adverse employment action

Interactive Process and Essential Functions of the Job

February 10, 2020 by William Goren 2 Comments

Today’s case is a twofer. That is, we are going to talk about two different cases, both dealing with the interactive process and essential functions of the job. The first case is an unpublished decision from the 11^th Circuit, Kassa v. Synovus Financial Corporation, decided February 3, 2020. The second case is Seward v. Roy City decided by the United States District Court for the District of Utah on January 22, 2020. As usual, the blog entry is divided into categories and they are: Kassa facts; Kassa court’s reasoning; Seward facts; Seward court’s reasoning; and thoughts/takeaways on both cases. Of course, the reader is free to concentrate on any or all of the categories.

Kassa Facts

Plaintiff began working for the defendant as a lead network support analyst in the network operations center during night and weekend shifts. He has bipolar disorder and also suffers from intermittent explosive disorder. Accordingly, he told his supervisor about his disorders and that he would sometimes get angry or upset. He also told his supervisor that he was able to control his anger if he took his medicine and could take short breaks. The supervisor granted his request to take a short break when he got frustrated so long as his area was covered and he could be reached if necessary. That system worked fine. However, in 2016, defendant restructured and his department was outsourced to a third party vendor. Since plaintiff had quite a bit of technical expertise, the defendant wanted to retain plaintiff’s services and transferred him to the automated teller machine team. That team was responsible for handling customer service calls about issues with automatic teller machines. Once plaintiff learned that his position would involve answering customer service calls from both technical and non-technical personnel, he spoke to his senior director and to a human resources manager about his concern that he might lose his temper while talking to someone on the phone as he had a condition where he couldn’t always control what he said. Accordingly, it was not a good idea to have him answering phones. Plaintiff asked the senior supervisor if he could take customer service calls only from technicians, work nights, work from home, or could take a short break when he was having an episode. None of those requests were granted. Of course, plaintiff did indeed have episodes and in July 2017, his employment was terminated after plaintiff made another rude and unprofessional comment during customer service call. After filing with the EEOC, plaintiff sued the defendant alleging failure to provide a reasonable accommodation and for retaliation.

Kassa Court’s Reasoning

To establish a prima facie case of discrimination under the ADA, plaintiff must show he is: 1) disabled; 2) a qualified individual; and 3) that he was subject to unlawful discrimination because of his disability.
The essential functions of the position are the fundamental job duties of the position an individual with a disability is actually required to perform. The court then proceeds to list out all the EEOC factors and EEOC situations going into deciding whether a job function is essential.
The District Court got it right when it came to deciding that situations answering customer service calls was an essential function of plaintiff’s job on the ATM team. There really wasn’t any dispute on that point from either the plaintiff or the defendant.
An accommodation is reasonable only if it enables the employee to perform the essential functions of the job.
The employee has the burden of identifying accommodations and demonstrating that it is reasonable.
Plaintiff brought forth enough evidence to establish his request to take short breaks was a reasonable one. After all, he did precisely that in the job he was in prior to being transferred. Also, plaintiff’s supervisor for his original job testified that he generally permitted his customer service employee to take breaks when they got frustrated.
Plaintiff testified that when he transferred to the new team the accommodations simply stopped.
An employer’s failure to provide a reasonable accommodation is itself a violation of the ADA.
With respect to accommodation requests of not having to answer all calls, working from home, and working at night, those requests were not reasonable in light of the facts put forward by the defendant.
A retaliation claim cannot duplicate a failure to accommodate claim.
So, the 11^th Circuit vacated the District Court’s summary judgment on plaintiff’s failure to accommodate discrimination claim with respect to his request to take short breaks and remanded for further proceedings. They affirmed summary judgment on the remaining failure to accommodate claims as well as the retaliation claim.

III

Seward Facts (taken directly from opinion)

Seward worked for the Roy City Police Department from April 2001 until May 2015. During his time with the police department, he concurrently served with the United States Air Force Reserve. As a part of his duties with the Air Force Reserve, he was deployed to Afghanistan from February 21, 2014 until October 31, 2014. While in Afghanistan, he sustained an injury to both of his knees.

