Today’s blog entry explores an unpublished decision from the Sixth Circuit on April 29, 2024, that discusses some important points regarding reasonable accommodations. The case is Yanick v. The Kroger Company of Michigan, here. As usual, the blog entry is divided into categories, and they are: facts; what is sufficient notice from an employee that a reasonable accommodation is needed; when is an accommodation reasonable; EEOC charges are important; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

For 15 years, plaintiff met the expectations of working in the bakery. In 2018, she was diagnosed with breast cancer and a new person took over as the store manager. Plaintiff said the new store manager badgered, criticized, and harassed her. The store manager would ask the plaintiff numerous questions and was usually unfriendly and critical.

 

When issues in the bakery department persisted, the store manager called the plaintiff into her office and they had three meetings over nine days. At the final meeting, the store manager said plaintiff was expected to carry out her duties or she would face discipline up to and including termination. She was also informed that rather than continue as bakery manager, the plaintiff could step down. Plaintiff believed that this meant she should step down from her position.

 

Shortly after the final meeting, plaintiff clocked out and began medical leave. In plaintiff’s medical forms, her Dr. specified she needed leave in order to avoid undue mental distress and undergo surgery. Within a week of starting that leave, plaintiff complained about her experiences with her store manager using Kroger’s hotline. She alleged that the store manager knew she had breast cancer but harassed her anyway. She emphasized on the hotline that the store manager threatened discipline and after being informed by the plaintiff that she was going on medical leave, told the plaintiff that it might be a good time for the plaintiff to think about stepping down.

 

Plaintiff’s doctor initially estimated that plaintiff would return to work on March 28, 2018. However, by March, plaintiff still had a 10 pounds lifting restriction in place. So, Kroger extended her leave for a few more months.

 

Plaintiff returned to work on June 11, 2018, without restrictions. Despite four months having passed, things between the plaintiff and her store manager continued where they left off. In the store manager’s view, plaintiff still wasn’t meeting expectations. Plaintiff said she was struggling and needed some time to get back to normal. She also told the store manager that she had worked 53 hours her first week back, which was very hard on her physically. She also mentioned that she was trying to get the hang of Kroger’s new program. In response, store manager asked who approved her overtime. She also noted that business is business. Finally, she said that if things continued, plaintiff could be disciplined or fired. Alternatively, plaintiff could step down. Plaintiff at first agreed to step down but then changed her mind and left the meeting.

 

Over the next week, other employee got involved. One of plaintiff’s supervisors advised her that the store manager could not force her to step down. That supervisor and a coordinator from HR also agreed to give plaintiff more training. Subsequently, the HR coordinator talked with the plaintiff and the store manager. Finally, plaintiff heard from a few bakery department employees who said that the department needed both more help and to be more organized.

 

On June 26, 2018, plaintiff stepped down. She first transferred to a different department but ultimately, ended up working as a bakery clerk at a different Kroger with a lower salary and less authority. Plaintiff then turned to legal action by filing a claim with the EEOC and receiving a right to sue letter. When the District Court granted summary judgment for Kroger, she appealed.

 

 

 

II

What Is Sufficient Notice from an Employee That a Reasonable Accommodation is Needed

 

  1. In a failure to accommodate claim, a plaintiff has to provide direct evidence of discrimination. That is, plaintiff has to show that she requested an accommodation and that her request was objectively reasonable.
  2. There is no bright line rule for determining whether an employee requested an accommodation. Instead, one has to generally assess whether the employee communicated the need for an adjustment at work because of a disability and context matters.
  3. Plaintiff’s following statements could arguably be considered a reasonable accommodation request for reduced work schedule: 1) that she needed some time to get back to normal; 2) that she was struggling; 3) that the job was hard for her physically; and 4) that she had worked 53 hours the week before and wanted the chance to get used to all the work again In fact, the lower court essentially said that these statements were a request for a reduced work schedule .
  4. She also tied those statements her disability. In particular, plaintiff had recently undergone breast cancer surgery and was on medical leave for four months, which was information the store manager knew. Also, the meeting with the store manager occurred within one week of plaintiff returning to work. So, plaintiff did not have to say that she was tired because of her recent surgery as Kroger should have made that reasonable inference.
  5. Plaintiff’s comments provided just enough information in context to raise a triable issue, and Kroger has not shown that the evidence is so one-sided that a jury could only rule in its favor on this point.
  6. Kroger did not ask plaintiff to provide more medical documentation, which it could have done if it thought that her lingering issues may not be genuine.
  7. It doesn’t matter that plaintiff had an earlier note saying that she could return to work without restrictions because to hold otherwise, would relieve the employer from providing accommodations whenever an employee returns without restrictions when restrictions later prove necessary.
  8. In a summary judgment motion, the record must be construed in the light most favorable to the nonmoving party and not to the moving party.

