December 2001 - General Employment

Ed. Note: The first two cases this month, Kvorjak v. State of Maine Department of Labor and Jewell v. Reid's Confectionary Company, discuss the employer's role in the reasonable accommodation process under the Americans With Disabilities Act, and Jewell warns that employers may be held accountable for not fully engaging in the process.

Kvorjak v. State of Maine
Department of Labor
259 F.3d 48 08/09/2001
COFFIN

Employer did not have to provide reasonable accommodation of allowing the employee to work at home where the employee could not perform all the essential functions of his job at home.

Employer's categorical denial of employee's RA request, without engaging in interactive process, does not automatically constitute failure to provide reasonable accommodation.

The Court, with one judge dissenting, affirmed the district court's ruling that the employer did not have to perform reasonable accommodation in the form of allowing the employee to work at home.

The plaintiff has partial paralysis and other physical problems, including incontinence and trouble walking, due to congenital spina bifida. For 22 years he worked for Maine state agencies, the last seven with the Department of Labor's Division of Unemployment Field Services as a claims adjudicator. His office was a 10-minute commute from his home until 1997, when the Division closed some field offices and shifted services to regional call centers. The plaintiff indicated that he would be able to work at a call center, with Bangor as his main choice. After trying out the 90-minute commute to Bangor for two days, however, he realized he could not physically handle it. He then applied for a disability pension and asked that he be allowed to use sick leave until his request was processed. When the state denied his request, he asked if he could work at home on a full-time, permanent basis. He included a letter from his doctor stating that this would be "highly appropriate and medically indicated."

The Department denied the request, stating that the commute to work is not a "a covered activity under [the] ADA." It added that it had denied all other employee requests to work at home. It offered to pay relocation costs and temporary housing if the employee moved closer to a call center. When the plaintiff rejected this offer, he was laid off. That day, the director of human resources offered to help him find another local job. Several months later the department notified the plaintiff of an opening in the Bangor office, but plaintiff again requested to work at home. Again, he was denied.

The plaintiff then filed complaints with the Maine Human Rights Commission based on the original layoff and the offer to reinstate. The MHRC found reasonable grounds for a case, and the plaintiff filed suit in district court, asserting that the state's failure to accommodate his request violated state and federal disability laws. The district court granted summary judgment to the state and the appeals court affirmed.

The Court first held that the employer's categorical denial of the employee's request for accommodation, and its failure to engage in an informal, interactive process regarding this, did not automatically constitute a failure to provide such accommodation. Judge Coffin found that the case did not show the "extreme failure to engage in meaningful dialogue" that the plaintiff portrayed. He noted the employer had rejected other employees' requests to work at home and had a legitimate concern that granting the plaintiff's request would set an unwanted precedent. The employer also did communicate by offering to help the employee find other jobs and by notifying him of the Bangor opening as well as one in Rockland (following the MHRC's decision). Judge Coffin stated that both parties could have shown better communication skills, including engaging in a face-to-face discussion, which was never done. He concluded, however, that though the state's behavior "was not ideal," it was not of the egregious nature required for an ADA violation.

The Court also found that reasonable accommodation discussions between the employer and employee would have been "of no moment," because the record showed that the employee could not perform his job at home, even with reasonable accommodation. Judge Coffin stated that without evidence of discriminatory animus, the Court gives substantial weight to the employer's opinion on essential functions. Other evidence to be considered includes written job descriptions and the work experience of the current employees. The Court looked at a "Task Statement" listing the duties of claims adjudicators and a list entitled "Essential Functions of a Claims Adjudicator."

Judge Coffin found the employee's arguments persuasive that he could perform the adjudicator functions of his job at home, including telephone interviews and writing decisions. He found, however, that he could not effectively perform the advisor functions of his job at home. These functions included training other staff members, advising other individuals, and serving as Adjudicator of the Day one day a week, which required collaboration with other staff members in reviewing materials in the office. The employee failed to rebut the employer's claim that the advisor function was an essential part of his job.

Judge Coffin dismissed the cases of two state employees who had been allowed to work at home as "significantly distinguishable" from this case, because those employees were not claims adjudicators and were only working home temporarily until the employer constructed an allergy-free environment for them.

Senior District Judge Schwarzer dissented. He found it problematic that the state had decided to dismiss the plaintiff's request without first considering whether a reasonable accommodation could be worked out. The state simply denied his request out of hand as not a covered activity under the ADA and did not proffer any material on reasonable accommodation until it filed its motion for summary judgment. Judge Schwarzer found this violated the ADA's prescription for both parties to communicate when dealing with RA requests and that this failure was not "of no moment," as the majority found. He stated that the employer must make reasonable accommodations unless it demonstrates that they would pose an undue hardship, and whether this was so presented a triable issue of fact. He added that it was also a triable issue whether or not the employer complied with the ADA by rejecting the RA request without engaging in an interactive process about it.