Upon Seward’s return from Afghanistan, he engaged in full active duty with Roy City until the condition of his knees worsened, mandating knee surgery in March of 2015. Seward took thirty days of unpaid leave to recover, and then was placed on light duty with Roy City. On April 15, 2015, Seward submitted a letter from his surgeon, Dr. Thomas, requesting an extension of light duty for an additional four weeks. Roy City granted the extension of light duty. The letter stated that Dr. Thomas anticipated Seward returning to “Full Duty in 4 weeks as police officer.”

In May, acting Roy City Police Chief Calcut asked Seward for an update as to when Seward could return to full active duty. On May 11, 2015, Seward submitted a second physician’s note recommending three additional months of light duty. The second note also stated there would be a “Follow up with doctor in: 4 wk(s).” After reviewing the letter, Calcut informed Seward that he was “good to go.” Seward understood from this statement that Calcut had approved his request for an extension of his light duty assignment. On May 27, Seward submitted a third doctor’s note stating that he was able to carry a firearm and drive a police vehicle and that he should follow up with his physician “as needed.”

On May 29, 2015, Roy City asked Seward to meet with human resources to fill out Family and Medical Leave Act (FMLA) paperwork. During that meeting, the city told Seward to call Dr. Foot to schedule a physical within the next two weeks. Seward was informed that he must pass a fit-for-duty examination in that time period in order to return to his job as a police officer. He was then sent home on unpaid leave.

Seward believed that he could not pass a physical within the allotted time period and did not call Dr. Foot. Instead, he submitted a retirement letter on June 12, 2015. Seward then sued Roy City, asserting three causes of action: (1) disability discrimination in violation of the ADA, (2) disability discrimination in violation of the Rehab Act, and (3) failure to engage in the interactive process or make a reasonable accommodation in violation of the ADA. Roy City moved for summary judgment on all three claims. Seward stated that he intended to abandon his first two claims but argued that summary judgment was not appropriate for his third claim.

Seward Court’s Reasoning

An available claim under the ADA is the employer failed to engage in an interactive process to accommodate a person’s disability.
Federal regulations implementing title I of the ADA envision an interactive process requiring participation by both parties.
The interactive process begins when an employee provides notice of a request for an accommodation.
One notice is given, both parties have the obligation to proceed in a reasonably interactive manner to determine whether reasonable accommodations can be granted.
A plaintiff bringing a failure to accommodate claim must show: 1) that he or she is a qualified individual with a disability; 2) that the employer was aware of the disability; and 3) that the employer failed to reasonably accommodate the disability.
In a footnote, the court noted that the 10^th Circuit has granted a petition for an en banc rehearing to review whether an adverse employment action is a requisite element for failure to accommodate claims under the ADA. Since that has not been decided yet, the court followed existing precedent, which we discussed here, that an adverse employment action is required.
A temporary reprieve from an essential function, such as a leave of absence or light duty assignment, for treatment of recovery from an injury can be a reasonable accommodation providing certain circumstances are met: 1) the employee provides an estimated date when he or she can resume his or her essential duties; and 2) the request for leave or modified duties must assure the employer than an employee can perform the essential functions of his or her position in the near future.
The letter furnished by the plaintiff from his surgeon recommended that the plaintiff be limited to light duty work for a period of three months. Accordingly, the clear implication of that letter is that the light duty restriction would be lifted at the end of the three month period. So, that letter necessarily provides a projected date for the defendant as to when the plaintiff could resume his essential work duties.
A failure to engage in the interactive process is a failure to make reasonable accommodations.
Interactive process includes good-faith communication between the employer and the employee. A lack of good faith can be demonstrated by the party obstructing or delaying the interactive process or by the party failing to communicate with respect to starting or responding to the interactive process.
While requesting an update on medical information from an employee is reasonable, giving the employee an ultimatum is not. Here, plaintiff produced evidence the defendant gave him an ultimatum where he either had to pass a fitness for duty test within two weeks or be terminated. An all or nothing ultimatums from an employer ending the opportunity for any possibility of reasonable accommodation is not the flexible and informal process mandated by the ADA.
The 10^th Circuit liberally views what an adverse employment action is. In the 10^th Circuit, it is more than just monetary losses. The United States Supreme Court has held that a jury can reasonably conclude that a suspension without pay is an adverse employment action. Here, plaintiff presented evidence that he was placed on unpaid leave and then given the ultimatum. Accordingly, that suffices for an adverse action.

