By Brandi O. Brown, J.D.
If it had investigated, HR would have learned that another employee performing the same job had been provided for years the same accommodations and to an even greater extent than what the plaintiff had requested.
A longtime employee of an automotive parts manufacturer who took leave because of orthopedic injuries, was denied accommodations, and then was fired, will be able to present his claims under the ADA and FMLA to a jury, a federal district court in Tennessee ruled. Multiple requests for accommodation were denied without investigation by HR to determine if they were possible, including a request to be allowed to sit for 50 percent of the time for a specified number of weeks. There was also evidence that the employer took into account his use of FMLA leave in deciding to terminate him. The parties’ cross-motions for summary judgment were denied (Lowe v. Calsonickansei North America, Inc., May 13, 2020, Campbell, W., Jr.).
Leave extended. Twenty-seven years after he started working for the employer, the employee’s back and knee pain led him to take medical leave. He worked as a production technician on the airbag press doing work that included trimming excess plastic from airbag covers, weighing parts, and then placing them into a bin. While he was on leave he also broke his foot, which required extended leave time, as did surgery on his knee. His need for leave, which started in May 2016, continued until the beginning of the following year.
Not allowed to return. On February 1, his physician released him to work with light duty restrictions. Those restrictions included the need to sit 50 percent of the time for a period of six weeks. When HR received the note, the representative told the employee that he would not be provided with work that accommodated his restrictions because his injury was not work-related and the restrictions were temporary. He remained on leave, but continued to attempt to return to work. He submitted four more doctor’s notes with the same restrictions over the following three months and was denied each time.
In May the employee advised the HR representative that he expected to be released from restrictions in June. However, just prior to his return he underwent an emergency appendectomy. Although the HR representative sent medical leave paperwork to the employee’s doctor, she and her supervisor determined that the employee had exhausted the maximum time available under the employer’s medical leave of absence policy (12 months). They also determined that they could not approve his request for medical leave because it exceeded the two requests (in a 12-month period) permitted under the policy.
Fired, no investigations. The employer administratively terminated the employee. Prior to that time there was no discussion of the ability of the employee to return to work with an accommodation, either with his supervisor or the safety management team. There were also no discussions of whether the accommodation he requested would be an undue hardship or cost prohibitive. They also did not review his job duties or check to see if other workers in his area were allowed to sit during shifts. He filed suit alleging violations of the FMLA and ADA and both parties moved for summary judgment on all claims. They were denied.
Accommodation under ADA. Perhaps the most influential common denominator leading the court to deny the parties’ cross-motions for summary judgment with regard to the employee’s ADA claims was the existence of another employee in the same position, with similar orthopedic issues, who received accommodation. That employee was allowed to sit 100 percent of the time. With regard to the employee’s claim for failure to accommodate, the employer argued that the other employee had a helper who carried the covers to the bins and that having a coworker perform that function for the employee was not a reasonable accommodation.
However, the court noted that the employee had not requested a helper and that his proposed accommodation was to be allowed to sit only 50 percent of the time. The employee met his burden, therefore, of showing that his proposed accommodation was reasonable on its face. That evidence was also key in highlighting a dispute over whether standing and walking were essential functions of the position and whether the walking required was as extensive as the employer claimed. Thus, the court found that there were genuine issues of material fact regarding the essential functions of the position.
Interactive process. The existence of that other employee and the accommodations she was afforded also came into play in another key aspect of the court’s decision, i.e., evidence that the employer failed to engage in an interactive process to determine how best to accommodate the employee’s disability. The employer argued that providing him with medical leave was a reasonable accommodation. However, the employee presented evidence that it did not engage in an interactive process, but instead made a unilateral decision.
Here, HR did not consult with the employee’s supervisor or others and it did not check to see if other workers in his area had received similar accommodations. It also did not observe someone performing the job in question to make an assessment. The employee also presented evidence that the employer gave little time to the accommodation requests presented: it ignored one request, rejected one in three minutes time, and rejected another in only 1.5 hours. With this evidence, the court concluded, a reasonable jury could conclude that it did not engage in the interactive process.
Direct evidence. With respect to the employee’s claim of discriminatory discharge, the court explained that when a discriminatory discharge claim is premised on a failure to accommodate it necessarily involves direct evidence because failing to provide a reasonable accommodation constitutes such evidence. Thus, because the court had already found material questions of fact with regard to the accommodation claim it denied summary judgment on the discharge claim. Direct evidence was also the key to its denial of summary judgment on the employee’s FMLA claim. It was undisputed that the employer counted the employee’s use of FMLA leave against him under its leave of absence policy. Summary judgment was denied.
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