Labor & Employment Law Daily No ADA violation in replacing Lowe’s district manager who was physically unable to visit stores following knee surgery
Monday, December 31, 2018

No ADA violation in replacing Lowe’s district manager who was physically unable to visit stores following knee surgery

By Marjorie Johnson, J.D.

A Lowe’s district manager who was replaced after his doctor indicated that his physical limitations on his ability to walk and stand following knee replacement surgery were permanent, and who eventually retired after being rejected for two director positions for which he applied, failed to defeat a motion for summary judgment on his claims of disability and age bias and retaliation. A federal district court in North Carolina determined that he was indisputably unable to perform the essential function of visiting stores, that he had rejected the proffered accommodation of using a mobility device, and that Lowe’s wasn’t required to place him in either of the two director positions, for which he was undisputedly “not the best man—or even an appropriate man” for the job (Elledge v. Lowe’s Home Centers, LLC, December 20, 2018, Conrad, R.).

The manager had worked for Lowe’s since 1993, moving up the ranks over the years. In late 2014 he underwent knee replacement surgery and when he was ready to return in mid-April 2015, provided his doctor’s release which placed restrictions on his ability to stand and walk and indicated that he would be reevaluated in six months. Lowe’s approved accommodations in interactive process forms which stated that he would be allowed light duty for 60 days, including limited lifting and standing/walking, and that a mobility device would be permitted.

At his six-month follow-up appointment in July, his doctor recommended that he continue his work restrictions for another six months and certified him for a permanent handicap placard for his car. After he provided the medical documentation, his superiors became concerned that his restrictions were permanent and contacted his doctor, who confirmed he was recommending that they be permanent. The employee was then advised that he would need to be replaced and to look for another position within the company that he could perform with his limitations. He took a leave of absence in September, filed an EEOC charge in November, and applied for other work, including two director positions that he claimed he was undisputedly qualified for. He was not selected for any other position and eventually retired.

Couldn’t perform ‘essential’ store visits. In finding that the employee could not establish that he was denied a reasonable accommodation, the court first determined that the essential functions of the district manager position included visiting stores, walking around stores, and traveling to and from stores. Indeed, the employee himself emphasized the importance of store visits as he was responsible for “developing store managers, assistant store managers, and department managers” and store visits were “the cornerstone” to coaching store managers. He also undisputedly couldn’t successfully perform store visits (and the attendant standing, walking, and travel) when he took his leave of absence in September 2015. Though he said he was only adhering to his medical restrictions about 75 percent of the time and was overdosing with Ibuprofen, Lowe’s was not required to permit him to continue performing essential functions that his doctor prohibited him from doing. And while he had another area team member drive to and from visits so that he could rest his knee during his initial accommodations period, reallocating the driving function to another employee does not constitute a reasonable accommodation.

Permanent light duty not reasonable. Moreover, the employee’s request for permanent light duty was untenable and not required by the ADA. He also argued that Lowe’s erred by prematurely concluding that his limitations were permanent by improperly inferring this from the fact that he had been issued a permanent handicap placard. However, several workers had heard him say that his restrictions were permanent or likely permanent and his superiors reasonably believed them to be so as of July, when his treating physician relayed that recommendation to Lowe’s.

Reassignment not feasible. Further, reassignment to one of the director positions that the employee desired was not a feasible reasonable accommodation since the ADA did not entitle him to special treatment in violation of Lowe’s longstanding non-discrimination job application and hiring policy. Though the Fourth Circuit had not yet squarely addressed this issue, it indicted in dicta that it would likely side with the Circuits that have held that the ADA only requires that disabled persons be allowed to compete equally with nondisabled persons. To that end, though he argued that he was well-qualified for the two director positions, the evidence demonstrated that “he simply was not the best man—or even an appropriate man” for either job.

For instance, he applied for the position of merchandising director in lawn and garden, but the hiring manager wanted someone with product line review experience, which he undisputedly did not possess. And while he was encouraged to apply for a manager position in the category so that he could hopefully grow into the role, he declined since it was a demotion with undesirable financial consequences. He also similarly failed to show that he should have been picked for the position of merchandising director in outdoor power equipment.

Rejected offered accommodation. Additionally, Lowe’s undisputedly twice offered the employee the opportunity to use a motorized scooter so that he could continue to perform store visits but he refused both times. Though he argued that the company “dropped the subject,” it was not required to repeatedly make the offer. The court also rejected his argument that he would have opted to use the scooter if Lowe’s had framed it as his only other option to losing his position. “Hindsight is twenty-twenty” and the law does not require an employer to present options in an employee’s preferred manner.

No age bias or retaliation. The court also tossed his age bias and retaliation claims. Though the employee was replaced by someone substantially younger, he undisputedly could not perform the essential functions of the job and was not qualified for the other director positions. Moreover, the six-month lag between his EEOC filing and rejection for one of the director positions was insufficient to create an inference of causation.

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