During the week of 1/16/17, three different federal district court judges ruled on summary judgment motions involving failure to accommodate claims. Two courts denied the employer’s motion for summary judgment, and one court allowed it. There are lessons to be learned from these cases.
Itzhaki v. Port Authority of New York & New Jersey (S.D.N.Y 1/17/17). In this pro-employer decision, the employee was recommended for promotion to Sergeant but the promotion was denied because, at the time of the promotion decision, she was out of work recovering from knee surgery. However, she was ultimately promoted to Sergeant three months after she returned to work.
No reasonable accommodation requested or identified. In granting the employer’s motion for summary judgment, the court noted that the employee had never requested an accommodation. The employee argued that her employer “was on notice” of her disability and need for accommodation. However, the court rejected this argument, emphasizing “the Second Circuit has held that an employer’s failure to engage in an interactive process, by itself, does not allow a plaintiff to avoid summary judgment unless she also establishes that, at least with the aid of some identified accommodation, she was qualified for the position at issue.” The court pointed out that the only accommodation she identified was the option of working from home, which the court rejected because it would eliminate an essential function of the job position. Specifically, the court concluded that the job description which included responsibilities for supervising police officers and responding to emergencies “plainly demanded a person’s physical presence.”
EEOC v. ValleyLife (D. Ariz. 1/19/17). In this case, the EEOC brought a suit against ValleyLife (a company which provides services to disabled individuals) on behalf of four disabled employees who were terminated when they could not perform all of the responsibilities of their respective job positions without accommodation. The court examined the circumstances of each of the former employees individually and, in each case, refused to grant summary judgment because it concluded that the employer had failed to engage in the interactive process. The court emphasized that an employer’s obligation to engage in the interactive process is “triggered by” (1) an express request for an accommodation or (2) the employer’s “recognition of the need for such an accommodation.”
Failure to engage in interactive process hurts chances of getting summary judgment. ValleyLife is significant because the EEOC had not identified that any reasonable accommodations were available, and yet the court refused to grant the employer’s motion for summary judgment. The court reasoned that an employer cannot obtain summary judgment in its favor “if there is any dispute that it failed to engage in the interactive process in good faith” and that, in such circumstances “evidence that an employer failed to engage in the interactive process in good faith alleviates the plaintiff of the burden of providing evidence of the reasonable of the proposed accommodation at the summary judgment stage.
Cowing v. Lockheed Martin Corp. (E.D. Kentucky 1/18/17). In this case, the court also denied the employer’s motion for summary on a former employee’s failure to accommodate claim. In this case, the employee’s job as a structural mechanic aggravated his back and knee problems, and he fell after stepping out of the cabin of a Blackhawk helicopter. One of his doctors cleared him to return to work without restrictions. However, a manager had instructed the employee to have his doctor prepare “a profile, list of medical restrictions.” The employee believed that the purpose of the profile was to “protect” himself from doing jobs that aggravated his condition. He submitted a medical certification from his pain management doctor that had lifting, bending and other restrictions. He ultimately returned to work, expecting to be reassigned to a different job though he claimed that he could still perform his old job.
Manager Resists Interactive Process. When the employee reported back to work, he was examined by Lockheed’s own occupational nurse who released him to go into his work area. As he entered the work area, a production supervisor confronted him and asked: “What the f##k are you doing here? You’re a liability. You cannot be here . . .Don’t move. Don’t touch anything.” Another manager subsequently sent an email stating: “Attached is what I need completed ASAP so we can hold an accommodations meeting to discuss why we cannot accommodate him. An accommodations meeting will make the denial of the medical restrictions more formal.”
Dispute about Essential Functions. The court rejected the employer’s motion for summary judgment on the failure to accommodate claim stating that there was a genuine issue of material fact about the essential functions of the employee’s position. The court noted that there were three different forms that had varying descriptions of essential job functions and that there was conflicting evidence about the procedure by which Lockheed Martin created and used its essential functions form.
The court acknowledged that the job of a structural mechanic was demanding and vigorous, but said that given all of the different forms and testimony, “the Court cannot say with any certainty what activities or tasks comprise the essential functions of a structure mechanic position.” The court also noted that the employee testified that he could perform the essential functions, and that the employee had submitted evidence from coworkers and supervisors “to the effect that the restrictions imposed by his doctor would not have interfered with his ability to perform necessary takes as a structural mechanic.” The court also noted that there was evidence that Lockheed Martin had approved of restrictions for another mechanic relating to lifting.
This case is significant because of the court’s failure to demonstrate deference to the employer’s judgment in identifying essential functions. The court specifically noted it had concerns about “whether a true interactive process” occurred between Lockheed Martin and the employee.
Lessons for employers? There are a number of lessons for employers from these three recent cases, many of which relate to the power of empathy and the importance of engaging in a true interactive process. In the pro-employer case, the employee may have been initially denied the promotion but she was promoted several months after she returned to work. While the court does not mention this fact as influencing its decision, in all likelihood, it did. Indeed, though it was not characterized this way, providing a “delayed” promotion could have been viewed as a form of reasonable accommodation.
In contrast, in the pro-employee cases, employers were rigid and ultimately terminated the employment of the disabled employees. In ValleyLife, the employer refused to demonstrate any open-mindedness about accommodations, including that it refused to grant any additional leave once the employees’ FMLA leave expired. And, in Cowling the manager seemed intent on keeping the employee out of the workplace, using the so-called accommodation meeting to document a denial rather than engage in an interactive discussion. Employers should take the time to meet with employees and keep an open mind because they prevent costly and protracted litigation.