Thoughts/Takeaways on Both Cases

I am still seeing a lot of confusion about the prima facie case for discrimination under title I of the ADA. That is, I still see too many courts talking about the standard of causation being, “because of his disability.” That isn’t the standard. The statute, 42 U.S.C. §12112, specifically says the standard is, “on the basis of.” Further, we have talked about cases, such as here, strongly implying if not holding, that the standard outside of the retaliation context is not because of (whether that be “but for,” or sole cause).
You most certainly can look at all the factors EEOC lays out plus the additional situations they mention to determine what are the essential functions of a particular job. Keeping it simple, look to what is fundamental to carrying out those job duties. Don’t forget that the standard is whether a person can carry out those essential job duties with or without reasonable accommodations.
Not unusual to see cases saying that the employee had the burden of identifying accommodation and demonstrating that the accommodation is reasonable. That becomes a particular issue when it comes to reassignment as a reasonable accommodation, which we have discussed here.
If it ain’t broke, why fix it? I can’t tell you how many times I see a new supervisor with a system already working blow the whole thing up. That is only a recipe for litigation. If an accommodation is working, keep letting it work.
“An employer’s failure to provide a reasonable accommodation is itself a violation of the ADA.” This statement from Kassa raises the question of whether the 11^th Circuit would require an adverse action for failure to accommodate claims. The 10^th Circuit is quite liberal as to what an adverse action is and may even soon get rid of the requirement altogether in failure to accommodate cases.
Failure to accommodate claims are fine, but a retaliation claim has to be distinct from the failure to accommodate claim.
With respect to what the interactive process should look like, this blog entry addresses that question.
Magic words are not required to start the interactive process.
Will definitely be following what the 10^th Circuit does in Exby-Stolley. It will not surprise me at all to see a Circuit Court split develop on this question of whether failure to accommodate claims require an adverse action.
Courts outside of the Seventh Circuit are tending to be flexible with respect to extended leave as a reasonable accommodation. The general trend is extended leave is okay where the employee can provide an estimated date in the near future for his return. In the District Court of Utah, three months was reasonable. Again, jurisdictions are going to vary on how to deal with extended leave beyond the FMLA leave.
An ultimatum can be construed as blowing up the interactive process.
An employer is not required to create light-duty positions if they don’t already have one.
Don’t forget, as we discussed here, that reassignment can be a reasonable accommodation.
The 11^th Circuit said in Kassa the following: “an accommodation is reasonable only if it enables a person with a disability to perform the essential functions of the job.” Note, what the court is not saying. It is not saying that the accommodation must be related to the essential functions of the job. Rather, it is saying that the accommodation must enable a person to perform the essential functions of the job. That language is Exhibit 1 for any plaintiff lawyer saying that a bona fide service dog is always a reasonable accommodation because without it a person will not be enabled to perform the essential functions of the job. So, as a matter of preventive law, allow bona fide service dogs for your employees assuming proper documentation.
Most of the cases I am now seeing are using the term, “disabled.” I still prefer people first language myself.

Direct Evidence is a Smoking Gun

May 6, 2019 by William Goren Leave a Comment

Today’s blog entry discusses two cases, both dealing with smoking guns (hence, the cannon above).

One is from the Sixth Circuit, Baum v. Metro Restoration Services, Inc., Decided on April 11, 2019. The other is EEOC v. Crain Automotive Holdings LLC from the Eastern District of Arkansas, also decided on April 11, 2019. As usual, the blog entry is divided into categories, and they are: Crain’s facts; Crain’s reasoning; Crain’s takeaways; Baum’s facts; Baum’s reasoning; and Baum takeaways. Of course, the reader is free to focus on any or all of the categories.