 

III

When Is an Accommodation Reasonable

  1. Whether a person makes a reasonable accommodation request is a question of fact.
  2. An employee has to show that the proposed accommodation is reasonable on its face. In other words, the question is whether plaintiff’s accommodation request is reasonable in the general run of cases.
  3. Modified work schedules are a classic example of a reasonable accommodation and are explicitly covered in the ADA at 42 U.S.C. §12111(9)(B).
  4. Accommodation is reasonable only if it addresses a key obstacle preventing the employee from performing a necessary function of the job.
  5. Plaintiff’s proposed accommodation would help her effectively perform her job. Her key obstacle was fatigue. Plaintiff was tired and exhausted. She told the store manager that the job was hard for her physically after having worked a 53 hour week the week before. As a bakery manager, she had to lift items weighing more than 10 pounds. A way to combat fatigue would be less work. A reduced work schedule would provide the plaintiff with more time to recuperate and allow her to get acclimated to her job’s physical demands.
  6. Whether Kroger’s argument that plaintiff resigned before engaging in an interactive process will carry the day is a fact intensive issue that needs to be addressed by the lower court on remand.
  7. The constructive discharge claim fails because plaintiff cannot show objective intolerability of the work environment and no reasonable jury could find otherwise. So, without an adverse employment action, plaintiff’s disability discrimination and retaliation claims fail.

 

 

 

IV

EEOC Charges Are Important

 

  1. While plaintiff filed her EEOC charge pro se, she did not check the box for retaliation in the charge. Her charge also lacked facts that would put the EEOC or Kroger on notice that she intended to pursue a retaliation claim. While her precharge inquiry form spoke of retaliation, that form is not a charge under title VII.

 

V

Thoughts/Takeaways

 

  1. I haven’t seen before a court saying that failure to accommodate claims require direct evidence in the way that term is used when dealing with the McDonnell Douglas paradigm in summary judgment matters. Kind of strange to refer to it that way considering, as even this court noted, that magic words are not required. Not only are magic words not required, context can make for a reasonable accommodation request. So, I would be very careful about this “direct evidence,” language in the opinion.
  2. To this court, the standard for requesting a reasonable accommodation and requiring the start of the interactive process, turns on a general assessment of whether the employee communicated the need for an adjustment at work because of a disability given the particular context. That is certainly one way to look at it. I think looking at it that way is unnecessarily complicated. I prefer the formulation that an employee only has to provide the employer with enough information so that the employer can be fairly said to know about the disability and the desire for an accommodation. EEOC v. Crane Automotive Holdings LLC (E.D. AR, 4/11/19). I don’t think that the two formulations are all that different from each other because context obviously matters in both formulations, rather the former is just unnecessarily complicated.
  3. An employer always has the right to insist on reasonable documentation to support a reasonable accommodation request. However, that request needs to be narrowly focused and not a fishing expedition or a means of discouraging a person with a disability from making such a request.
  4. The record in a summary judgment motion must be construed in the light most favorable to the nonmoving party.
  5. Whether a person makes a reasonable accommodation request is a question of fact.
  6. I see the phrase “general run of cases,” all the time. I have no idea what it means.
  7. There is an implication in this decision that a failure to accommodate claim does not require an adverse action. As we discussed in this blog entry, it is certainly headed that way.
  8. You don’t have to hire a lawyer to file an EEOC charge. However, as this case makes clear, it is very helpful if you do as there are traps a person could otherwise fall into.
  9. 100% return to work policies are not advisable. See this blog entry.
  10. I can’t tell you how often I have seen new supervisors cause problems. Companies need to have training (training is a huge part of my practice), programs in place for supervisors and those programs should not be just a one time thing.
  11. The court’s reasoning about when an accommodation will be deemed reasonable is actually very plaintiff friendly. We have previously talked about whether what is being accommodated is the disability or whether it is the essential functions of the job (see here for example). This court’s formulation for the test of when an accommodation is reasonable essentially splits the difference. In particular, an accommodation is reasonable only if it addresses a key obstacle preventing the employee from performing a necessary function of the job. The “key obstacle,” language is very significant because it doesn’t necessarily relate to an essential function of the job but rather to an obstacle to performing a necessary function of the job. The two are not at all the same thing. For example, this formulation would make a big difference in cases where the employer argues that a particular accommodation does not relate to the job’s essential functions. With this court’s formulation, that isn’t the issue. The issue would be whether the accommodation removes an obstacle to performing necessary functions (i.e. essential functions of the job). An accommodation relating to an essential function of the job and an accommodation relating to removing an obstacle to performing essential functions of the job are not at all the same thing. For example, a service animal may have nothing to do with the essential functions of a particular person’s job but without the service animal, the person could not do the job certainly not to their abilities. That is, a service animal removes all kinds of obstacles to doing the necessary functions of the job. The service animal is what comes to mind immediately, but I undoubtedly could come up with other examples as well with respect to the distinction between relating to an essential function of the job and removing an obstacle to performing an essential function of the job. Yanick’s formulation of when an accommodation is reasonable means that service animals would always be a reasonable accommodation. It would also make for interesting litigation with respect to an emotional support animal. Remember, the EEOC, unlike DOJ, has nothing with respect to service animals or emotional support animals in its final regulations.
William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during…

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.