Jewell v. Reid's Confectionary Company
__F.Supp.___ 11/21/2001
SINGAL

An employee may maintain a cause of action under the Americans With Disabilities Act to require reasonable accommodation even in cases of perceived disability alone.

Upon return from a family or medical leave, reinstatement is not required if the employee cannot perform the essential functions of his former job.

The Court discusses reasonable accommodations for individuals merely perceived as being disabled.

The employee, a delivery driver, stopped working after he suffered a heart attack in 1999. Following a second attack a month later, he had a defibrillator implanted in his chest. Because of the defibrillator, his driver's license was suspended until February 2000. He assured the employer that he intended to return and wanted his position to be kept open. His supervisor assured him they would "find some work for him to do."

The employee's doctor released him to work in November, while his driver's license remained under suspension. His supervisor told him that no work was available. However, the supervisor then contacted the doctor on his own about the employee's work fitness, and was told the employee's health was excellent and he could do everything in his former job except drive. The supervisor pressed the doctor about whether the defibrillator might cause a problem with electromagnetic fields at work. While awaiting an answer, he again told the employee there was no work for him. The employee was discharged. Two weeks later, the doctor wrote the supervisor that there would be no electromagnetic problems, but the employer failed to offer the employee a job anyway.

In April 2000, the employee filed a complaint with the Equal Employment Opportunity Commission and Maine Human Rights Commission alleging discrimination under the Americans With Disabilities Act, the Maine Human Rights Act, and the state and federal Family and Medical Leave Acts. The employer moved to dismiss the claims on three grounds: (1) The employee was not a "qualified" individual with a disability under the ADA because he did not possess a driver's license, a requirement for the job; (2) He was not entitled to an accommodation under the FMLA and could not perform the essential functions of his job, a prerequisite for mandating return to work under the federal FMLA; and (3) The FMLA claims were barred because his request for reinstatement came too late.

The Court first found that the employee had a disability under the ADA. Judge Singal stated that having a heart condition is not per se a disability, as the Court must make a case-by-case inquiry into alleged disabilities. While the employee did not meet the first two potential bases for establishing a disability under the ADA - that he has an impairment that substantially limits a major life activity or a record of substantial impairment - he met the third one, which is that the employer perceived him as having a substantial impairment. Judge Singal based this on the fact that the employer did not hire the plaintiff back for any job, showing that it did not consider him fit for any type of work.

The Court next found that the employee was a "qualified individual" under the ADA, meaning he could perform the essential functions of a job he holds or desires, with or without reasonable accommodation. Thus, plaintiff only had to allege that the employer had other jobs that he could perform, which he did allege. The employer argued that it was not required to provide reasonable accommodation by reassigning the employee, because RA is not mandatory for individuals who are regarded as being disabled but who are not in fact disabled. Judge Singal stated that this theory has some support in other federal circuits, but the First Circuit has held that an employee may maintain a cause of action to require reasonable accommodation even in cases of perceived disability alone, Katz v. City Metal Co. (87 F.3d 26, 1st Cir.1996). The judge disagreed with the employer and other circuits that it would be bizarre to require an employer to discuss accommodations with a nondisabled employee.

As Judge Singal stated, the goal of the RA provision is an interactive process between the employer and employee. Where the employer does not engage in the process, and thus does not learn the facts about the employee's seeming disability, it is not improper to hold the employer accountable for its inaction. Judge Singal added that the employee, at this stage of the proceedings, did not have to allege specific jobs to which he could have been reassigned.

Finding that the plaintiff was a qualified individual with a disability under the ADA, and that the employer's termination of him might constitute an adverse employment action, the Court allowed the plaintiff's claim of discrimination under the ADA to proceed past the pleading stage. Because the Court does not distinguish between the ADA and the MHRA in scope and intent, Judge Singal also allowed the MHRA claim to proceed.

The Court did dismiss the employee's claims under the state and federal Family and Medical Leave Acts. While these acts mandate reinstatement to the same or an equivalent position upon return from leave, reinstatement is not required if the employee cannot perform the essential functions of his former job. The employee lost his right to be returned to his driving job because he did not have a driver's license at the time he sought reinstatement. Judge Singal also found that, unlike the ADA, the FMLA does not have a reasonable accommodation provision which requires the employer to assess the employee's fitness for other positions.

The employee argued that the FMLA regulations allow employees returning from leave a reasonable time in which to renew a license or regain other certification. As Judge Singal pointed out, however, this regulation applies to employees who lost their license due to the leave, not due to their medical condition. He also did not find it reasonable to make the employer wait three months for the plaintiff to regain his driver's license.

Finally, the Court dismissed the Maine FMLA claim as untimely. The statute allows 10 consecutive weeks off for a medical condition, but the employee did not seek reinstatement until more than 11 weeks after leaving work.