In Jones v. Nationwide Insurance Company, the First Circuit held that an employer did not violate the ADA or Massachusetts Laws ch. 151B (Chapter 151B) when it refused to extend the deadline to pass a licensing examination for an employee who had repeatedly failed the exam.
Mark Jones, a Retirement Program Services Director, suffered brachial plexus palsy (BPP), underwent numerous surgeries between 2006 and 2008 for issues related to a shoulder injury, and regularly took painkillers to manage his conditions. In early 2006, Nationwide announced that it would offer a new retirement product, known as ProAccount, and that employees in certain positions (including Jones's position) were required to pass the Series 65 licensing exam in order to sell ProAccount. Jones never took the exam in 2006. He failed the exam in late 2007. In December 2007, Nationwide informed its sales personnel that they would be transferred or terminated if they did not pass the exam by December 31, 2008. Jones failed the exam again in February and April 2008 and on December 23, 2008.
On December 24, 2008, Jones raised the possibility of being granted an extension of time. On December 28, 2008, Jones formally requested an extension and claimed, for the first time, that his 2006 shoulder injury and its "aggressive treatment," including high doses of morphine and oxycodone, had "drastically hindered his academic ability." Jones did not submit any medical information in support of his assertions and did not reference BPP. Nationwide denied Jones's request, but offered to help him transfer to another position in another state. Jones declined to pursue an open alternate position. Accordingly, Nationwide terminated Jones's employment on January 31, 2009. Jones sued Nationwide in October 2010.
The District Court granted Nationwide's motion for summary judgment, and Jones appealed. Bypassing the issue of whether Jones was disabled, the First Circuit focused on whether Jones was a "qualified individual" and whether his requested accommodation was reasonable, which the First Circuit characterized as two interrelated criteria. Based in part on Nationwide's repeated characterizations of the exam, the Court found that passing the exam and obtaining the license was an essential function of the job. The Court then held that Jones's extension request was not reasonable on several grounds: (1) Jones failed to link his requested accommodation to his alleged disability, BPP; (2) the request was too late, after Jones knew his employment was being terminated; and (3) Jones provided no basis for Nationwide to conclude that the extension would help him pass the exam. Finally, the Court affirmed the dismissal of Jones's claim that Nationwide failed to engage in a "interactive process" on the grounds that Jones failed to present evidence that the parties would have been able to find a reasonable accommodation and because Jones declined Nationwide's offer to help him locate another position.
This decision is helpful for employers who find themselves faced with a last minute assertion of a disability and request for accommodation, or other internal complaints, after placing an employee on notice of an anticipated adverse action. According to the First Circuit, such requests may be "too little, too late." Nevertheless, all assertions of disabilities and any request for an accommodation must be reviewed on a case-by-case basis to ensure compliance with the law.