The employee also failed to convince the court that Lowe’s violated the ADA when it refused to reassign him to another director-level position.
Rejecting an employee’s assertion that Lowe’s forced him out of his director-level job and refused to reassign him to another comparable position after several knee surgeries restricted his mobility, the Fourth Circuit, affirming summary judgment against his ADA claims, found that no reasonable accommodation, consistent with his doctor’s order, would have allowed him to perform his job’s essential functions of walking, driving, and working more than 40 hours a week. Nor did the Supreme Court’s Barnett decision require his reassignment, said the court, noting that the decision instead requires “preferential treatment be extended as necessary to provide” disabled employees “with the same opportunities as their non-disabled colleagues” (Elledge v. Lowe’s Home Centers, LLC, November 18, 2020, Wilkinson, J., III).
The employee, who began working for Lowe’s in 1993, was promoted numerous times over the years, ultimately becoming a Market Director of Stores (MDS). In that position, he oversaw a dozen stores, ensuring that they complied with corporate quality standards and made a profit. During his 10 years as an MDS, his stores performed well. To maintain the high levels of compliance and performance, he typically visited two stores each day and worked between 50-60 hours a week, which entailed considerable walking and driving.
Knee surgeries. In December 2014, he underwent the most serious of four surgeries on his right knee. He returned to work with restrictions that he walk no more than four hours a day and work no more than eight. Lowe’s agreed to a light-duty work schedule and offered him a motorized scooter to help during store visits, which the employee refused to use. He did arrange, however, for lower-ranking colleagues to drive him to and from the stores.
Permanent restrictions. When Lowe’s, after renewing his accommodations, learned that the employee would be issued a permanent disabled parking permit, it asked his doctor whether the restrictions were permanent. In response, the doctor replied “I rec these be permanent restrictions.” Lowe’s regional HR director and a store operations VP then met with the employee regarding other potential career opportunities at Lowe’s, including a less physically demanding managerial role.
Rejected. Because he was not interested in a lower-paying position, the employee applied for two other director-level positions, Merchandising Director of Lawn and Garden and Merchandising Director of Outdoor Power Equipment. When his applications were rejected under Lowe’s succession planning and best hiring policies, he accepted a severance package and early retirement.
Lower court proceedings. He then sued under the ADA and the district court, granting summary judgment to Lowe’s, found he failed to show he was a qualified individual under the statute.
Essential job functions. On appeal, the Fourth Circuit first found “no reason to doubt the district court’s conclusion that the essential functions of the MDS position included: (1) standing or walking in excess of 4 hours each day; (2) travelling to all supervised stores; and (3) working in excess of 8 hours each day.” The official MDS job description, observed the court, states that a candidate for MDS must be capable of walking “frequent[ly],” defined as “34%–66%” of working hours, and driving “continuous[ly],” defined as “67%–100%” of working hours. Thus, said the court, an MDS “must possess the mobility and stamina to handle days in which his job requires him to walk 66% of the time, as well as those days in which he must drive almost without ceasing.”
Walking and driving. While the employee argued that the job’s true mobility-related requirements are determined only by the bottom figure of the listed ranges, he admitted that coaching store managers in person, maintaining visibility and accessibility, and conducting store-walks to maintain quality standards were integral to an MDS’ role. Further, the court observed, maintaining responsibility for 12 stores was not possible without significant amounts of driving and walking. Indeed, the employee testified that he usually spent between three and four hours on each store visit and, in a normal week, conducted two visits every day. Further, his supervisor testified that MDSs could take up to five hours to conduct a single store visit and most visited two stores each day.
40 plus hours a week. Thus, not only were walking and driving essential to the employee’s position, said the court, so was the ability to work in excess of eight hours each day. The employee acknowledged that before his surgery he worked between 50-60 hours per week and other senior Lowe’s officials confirmed that was the norm for MDSs.