Crain Facts Taken Directly From The Opinion

Judith Vaughn began working for Crain Automotive Holdings, LLC in the fall of 2016. Vaughn suffers from anxiety, depression, and panic attacks. Late in the day on Monday, January 30, 2017, Vaughn began experiencing chest pains and went to the emergency room, fearing she was having a heart attack. After two days of treatment Vaughn learned her chest pain had been the result of a panic attack. She ultimately reported back to work on Friday, but she began experiencing a panic attack and left work, after emailing her supervisor. When Vaughn returned to work the following Tuesday, she met with two supervisors, Kim Lynch and Debbie Pumphrey, and was terminated. According to Vaughn, she was told at this meeting that “it was not working out” due to her health problems and that she needed to take care of herself.

Crain’s Reasoning

McDonnell-Douglas only applies where a plaintiff does not have direct evidence of discrimination.
Direct evidence is evidence showing a specific link between the discriminatory intent and the adverse employment action sufficient for a reasonable jury to find an illegitimate criterion actually motivated the adverse employment action.
Where direct evidence of discrimination exists, a plaintiff gets to the jury based on that evidence alone.
No dispute that Vaughn has anxiety, depression, and panic attacks. With respect to her panic attacks, those attacks make her feel paralyzed, cause chest pain, and cause difficulty with breathing, thinking, communicating with others, and reasoning. Her anxiety causes her to have difficulty breathing and communicating and an inability to think coherently. Finally, when her depression is active, she is unable to care for herself, communicate with others, or think coherently.
It doesn’t matter that Vaughn can perform some demanding activities and that she does not have panic attacks constantly because an impairment substantially limiting one major life activity does not need to substantially limit other major life activities in order to be considered a substantially limiting impairment. Also, episodic impairments are a disability when they substantially limit a major life activity when active. Finally, Toyota Motor’s definition of substantial limitation was overruled by the amendments to the ADA [my words, but what the court essentially said].
The evidence presented by the EEOC makes clear that Vaughn’s employer was on notice that she had anxiety, depression, and had suffered a panic attack. She also had put the employer on notice that she had had a heart catheterization. Accordingly, a reasonable jury could find that when Vaughn was fired the following Tuesday, the employer certainly knew about her anxiety, depression, and panic attacks. Further, the jury could find that the employer had some knowledge of the extent of Vaughn’s impairments as they had caused her chest pain resulting in a heart catheterization as well as missing several days of work.
Actions or remarks by employers reflecting a discriminatory attitude or comments that demonstrate a discriminatory intent (the legal jargon is animus), in the decisional process, or comments made by individuals closely involved in employment decisions may all constitute direct evidence of discrimination.
At the meeting between Vaughn and her two supervisors to talk about why she had left work early, Vaughn was specifically told that “due to her health, it wasn’t going to work out and she should take time for herself.” If believed by the jury, and it is the jury’s call, the comment is direct evidence of discrimination that would enable a jury to find the employer motivated by Vaughn’s disability when it fired her.
The supervisor’s comment is a far cry from stray remarks in the workplace for several reasons: 1) it was made during the meeting in which Vaughn was fired; 2) it was made by Vaughn’s supervisor; 3) it relates directly to the decision to fire the plaintiff; and 4) no reason exists to suspect that the suggestion that the Vaughn should take care of her health or take time for herself was made with the intent of attempting to preserve and promote her as she was fired in the same conversation.
Magic words are simply not required when it comes to requesting a reasonable accommodation. Instead, all a plaintiff has to do is make clear to the employer that he or she wants assistance for his or her disability. That is, an employee only needs to provide the employer with enough information that, under the circumstances, the employer can be fairly said to know about the disability and the desire for an accommodation. A question of material fact exists here because plaintiff produced an email in which she stated that a letter from her doctor was attached.

