Injured worker’s lack of effort in alternate role breaks interactive process
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Wednesday, September 21, 2016

Injured worker’s lack of effort in alternate role breaks interactive process

By Joy P. Waltemath, J.D. Given undisputed evidence that an injured former city field supervisor/laborer did not make an honest attempt to succeed in the administrative assistant position he was placed in as an accommodation for his injuries, he could not prevail on his claim that any breakdown in the reasonable accommodation process was the fault of the city, the Fifth Circuit ruled. Nor was the employee’s eventual termination for documented misconduct and failure to perform in the administrative assistant position the result of disability discrimination under the ADA and Texas law (Dillard v. City of Austin, September 16, 2016, Costa, G.). After the field supervisor injured his back and shoulder in an on-the-job car accident, he took FMLA leave; after it expired, the city put him in its return to work program, which provides a maximum of 180 days of assistance in limited duty work or placement in an alternate position. He exhausted that program as well because he was in a "no duty" status the whole time. But the city allowed him to remain on leave, and more than a year later, when his physician released him to perform administrative duty-type work, the city put him in a temporary administrative assistant position. Administrative assistant position. The employee did not meet the listed minimum qualification for that position; he lacked any clerical or secretarial experience. He was given on-the-job typing and computer training, and he shadowed another administrative assistant. Although his supervisor urged him to complete more training, he did not do so, nor did his skills improve. Instead, "he was found playing computer games and surfing the internet, sleeping, making personal calls, and applying for other positions within the City." He also repeatedly missed work without proper notice, came late and left early, and lied about his time. Do something else? For his part, the employee admitted he was unhappy in the position, he asked HR to give him a different job, and that although he was given almost no work to do, he could not finish the work he was given because of his lack of typing skills. He also pointed out that while he was working in the administrative position, his doctors provided further releases and a functionality analysis, which expanded the list of activities he was cleared to perform, including some lifting and other physical activity. Termination. Affirming summary judgment against the employee’s claim he was terminated based on his disability, the appeals court credited the city’s legitimate nondiscriminatory reason that it fired him because of misconduct and failure to perform his duties while working as an administrative assistant. It was essentially uncontroverted that the employee was frequently absent or late, he lied about his attendance, and he used work time to play games or conduct personal business. Plus he failed to take advantage of training opportunities or learn the duties of his assigned position. And he offered no evidence that the city’s reasons were pretextual. Reasonable accommodation failure. As for the employee’s reasonable accommodation claim, the appeals court first disagreed with the district court’s reasoning that because the city could have fired the employee after he exhausted his leave under the FMLA and city policy and while he still had not been medically cleared for any work, the city’s obligation to reasonably accommodate him ceased at that time. Whether or not it could have terminated him before, because it continued to employ him, the city was obligated under the ADA to reasonably accommodate him once he was capable of returning to work. Whose failure? In the employee’s view, the city failed to participate in the interactive process after it became clear he was not succeeding in the administrative position (he did not argue that his initial placement in that position was itself a failure to reasonably accommodate). The job was a poor fit; he lacked the necessary skills and qualifications; his doctor kept reporting his improving condition and capacities, he said, so the city should have considered him for something else, including looking outside the public works department, which it did not do. But "the interactive process is a two-way street," stressed the appeals court. The employee accepted the administrative assistant position and once he did so, "it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him." But he did not do so: "Even an employee unable to perform office tasks needs no special skill to avoid misusing company time, dishonesty, falling asleep, or absenteeism." He could not argue that his failure to successfully adjust to the administrative job established a duty on the part of the city to have continued the interactive process by offering him another alternative placement. Not "destined to fail." Importantly, the court stressed this was not a case in which the employer attempted to elude its obligation to accommodate a disabled employee by giving him a job in which he was destined to fail, with or without training. Here he accepted the administrative position, and once he started, the city provided training and an experienced worker to shadow, and repeatedly encouraged him to take more training. But he showed no desire to try to succeed in that position, and accordingly the court found no basis for concluding that the city failed to engage in good faith by not finding him a new position.

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