Today’s case is a twofer. That is, we are going to talk about two different cases, both dealing with the interactive process and essential functions of the job. The first case is an unpublished decision from the 11th Circuit, Kassa v. Synovus Financial Corporation, decided February 3, 2020. The second case is Seward v. Roy City decided by the United States District Court for the District of Utah on January 22, 2020. As usual, the blog entry is divided into categories and they are: Kassa facts; Kassa court’s reasoning; Seward facts; Seward court’s reasoning; and thoughts/takeaways on both cases. Of course, the reader is free to concentrate on any or all of the categories.
Plaintiff began working for the defendant as a lead network support analyst in the network operations center during night and weekend shifts. He has bipolar disorder and also suffers from intermittent explosive disorder. Accordingly, he told his supervisor about his disorders and that he would sometimes get angry or upset. He also told his supervisor that he was able to control his anger if he took his medicine and could take short breaks. The supervisor granted his request to take a short break when he got frustrated so long as his area was covered and he could be reached if necessary. That system worked fine. However, in 2016, defendant restructured and his department was outsourced to a third party vendor. Since plaintiff had quite a bit of technical expertise, the defendant wanted to retain plaintiff’s services and transferred him to the automated teller machine team. That team was responsible for handling customer service calls about issues with automatic teller machines. Once plaintiff learned that his position would involve answering customer service calls from both technical and non-technical personnel, he spoke to his senior director and to a human resources manager about his concern that he might lose his temper while talking to someone on the phone as he had a condition where he couldn’t always control what he said. Accordingly, it was not a good idea to have him answering phones. Plaintiff asked the senior supervisor if he could take customer service calls only from technicians, work nights, work from home, or could take a short break when he was having an episode. None of those requests were granted. Of course, plaintiff did indeed have episodes and in July 2017, his employment was terminated after plaintiff made another rude and unprofessional comment during customer service call. After filing with the EEOC, plaintiff sued the defendant alleging failure to provide a reasonable accommodation and for retaliation.
Kassa Court’s Reasoning
- To establish a prima facie case of discrimination under the ADA, plaintiff must show he is: 1) disabled; 2) a qualified individual; and 3) that he was subject to unlawful discrimination because of his disability.
- The essential functions of the position are the fundamental job duties of the position an individual with a disability is actually required to perform. The court then proceeds to list out all the EEOC factors and EEOC situations going into deciding whether a job function is essential.
- The District Court got it right when it came to deciding that situations answering customer service calls was an essential function of plaintiff’s job on the ATM team. There really wasn’t any dispute on that point from either the plaintiff or the defendant.
- An accommodation is reasonable only if it enables the employee to perform the essential functions of the job.
- The employee has the burden of identifying accommodations and demonstrating that it is reasonable.
- Plaintiff brought forth enough evidence to establish his request to take short breaks was a reasonable one. After all, he did precisely that in the job he was in prior to being transferred. Also, plaintiff’s supervisor for his original job testified that he generally permitted his customer service employee to take breaks when they got frustrated.
- Plaintiff testified that when he transferred to the new team the accommodations simply stopped.
- An employer’s failure to provide a reasonable accommodation is itself a violation of the ADA.
- With respect to accommodation requests of not having to answer all calls, working from home, and working at night, those requests were not reasonable in light of the facts put forward by the defendant.
- A retaliation claim cannot duplicate a failure to accommodate claim.
- So, the 11th Circuit vacated the District Court’s summary judgment on plaintiff’s failure to accommodate discrimination claim with respect to his request to take short breaks and remanded for further proceedings. They affirmed summary judgment on the remaining failure to accommodate claims as well as the retaliation claim.
Seward Facts (taken directly from opinion)
Seward worked for the Roy City Police Department from April 2001 until May 2015. During his time with the police department, he concurrently served with the United States Air Force Reserve. As a part of his duties with the Air Force Reserve, he was deployed to Afghanistan from February 21, 2014 until October 31, 2014. While in Afghanistan, he sustained an injury to both of his knees.
Upon Seward’s return from Afghanistan, he engaged in full active duty with Roy City until the condition of his knees worsened, mandating knee surgery in March of 2015. Seward took thirty days of unpaid leave to recover, and then was placed on light duty with Roy City. On April 15, 2015, Seward submitted a letter from his surgeon, Dr. Thomas, requesting an extension of light duty for an additional four weeks. Roy City granted the extension of light duty. The letter stated that Dr. Thomas anticipated Seward returning to “Full Duty in 4 weeks as police officer.”
In May, acting Roy City Police Chief Calcut asked Seward for an update as to when Seward could return to full active duty. On May 11, 2015, Seward submitted a second physician’s note recommending three additional months of light duty. The second note also stated there would be a “Follow up with doctor in: 4 wk(s).” After reviewing the letter, Calcut informed Seward that he was “good to go.” Seward understood from this statement that Calcut had approved his request for an extension of his light duty assignment. On May 27, Seward submitted a third doctor’s note stating that he was able to carry a firearm and drive a police vehicle and that he should follow up with his physician “as needed.”
On May 29, 2015, Roy City asked Seward to meet with human resources to fill out Family and Medical Leave Act (FMLA) paperwork. During that meeting, the city told Seward to call Dr. Foot to schedule a physical within the next two weeks. Seward was informed that he must pass a fit-for-duty examination in that time period in order to return to his job as a police officer. He was then sent home on unpaid leave.
Seward believed that he could not pass a physical within the allotted time period and did not call Dr. Foot. Instead, he submitted a retirement letter on June 12, 2015. Seward then sued Roy City, asserting three causes of action: (1) disability discrimination in violation of the ADA, (2) disability discrimination in violation of the Rehab Act, and (3) failure to engage in the interactive process or make a reasonable accommodation in violation of the ADA. Roy City moved for summary judgment on all three claims. Seward stated that he intended to abandon his first two claims but argued that summary judgment was not appropriate for his third claim.