III

Crain Takeaways

This whole direct evidence/indirect evidence gets really confusing. Previously, I talked about that confusion and how Seventh Circuit may or may not have have done away with the whole thing.
Whether you are going with direct evidence or indirect evidence, it is clear that mixed motive is involved as both tests use motivating factor.
The amendments to the ADA change what substantial limitation means and it also changed dealing with episodic impairments.
Labor and employment lawyers are quite fond of saying that magic words are not required. The problem is what does that exactly mean? This case does a real nice job of presenting a standard for when a reasonable accommodation request has been made where magic words are not used. In particular, all the employee has to do is make clear to the employer that he or she wants assistance for his or her disability. That, is also vague, but the court goes further when it says, citing to an Eighth Circuit case, “an employee need only provide the employer with enough information that, under the circumstances, the employer can be fairly said to know about the disability and desire for an accommodation.”

Baum Facts Taken from the Opinion

A few months after Plaintiff Jonathan Baum began having heart problems, his employer, Defendant Metro Restoration Services, fired him. Not only that, Metro’s owner told him he was losing his job because of his health issues. So, Baum sued for disability discrimination, and the district court granted summary judgment in Metro’s favor after concluding that Baum couldn’t establish he was disabled.

Metro repairs property damage after catastrophic events such as storms and fires. In 2013, the company hired Baum as a scheduler. As the job title suggests, Baum determined which of Metro’s work crews would go to which job sites and when they would go. In late 2014, Baum began having heart problems. Over the course of several months, he went to the emergency room fearing he had had a heart attack; had a CAT scan; had a heart catheter implanted; had an echocardiogram (which outlines the heart’s movement using high-frequency sound waves); and wore a heart monitor for more than a month. During this time, he occasionally missed work for medical tests and treatments. He also worked remotely sometimes. He kept his boss and owner of Metro, Patrick Cahill, informed of his medical issues. One weekend in the spring of 2015, severe weather hit. Baum worked remotely to coordinate Metro’s crews. The next week, Cahill went to Baum’s home and fired him. During their conversation, Cahill said he was firing Baum “due to [Baum’s] health issues and doctors’ appointments.” Baum then sued Metro in state court for disability discrimination under both the Americans with Disabilities Act and Kentucky law. Metro removed the case to federal court.

Baum Court’s Reasoning

Cahill’s statement that he was firing the plaintiff because of his health issues is direct evidence of discrimination.
Since direct evidence of discrimination exists, plaintiff has to show that: 1) he has a disability; and 2) he is otherwise qualified for the job despite the disability either without accommodation, with an alleged essential job requirement eliminated, or with a proposed reasonable accommodation. (For the labor and employment lawyer really familiar with the ADA, I know what you are thinking. This is not a misprint).
Metro never contested plaintiff’s qualifications for the job without accommodations, and therefore, forfeited the argument by failing to raise the argument earlier than at oral argument.
Expert testimony is needed to show whether the plaintiff is substantially limited in the major life activities of cardiovascular and circulatory functions because cardiovascular and circulatory functions require medical knowledge to understand.
Absent medical expert testimony, the plaintiff can’t create a factual issue of whether he has a disability. Accordingly, summary judgment was correctly granted on that score.
With respect to the perceived disability claim, a plaintiff does not need to prove a limitation on a major life activity.
Cahill’s words v. the plaintiff’s word creates a classic credibility dispute that is a task for the jury.
While it is true that Cahill’s knowledge of plaintiff’s medical issues is not sufficient to carry the day, plaintiff has more than that here. In particular, he has Cahill’s stated reason for firing him: his health issues and doctors appointments. That statement creates a factual dispute and makes it material. Accordingly, giving the plaintiff the benefit of the doubt, which a court has to do at the summary judgment stage, a jury could find that Cahill meant exactly what he said. If the jury found such, then it could also find that Cahill perceived the plaintiff to have a physical impairment and fired him because of that perception.