Qualified individual. Turning to whether the employee was a qualified individual under the ADA, the court noted that whether he could perform the essential functions of his job with reasonable accommodation depended on “what counts as a ‘reasonable accommodation’ under the ADA.” While the employee argued that he could perform his job’s essential functions with the accommodations Lowe’s had provided—a light work schedule and use of a motorized scooter—the court pointed out that he did not always comply with his doctor’s orders regarding his schedule; he estimated that he flouted his light-duty restrictions about 25 percent of the time. Nor did he ever use the motorized scooter to assist him in his store walk throughs. Moreover, he had lower-ranking associates drive him back and forth on his store visits.
“His manifest need to disregard his physician as well as to seek informal accommodation outside the interactive process created a situation that Lowe’s could reasonably assume had limited long-term potential,” the court stated, finding no reasonable accommodation could have sufficed. Further, with no signs of improvement in his condition, Lowe’s could not have been expected to extend these accommodations indefinitely. As to the possibility of formalizing his arrangement to have other employees drive him to his stores, “employers do not need to change a job’s essential functions or split them across multiple employees.” Thus, the court found no reasonable accommodation, consistent with his doctor’s orders, would have allowed the employee to perform his job’s essential functions.
Reassignment. As to whether the employee could have been reasonably accommodated by reassignment to one of two director-level positions he identified, the court noted that “other circuits, as well as the interpretive guidance of the EEOC, persuasively recognize reassignment as an accommodation of ‘last resort.’” Not only does this protect an employer’s discretion over hiring, it encourages employers to take reasonable measures to accommodate disabled employees in the positions they already hold and bolsters the confidence of their coworkers that a colleague’s misfortune will not unfairly deprive them of opportunities for which they themselves have labored.
Barnett. The employee, however, argued that the Supreme Court’s decision in U.S. Airways v. Barnett, 535 U.S. 391 (2002), required his reassignment. In that case, the Court held that “a plaintiff/employee (to defeat a defendant/employer’s motion for summary judgment) need only show that an accommodation seems reasonable on its face, i.e., ordinarily or in the run of cases.” Under this rule, the Court found that an employer’s disability-neutral, seniority-based hiring system presumptively trumped the employee’s otherwise reasonable request for reassignment.
But the employee, said the court, “reads Barnett as articulating an almost sui generis exception—the well-entrenched, seniority-based hiring system—to a general ADA norm requiring reassignment where no other reasonable accommodation is possible.” And Lowe’s best-qualifying hiring system, he asserted, did not insulate Lowe’s from its statutory mandate to reassign him to one of the identified jobs.
Disagreeing, the court explained that this reading of Barnett “recasts the ADA—a shield meant to guard disabled employees from unjust discrimination—into a sword that may be used to upend entirely reasonable, disability-neutral hiring policies and the equally reasonable expectations of other workers.” Instead, said the court, rather than requiring employers to construct preferential accommodations that maximize workplace opportunities for their disabled employees, Barnett requires that preferential treatment be extended as necessary to provide them with the same opportunities as their non-disabled colleagues. Further, Barnett stressed the value of stability in employee expectations as the most important reason justifying the precedence of the employer’s seniority based system over the disabled employee’s otherwise valid right to reassignment.
Disability neutral. “Just as these principles jointly justified the Court in upholding the integrity of the seniority-based hiring system at issue in Barnett, they justify upholding the integrity of Lowe’s practices as well,” said the court, finding Lowe’s system—which examines an employee’s record of experience and qualifications as well as his performance in interview settings—is on its face disability neutral and falls “squarely within the ambit of Barnett.”
Equality of opportunity. While the employee argued that such a holding would deprive him of the equality of opportunity Barnett and the ADA guarantee, the court pointed out that Lowe’s extended reasonable accommodations to him, acting at every stage to ensure that his disability did not unfairly compromise his equality of opportunity. Further, said the court, Lowe’s accommodated the employee by assisting him with job transition. Specifically the regional HR director and VP of store operations networked on his behalf in positions in which he expressed an interest. In affirming summary judgment against his claims, the court noted that it did “not write broadly.” On the facts and record before it, the court found the employee “simply cannot claim that Lowe’s was an employer indifferent to the requirements of the ADA.”
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