Seward Court’s Reasoning
- An available claim under the ADA is the employer failed to engage in an interactive process to accommodate a person’s disability.
- Federal regulations implementing title I of the ADA envision an interactive process requiring participation by both parties.
- The interactive process begins when an employee provides notice of a request for an accommodation.
- One notice is given, both parties have the obligation to proceed in a reasonably interactive manner to determine whether reasonable accommodations can be granted.
- A plaintiff bringing a failure to accommodate claim must show: 1) that he or she is a qualified individual with a disability; 2) that the employer was aware of the disability; and 3) that the employer failed to reasonably accommodate the disability.
- In a footnote, the court noted that the 10th Circuit has granted a petition for an en banc rehearing to review whether an adverse employment action is a requisite element for failure to accommodate claims under the ADA. Since that has not been decided yet, the court followed existing precedent, which we discussed here, that an adverse employment action is required.
- A temporary reprieve from an essential function, such as a leave of absence or light duty assignment, for treatment of recovery from an injury can be a reasonable accommodation providing certain circumstances are met: 1) the employee provides an estimated date when he or she can resume his or her essential duties; and 2) the request for leave or modified duties must assure the employer than an employee can perform the essential functions of his or her position in the near future.
- The letter furnished by the plaintiff from his surgeon recommended that the plaintiff be limited to light duty work for a period of three months. Accordingly, the clear implication of that letter is that the light duty restriction would be lifted at the end of the three month period. So, that letter necessarily provides a projected date for the defendant as to when the plaintiff could resume his essential work duties.
- A failure to engage in the interactive process is a failure to make reasonable accommodations.
- Interactive process includes good-faith communication between the employer and the employee. A lack of good faith can be demonstrated by the party obstructing or delaying the interactive process or by the party failing to communicate with respect to starting or responding to the interactive process.
- While requesting an update on medical information from an employee is reasonable, giving the employee an ultimatum is not. Here, plaintiff produced evidence the defendant gave him an ultimatum where he either had to pass a fitness for duty test within two weeks or be terminated. An all or nothing ultimatums from an employer ending the opportunity for any possibility of reasonable accommodation is not the flexible and informal process mandated by the ADA.
- The 10th Circuit liberally views what an adverse employment action is. In the 10th Circuit, it is more than just monetary losses. The United States Supreme Court has held that a jury can reasonably conclude that a suspension without pay is an adverse employment action. Here, plaintiff presented evidence that he was placed on unpaid leave and then given the ultimatum. Accordingly, that suffices for an adverse action.
Thoughts/Takeaways on Both Cases
- I am still seeing a lot of confusion about the prima facie case for discrimination under title I of the ADA. That is, I still see too many courts talking about the standard of causation being, “because of his disability.” That isn’t the standard. The statute, 42 U.S.C. §12112, specifically says the standard is, “on the basis of.” Further, we have talked about cases, such as here, strongly implying if not holding, that the standard outside of the retaliation context is not because of (whether that be “but for,” or sole cause).
- You most certainly can look at all the factors EEOC lays out plus the additional situations they mention to determine what are the essential functions of a particular job. Keeping it simple, look to what is fundamental to carrying out those job duties. Don’t forget that the standard is whether a person can carry out those essential job duties with or without reasonable accommodations.
- Not unusual to see cases saying that the employee had the burden of identifying accommodation and demonstrating that the accommodation is reasonable. That becomes a particular issue when it comes to reassignment as a reasonable accommodation, which we have discussed here.
- If it ain’t broke, why fix it? I can’t tell you how many times I see a new supervisor with a system already working blow the whole thing up. That is only a recipe for litigation. If an accommodation is working, keep letting it work.
- “An employer’s failure to provide a reasonable accommodation is itself a violation of the ADA.” This statement from Kassa raises the question of whether the 11th Circuit would require an adverse action for failure to accommodate claims. The 10th Circuit is quite liberal as to what an adverse action is and may even soon get rid of the requirement altogether in failure to accommodate cases.
- Failure to accommodate claims are fine, but a retaliation claim has to be distinct from the failure to accommodate claim.
- With respect to what the interactive process should look like, this blog entry addresses that question.
- Magic words are not required to start the interactive process.
- Will definitely be following what the 10th Circuit does in Exby-Stolley. It will not surprise me at all to see a Circuit Court split develop on this question of whether failure to accommodate claims require an adverse action.
- Courts outside of the Seventh Circuit are tending to be flexible with respect to extended leave as a reasonable accommodation. The general trend is extended leave is okay where the employee can provide an estimated date in the near future for his return. In the District Court of Utah, three months was reasonable. Again, jurisdictions are going to vary on how to deal with extended leave beyond the FMLA leave.
- An ultimatum can be construed as blowing up the interactive process.
- An employer is not required to create light-duty positions if they don’t already have one.
- Don’t forget, as we discussed here, that reassignment can be a reasonable accommodation.
- The 11th Circuit said in Kassa the following: “an accommodation is reasonable only if it enables a person with a disability to perform the essential functions of the job.” Note, what the court is not saying. It is not saying that the accommodation must be related to the essential functions of the job. Rather, it is saying that the accommodation must enable a person to perform the essential functions of the job. That language is Exhibit 1 for any plaintiff lawyer saying that a bona fide service dog is always a reasonable accommodation because without it a person will not be enabled to perform the essential functions of the job. So, as a matter of preventive law, allow bona fide service dogs for your employees assuming proper documentation.
- Most of the cases I am now seeing are using the term, “disabled.” I still prefer people first language myself.