Labor & Employment Law Daily Accommodation claim of Nissan employee disciplined for absences after kidney transplant revived
Monday, March 2, 2020

Accommodation claim of Nissan employee disciplined for absences after kidney transplant revived

By Kathleen Kapusta, J.D.

Citing evidence that the employee’s absences were related to his kidney transplant, the court found they did not in and of themselves render him unqualified for his position.

Although Nissan’s transfers of an employee after he returned to work following a kidney transplant—first to an “easier” job and then back to his old position—were to its “credit,” that had no bearing on whether his subsequent transfer request was unreasonable, the Sixth Circuit ruled, reversing summary judgment on the employee’s ADA failure-to-accommodate claim. Nor was the car company entitled to summary judgment on his interactive process claim as a factfinder could conclude Nissan failed to respond to the employee’s renewed requests for accommodation. The appeals court, however, refused to revive the employee’s intentional infliction of emotional distress claim (Fisher v. Nissan North America, Inc., February 27, 2020, Stranch, J.).

Go on out. The production technician, who suffered from kidney disease, worked primarily in the Nissan factory’s “Fits” rotation, attaching doors, hoods, and trunks to new vehicles. For more than 10 years, he received positive performance evaluations. When his kidney problems worsened in 2015, he talked to his supervisor about his illness and requested a transfer to an easier job. In response, his supervisor told him “I could put you somewhere, but it ain’t for this kind of stuff. You just need to go on, go on out.”

Extended leave. The employee then went on extended leave, receiving a kidney transplant in August 2016. Not only was he easily fatigued for months after the surgery, his antirejection medicines made him feel like he had “the flu every day.” Although his doctor estimated it would take a year to adjust, she cleared him to return to work two months after surgery because his leave was running out and he was told he could not return to work without restrictions.

Yes, maybe, we’ll see. Upon his return, he was placed in the “Closures” rotation, which although it was supposed to be an easier position, the employee found “10 times harder” than Fits. His requests for extra breaks or to work half-time were refused and when he asked for a transfer, his supervisor responded “yes, maybe, you know, we’ll see.” After his doctor explained in a note that he was risking his health and that he needed additional time, Nissan granted him extra leave.

Back again. He returned to work a second time in late November 2016, with Nissan granting his request to return to his Fits job. Because he continued to experience flu-like symptoms, and also needed time off for doctor’s appointments, he began to miss work and was disciplined for his absences. Each time he received a warning, he met with his supervisors and HR, discussed his kidney transplant, and requested potential accommodations, including a transfer to a job checking bolts or working in final fit.

Terminated. At a meeting with HR in February 2017, he was purportedly told “If you cannot come to work, what will moving you to another job accomplish.” He was then issued a final warning. He left the plant and never returned. A week later, he was fired. The employee sued under the ADA and state law and the district court granted summary judgment against his claims.

Failure to accommodate. After clarifying that ADA failure-to-accommodate claims are analyzed pursuant to the direct evidence test, the appeals court turned to Nissan’s assertion that the employee’s absences rendered him unqualified for his position. Noting that the employee stated that all his absences were because of his kidney, and that Nissan, in its briefing, did not dispute this, the court found his absences did not, in and of themselves, render him unqualified. “Instead,” said the court, “under Dolgencorp, we ask whether those absences could have been avoided with reasonable accommodation—or, as in Brenneman, whether no reasonable accommodation would cure them.”

Transfer. As a potential accommodation, the employee proposed a transfer to a different position. He claimed that on multiple occasions, he discussed with HR his kidney disease and need for accommodation but Nissan provided no assistance. At one meeting in which the HR representative took notes, when the employee asked for another job, he was told “If you cannot come to work, what will moving you to another job accomplish?” and then was given the final warning.

Hands are tied. He also claimed a coworker who had been injured on the job was placed in an inspection position checking bolts and hoods but when he requested the same type of job, his supervisor responded “I feel for you, but my hands are tied. You know, there is pretty much nothing I can do.” A reasonable factfinder, said the court, could find these were accommodation requests for a specific transfer and for help in identifying a job he could perform.

While Nissan correctly pointed out that his request for an “offline” worker position—in which an employee substitutes for a worker who needs to step away from the production line—was unreasonable because there was no opening for that position and he lacked the necessary seniority for it, he also identified other positions, such as checking bolts or moving to final fit. Further, he claimed he was qualified to inspect vehicles and the job was easier than what he had been doing. He further asserted that he could have been placed in that position when he requested it. Noting that the record contained no evidence to the contrary, the court found a factfinder could credit his statement that there were vacant positions available.

No undue hardship. Rather than attempting to show the transfer request would have created an undue hardship, Nissan argued that the employee’s earlier transfers to Closure and then back to Fits were unsuccessful. “This attempt to accommodate [the employee] is to Nissan’s credit but has no bearing on whether a subsequent transfer request was unreasonable,” said the court, noting that Nissan failed to show an undue hardship. Finding evidence that the employee was qualified for a vacant inspection position he identified and that he was denied help in identifying other available positions, the court reversed the grant of summary judgment on this claim.

Interactive process. As to the employee’s claim that Nissan failed to engage in the interactive process, the court pointed out that the company transferred him to Closures when he first returned to work, and then back to his Fits job when the Closures position did not work out. It also extended his leave at his doctor’s request. Thus, it was initially participating in the interactive process in good faith.

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