Pearlie Talley operated a cash register for Family Dollar. Talley suffered from a disease that she alleged caused such pain in her legs that she was unable to stand or sit for long periods of time. After a fall at work, Talley claimed she could not stand for more than 15 minutes without experiencing severe pain. In response to her requests, some supervisors allowed Talley to sit on a stool at her cash register, while other supervisors forbade the use of a stool. Some co-workers complained that Talley was receiving unfair preferential treatment when she was permitted to use the stool.
Subsequently, Talley was given two options: work without a stool or secure a doctor’s note that indicated that she needed the stool to perform her job. Talley secured a note. When Talley brought the note to work, her supervisor allegedly refused to read the note, and proposed a meeting with the district manager to resolve the issue. Talley left work and never returned. Talley claimed she tried to contact Family Dollar several times to arrange the meeting, but the meeting never took place.
Several months later, Talley was discharged for “job abandonment.” Talley sued Family Dollar under the Americans With Disabilities Act (ADA) and Ohio law. The trial court found that Talley had voluntarily left work without resolving the accommodation issue and granted summary judgment to Family Dollar because Talley failed to establish that she had suffered an adverse employment action. Talley appealed and the Court of Appeals reversed.
The appeals court found, viewing the facts in the light most favorable to Talley, that she proposed a reasonable accommodation – use of a stool – but that Family Dollar withdrew the accommodation because of her co-workers’ complaints. The court held that there were genuine issues of material fact regarding whether Talley proposed a reasonable accommodation and, if so, whether the accommodation would cause an undue hardship on Family Dollar. The parties disputed whether Talley had been offered the opportunity to take more frequent breaks in lieu of using a stool, and whether such breaks would have been sufficient to allow her to work without incurring pain and use of the stool.
The court held that the facts in dispute were sufficient to allow a reasonable jury to conclude that Family Dollar intended for Talley to resign and it was foreseeable she would do so based on Family Dollar’s actions: (1) denying her use of a stool after permitting its use; (2) refusing to read the doctor’s note; (3) failing to organize a meeting to discuss the issue; and (4) failing to offer alternatives to resolve the issue. The court held that when an employee makes a repeated request for an accommodation and that request is denied and no reasonable alternative is offered, a jury may conclude the employee was constructively discharged and suffered an adverse employment action.
This case illustrates the need for employers to both engage in and document the required “interactive process” – communication between the employee and employer, and good faith exploration of possible accommodations. Although an employer may very well fulfill its obligations to engage in the interactive process, oral communications are easily disputed and subject to contradictory interpretations. Employers should carefully follow through and document each step of the process proposed and taken with an employee who seeks an accommodation. Such documentation serves a number of purposes: (1) the documentation establishes evidence or a “paper trail” of the employer’s good faith efforts; and (2) the documentation makes it more difficult for an employee to create an issue of fact as to the employer’s good faith actions.