Labor & Employment Law Daily Tech fired for relieving himself in company van wasn’t denied accommodation for previously undisclosed diabetes
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Wednesday, October 31, 2018

Tech fired for relieving himself in company van wasn’t denied accommodation for previously undisclosed diabetes

By Marjorie Johnson, J.D.

A diabetic CenturyLink technician, who was fired after an apartment manager complained that he had seen the technician urinating in his company van, failed to defeat summary judgment on his claim that he was denied the reasonable accommodation of being able to use a urinal bag, in violation of the Minnesota Human Rights Act (MHRA). A federal district court in Minnesota ruled that he never asked for an accommodation, but merely explained his diabetic condition and actions after the customer complained. Moreover, any “request” was untimely since it was made after the incident and being allowed to use a urinal bag would not have allowed him to perform the essential functions of his customer-centered job anyway (Tyner v. Qwest Corp., dba Century Link, October 26, 2018, Frank, D.).

Customer-centric job. The broadband technician was responsible for setting up telephone, Internet, and television services for CenturyLink customers. As such, he worked for extended periods in front of customers, occasionally spending extended periods of time at a single location. He was also expected to be respectful to customers and members of the public.

Bottle in van for urination. The technician’s diabetic condition sometimes caused him to have a sudden urge to urinate. He therefore carried a bottle in his company van, that he got from his doctor’s office, so that he could relieve himself if a sudden need arose. Despite carrying the bottle, however, he still had accidents on at least ten occasions while on the job.

Distraught customer complains. On the morning of January 11, 2017, the employee had the sudden need to urinate while he was pulling in to the parking lot of an apartment complex where he was assigned to perform services. After attempting to park the van three separate times, he ended up parking next to the complex’s manager and proceeded to urinate into a bottle. The manager did not see his genitals, but saw movements suggesting he was urinating in his van.

When he was finished, the employee noticed the apartment manager waving, so he rolled down his window. The manager, who was upset, asked him for his supervisor’s phone number and refused to allow him to enter the apartment complex to work. The manager also left a message for his supervisor complaining about the matter.

Discloses diabetic condition. When the employee called the supervisor to explain the situation, he disclosed for the first time that he was diabetic and had sudden urges to urinate due to his condition. In response, the supervisor advised him that his behavior was “totally unacceptable.” Management then investigated the incident by collecting a statement from the apartment manager, the supervisor’s typed notes, and photographs of the parking lot. When interviewed, the employee explained that urinating in the bottle was his only option at the time and that his diabetes was the reason for his behavior.

On January 27, the management team met and determined that the employee’s conduct was unacceptable and in violation of the company’s code of conduct and employee handbook. He was terminated a few days later. He subsequently brought this lawsuit asserting that his employer failed to accommodate his disability by failing to allow him to use a “Brief Relief” bag (disposable urine bag) or adult undergarments while on duty.

No request, just “explaining.” The court first determined that the technician never requested an accommodation. Rather, he only told his supervisor after the incident that he needed to urinate frequently and suddenly, and that he used a urinal because of his sudden urges to urinate. Thus, he was merely explaining why he urinated in a bottle.

Couldn’t perform job. Moreover, there was no evidence that the use of a Brief Relief bag would have allowed the technician to perform the essential functions of his job. His job required him to work in public for extended periods of time and the use of the urinal bag would not have prevented him from relieving himself in public when he had a sudden urge to urinate any more than his use of a bottle had. Rather, “it would simply change the vessel into which [he] would relieve himself.” Notably, these bags are generally used by technicians who do not work in public spaces, such as in a utility hole.

Undergarment didn’t require permission. While he also argued that he could perform the job if he could wear adult undergarments, there was no evidence that he ever made such a request. Moreover, a request to wear adult undergarments would not even be a request for an accommodation since their use would be a matter within his personal control and admittedly would not have required his employer’s approval. Indeed, he himself acknowledged that he could have worn adult undergarments on January 11 but felt too uncomfortable wearing them.

Request too late. Moreover, even if his comments could be construed as a request for an accommodation, the request was untimely since he did not inform his supervisor of his diabetes and urges to urinate until after the January 11 incident. This timing was fatal since an employer is not required to excuse past workplace misconduct even if it’s the result of an employee’s disability.

Undisputedly job-related. Finally, the employee argued that urinating in view of a customer was not explicitly prohibited by company policies. Therefore, he urged that a jury should decide if he should have known that his conduct would result in termination. The court disagreed, finding that CenturyLink’s decision to prohibit employees who operate in public spaces from urinating in view of member of the public was job-related and consistent with business necessity.

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