cannot “operate effectively when [their] employees are essentially permitted to set their own work hours . . . . Indeed, leave on a sporadic or unplanned basis may be an unreasonable accommodation. . . .  However, telecommuting does not raise the same concerns as flex-time scheduling because an employer can still rely on an employee to be working during scheduled hours. Harris did not request to “simply miss work whenever she felt she needed to and apparently so long as she felt she needed to.”  . . . Instead she requested that she be able to work from home when she felt she needed to during normal business hours.

The Court rejected the argument that the telecommuting created additional work for the employee’s co-workers because the identified issues arose from her flex-time arrangement and not her telecommuting:

A proposed accommodation that burdens other employees may be unreasonable,  . . .but the resale- buyer position is not one that requires most of an absent employee’s work to be transferred to a coworker. For many jobs, an employee must be physically present at work to perform specific tasks; when the employee is not present, those duties must necessarily shift to the absent employee’s coworkers.

The Court also surprisingly rejected the employer’s objection to the telecommuting arrangement based on her prior poor attendance and disregarded its proposed alternative accommodations:

If Ford objected to Harris’s request to telecommute for “up to four days per week,” it was Ford’s responsibility to engage in an interactive process to explore reasonable alternatives.  . . . Harris was willing to discuss alternative accommodations, including a telecommuting arrangement for as few as one to two days per week. Ford’s failure to engage in that discussion is not evidence that a telecommuting arrangement in any form was unreasonable . . .

The Court also rejected the employer’s concern with the employee’s attendance record as a reason for rejecting telecommuting because her absences were related to her disability.  One Ninth Circuit opinion concluded that  “[i]t would be inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.” While the Court acknowledged that “[w]hen an employer “offers a reasonable counter accommodation, the employee cannot demand a different accommodation,” it did not find the employer’s proposed alternatives to be reasonable: 

The EEOC has provided evidence that casts doubt on whether these alternatives address the problems Harris experienced with her IBS. . . . Clearly, moving Harris to a cubicle closer to the restroom does not address her needs if she has no control over her bowels for the time it would take to reach the restroom. Nor do we consider it reasonable, as the dissent suggests, to expect an employee to suffer the humiliation of soiling herself on a regular basis in front of her coworkers, merely because she could use Depends to contain the mess or bring a change of clothes to clean herself up after the fact. Likewise, Ford’s offer to assist Harris in finding an alternative position within Ford,  . . . was not a reasonable accommodation because there was no guarantee that such a position would be forthcoming. Furthermore, “reassignment of an employee is only considered when accommodation within the individual’s current position would pose an undue hardship.”

The Court then required the employer to prove that telecommuting would pose an undue hardship. “[U]ndue hardship is something greater than hardship, and an employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operating routine.” The Court concluded that the employer could not prove undue hardship in this case. “Although setting up a home workstation for Harris might entail some cost, considering Ford’s financial resources and the size of its workforce, this cost is likely to be de minimis. Indeed, Ford has created a written policy in which it pledges to absorb these costs for all employees approved to telecommute.” 

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. . . . We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.”

The Court also found that the EEOC produced sufficient evidence of unlawful retaliation by the employer after the employee filed her EEOC Charge.  While there was a documented history of performance issues, she was not placed on a PEP until shortly after she filed her EEOC Charge.   Her supervisor also began holding “intimidating” weekly meetings with her after she filed her Charge and she was ultimately fired four months after filing her Charge.   The Court concluded that the EEOC produced sufficient evidence of pretext because:

When viewed in a light favorable to Harris, the evidence suggests that Harris’s performance failings did not actually motivate Ford’s decisions to discipline her and terminate her employment. Although many of Harris’s performance deficiencies were ongoing problems, they prompted a negative review only after Harris filed her EEOC charge. . . . In addition, a reasonable jury could infer that the PEP was designed to set Harris up to fail: One of Harris’s PEP goals was to eliminate a backlog of paperwork,  . . . but Harris testified that the paperwork was pending only because she needed to wait on responses from suppliers and coworkers.

Granted, “the paperwork tasks designated in the PEP “were important duties of the resale buyer position.” “[B]ut the question is not whether the duties identified in the PEP were integral to the position; rather, the question is whether the duties were achievable within the 30-day window provided for in the PEP.”

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.