By Nicole D. Prysby, J.D.
Because fact questions remained as to whether an employer failed to engage in the interactive process after a store manager requested a permanent scheduling accommodation, the manager survived the employer’s motion for summary judgment on his failure-to-accommodate claim under the ADA. The employee’s doctor had recommended that he not be scheduled to work more than nine hours per day, five days per week. The employer took that to mean the employee could not work more than 45 hours per week and would not permit him to return to work until the accommodation request was resolved. Even after the employee clarified that he could work additional hours beyond what was scheduled, the employer insisted that the store manager position required availability to work extra hours with no notice, and that the employee could not meet that requirement. But the federal district court in Maine found there was at least a question of fact on this point because the employee had averaged only about 46 hours per week, so his requested accommodation might not be unreasonable. The employer’s suggested accommodation—a demotion to assistant manager and a pay cut—may not have been reasonable, as the amount offered to the employee was less than the pay offered to other assistant managers. The employee’s ADA discrimination and retaliation claims also survived (Bell v. O’Reilly Auto Enterprises, LLC dba O’Reilly Auto Parts, April 19, 2018, Levy, J.).
The employee suffered from ADHD, Tourette Syndrome, and depression. He worked an average of about 46 hours per week. In May-June 2015, he worked very long hours over a two week period and began experiencing symptoms such as dizziness, increased tics, headaches, and fatigue. His healthcare provider completed the employer fitness for duty form and indicated that he should not be scheduled to work more than nine hours per day, and five days per week. The employer did not want him to return to work until it made a decision on the accommodation request. His manager took that to mean that the employee could not work more than 45 hours per week and he expressed concern that the accommodation request was incompatible with the employee’s duties as a store manager.
Additional hours. The employee checked with his healthcare provider and clarified that he could work some additional hours, so long as his scheduled work time was limited to 45 hours per week. The employer believed that the restrictions were unreasonable, because if the employee unexpectedly worked a long shift, he might be unavailable the next day. Instead, the employer offered the employee a different position, that of assistant store manager, which would have involved less responsibility and lower pay. The offered pay was disputed (either $10 or $11 per hour) and the employee told the employer that assistant managers in comparable markets were paid $15 per hour and that he needed at least $13. They did not come to an agreement, and the employee viewed himself as fired, while the employer took the position that he voluntarily resigned.
Failure to accommodate. The employer asserted that an essential function of the manager position was the ability to work long hours on short notice. The employee pointed out that availability on short notice during unscheduled hours is not listed as an essential function in the written job description. The court agreed with the employer that the need to work long unscheduled hours was an essential function; the employee had always been aware that it was a requirement, even if he did not have to do so frequently. The court did, however, find that there was a question about whether the employee could perform that function. He had indicated to the employer that he could work beyond 45 hour, as long as his scheduled hours were limited to 45. Because the employee had worked, on average, 46 hours per week, with only a two-week period with far greater hours, his proposed schedule was not vastly different than the schedule he had been working. A reasonable jury could find that his requested accommodation would have permitted him to work the extra hours.
The court also found that the employer had failed to engage in the interactive process. It had initially misunderstood the accommodation form to mean that the employee could only work 45 hours per week and did not contact the healthcare provider to clarify. Therefore, summary judgment was denied on the failure to accommodate claim.
Discrimination. The employee argued that not being allowed to return to work until his accommodation request was resolved and being effectively terminated when offered alternate positions with lower pay was direct evidence of discrimination. The court agreed that there was a triable issue on this point. The court also found the employee had presented sufficient circumstantial evidence of discrimination, in that the amount he was offered for the assistant manager position as less than the employer paid other assistant managers.
Retaliation. The employee argued that his exclusion from work and termination were in retaliation for requesting a permanent scheduling accommodation. The court found that the employee had requested an accommodation and had been subjected to an adverse employment action. There was also a causal connection, as the employer admitted that it did not permit him to return to work until the accommodation request was resolved. On the pay issue, the employer argued that it had a legitimate reason for offering the employee less money than other assistant managers—the store at which the employee worked was less profitable—but the court rejected that argument because the employer was willing to and actually did pay more than $11 per hour to hire an assistant manager for that store.
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