Labor & Employment Law Daily By unilaterally walking away after four months, plant employee caused breakdown of ADA interactive process
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Thursday, November 12, 2020

By unilaterally walking away after four months, plant employee caused breakdown of ADA interactive process

By Kathleen Kapusta, J.D.

The employee provided substantive reasons as to why the employer’s proposed temporary accommodation was unreasonable, but that did not entitle him to walk away.

Although a manufacturing plant employee, who suffered from depression, anxiety, and anorexia, and who requested as an accommodation to work either a day shift or a night shift instead of rotating between the two, established a fact dispute as to whether working rotating shifts was an essential job function, his employer was nonetheless entitled to summary judgment on his ADA claim. Even if its offer to temporarily take him off of the rotating shift was unreasonable, he caused a breakdown in the interactive process when he resigned before giving the company an adequate opportunity to consider an alternative, a federal district court in Alabama explained. The employee’s retaliation claim failed as well (Cooke v. Carpenter Technology Corp., November 9, 2020, Kallon, A.).

As an ultrasonic technician for the stainless steel manufacturer, the employee’s job was to certify that the company’s product was not defective. The plant where he worked operated around the clock and the employer, to maintain morale, required all employees in that unit to rotate between day and night shifts.

Diagnosis. Although he did this for two years without incident, in May 2017, the employee started having suicidal thoughts and “starving himself.” Encouraged by his superiors to seek psychiatric treatment, he was diagnosed with depression, anxiety, and anorexia. He also applied for FMLA leave, and when that expired, he applied for short-term disability.

Doctor’s letters. In November, facing financial hardship, the employee asked to return to work. In response to his employer’s request, he provided two letters from his doctor; the first said he would benefit from a consistent work schedule and the second recommended that he not return to a swing shift. Unsure whether this was a restriction, HR suggested that he apply for long-term disability. His application was denied for over a month, however, because he failed to provide the necessary updated medical documentation. In January 2018, he finally provided a letter stating he could return to work “with the restriction of working a consistent work schedule.”

In discussing the employee’s limitations with his supervisor, HR noted that the company had to be “very careful about making accommodations” to the rotating shift schedule because other workers had requested accommodation for nonmedical reasons. Although the employee’s supervisor agreed that the company had “gotten away from people not having to rotate,” he talked to the employee’s coworkers, who were all willing to swap shifts with his so he could work only nights.

Temporary accommodation. Nonetheless, the company offered the employee the ability to work a straight shift for 30 days only. He would then have to take leave until his condition precluded him from rotating. Because he had exhausted his leave, he would have to return to rotating shifts at the end of the 30-day period or be terminated if his medical restrictions remained.

Resigned. Because the employee’s doctor refused to release him to return under the temporary accommodation, HR told him it needed a little more time to provide an answer. The employee followed up several days later, but HR again said it needed more time. When he was unable to get a response from HR the next day, the employee, having reached the “financially critical level,” resigned and accepted another job.

Failure to accommodate. Moving for summary judgment on the employee’s ADA failure-to-accommodate claim, the employer argued that the employee was not a qualified individual because rotating shifts was an essential job function he could not perform. Although it argued that rotating shifts were essential because of the plant’s need to operate around the clock to meet business demands, the court pointed out that if “some employees worked only day shifts, and other employees worked only night shifts, the plant could still operate continuously and meet its customers’ demands.”

Fairness and morale. As to the employer’s assertion that it required rotating shifts to promote fairness and maintain employee morale, it allowed employees to voluntarily swap shifts, at least on a temporarily basis.

Job description, work experience. Turning to the employer’s written job description, while rotating shifts was not mentioned in that, the court noted that the company did tell new hires that rotating shifts were required. But, the employee argued, the company allowed other employees to work non-rotating shifts for periods of longer than 30 days. While two of three employees he pointed to worked in other departments, there was no indication their jobs were materially different than his, said the court, and the third purportedly worked in the same department.

Also rejected was the employer’s contention that because other courts have found rotating shifts to be essential in other jobs, the court here had to rule the same way. The essential function inquiry is evaluated on a case-by-case basis, the court observed, and the ADA itself mentions “modified work schedules” as an example of a reasonable accommodation. Thus, a fact issue existed as to whether rotating shifts was an essential function of the employee’s position.

Interactive process. Next, the employer argued that the employee disrupted the interactive process by quitting before it could adequately respond to his accommodation request and by declining its offer of a temporary accommodation. Although the employee claimed the employer’s failure to provide a reasonable accommodation within four months demonstrated bad faith, the court noted that the temporary accommodation “was not necessarily unreasonable when offered.” While his doctor refused to release him under that accommodation, none of the doctor’s three earlier letters required that the accommodation be permanent, said the court, and two, including the last one, explicitly referenced a “transition period,” which implied a temporary arrangement.

Even assuming it was unreasonable, the employee did not give the employer sufficient time to consider an alternative. While he complained about the four-month delay, some of that resulted from confusion over his doctor’s letters as well as his failure to submit an updated letter until a month after the employer requested one. When the employer received the updated letter, it contacted the employee a week later, explained it could not offer a permanent accommodation, and requested more time to consider a response. “Rather than wait, [the employee] simply resigned six days later.”

And although the employee provided substantive reasons why the temporary accommodation was unreasonable, “that did not entitle him to walk away,” the court stated, noting he unilaterally terminated the process because he felt it was progressing too slowly. Thus, the court granted summary judgment against this claim.

ADA retaliation. As to the employee’s claim that the employer retaliated against him for requesting accommodations by denying his requested accommodation and forcing him to resign, the court noted that while requesting accommodations qualifies as protected activity under the ADA, denying the requested accommodations cannot itself be the adverse employment action. Although the denial of an accommodation can amount to a constructive discharge, which would be an adverse action, the employee abandoned his constructive discharge claim and thus this claim also failed.

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