Baum Takeaways

I am completely mystified by the court saying that one of the ways to show a plaintiff is otherwise qualified is to show that he can do the job with an essential job requirement eliminated. That simply isn’t the way the ADA works. The ADA does not require an employer to eliminate essential job functions. An employer may be required to engage in job restructuring, which we discussed here. They also may want to move marginal functions to others. That said, job restructuring and putting marginal functions on others are not the same as eliminating essential job requirements.
If you have an argument, raise it early. We just discussed that problem here.
A person may lose an actual disability case, but may be able to go forward on a regarded as claim.
Sometimes you need expert medical testimony to establish whether a substantial limitation on a major life activity exists even though what is a substantial limitation on a major life activity is a much easier standard to meet since the amendments to the ADA.
Direct evidence must be material to the adverse action.

A comment that applies equally to Baum and to Crain is that smoking guns are rare, but they do happen.

Dog in Apartments, Hostile Work Environment and the ADA, and Scared of Needles

March 13, 2019 by William Goren Leave a Comment

Today’s blog entry is a triple play. In the first, we will go over an advice column and discuss what they got wrong and what they got right. In the second and third situation, we will briefly discuss two cases that came down from the Second Circuit recently: dealing with hostile environment under the ADA claims; and dealing with essential functions of the job. As usual, the blog entry is divided into categories and they are: the advice column; the hostile work environment case/takeaways; and the pharmacist who is afraid of needles case/takeaways. The blog entry is pretty short, and so, you probably will want to read the whole thing, but you certainly don’t have to.

In an Ask Sam column, which can be found here, a reader asked the question whether as the owner of a rental property, just what were the rules for service dogs on the premises since obviously not all requests were coming in for service dogs.

The column gets it right that landlords may not discriminate against a tenant with disability regarding the leasing of a property because the person with a disability has a service animal. I am presuming the column is talking about a residential unit and not a place of business.
The column also gets it right that North Carolina has a system for registering service animals.
The column gets it right that a landlord cannot assess a pet fee for a service animal, and that the tenant is responsible for any damage to the leased premises caused by the service animal.
The column more or less gets it right when it talks about what is the definition of a service animal. For that, see this blog entry. It does get it right with respect to examples of what might be a service animal.
The column gets it wrong in saying that registration with North Carolina is necessary in order to have permission for a service animal to be in the unit. Federal law, in this case the Fair Housing Act, trumps state law and federal law contains no such requirement.
The column gets it wrong in a big way when it says that comfort animals, which presumably includes emotional support animals, do not qualify as a service animal under either the ADA or the North Carolina statute, AND therefore, in those situations the landlord can enforce a no pet policy. The first part of this sentence is correct but since it is dependent upon the second part of the sentence, the whole thing fails. As we know from our blog entries, the Fair Housing Act, which is the law that applies to residential unit being leased, specifically allows for emotional support animals as an assistance animal. Failure to get this right can cost you big time, as we discussed here.

Hostile Work Environment Case and Takeaways

Two labor and employment bloggers do a real nice job discussing the hostile work environment case. Those blogs are Bergstein and Ullrich’s Wait a Second blog (Wait a Second also blogged on the scared of needles case as well), in my blog roll and which can be found here, and Fisher and Broyles Employment Law blog, here. As everyone knows, if other people blog on the case, I may blog on it as well if I can add a perspective to it, and so, here goes.

In Fox v. Costco Wholesale Corporation, the Second Circuit was faced with the question of deciding whether a hostile work environment claim flies (it does and questions of fact existed to defeat summary judgment), with respect to the ADA. The Second Circuit reasoned as follows:

The 4^th, 5^th, 8^th, and 10^th Circuits have all held that the ADA supports a hostile work environment claim.
Under the ADA, a covered employer shall not discriminate against a qualified individual on the basis of disability in regard to terms, conditions, and privileges of employment. That language is borrowed from title VII, which has very similar language. Therefore, when Congress used that language, it was using a legal term of art that prohibited a broad range of employment practices, including workplace harassment.
When the ADA was enacted, the United States Supreme Court had already twice concluded that title VII provided for hostile work environment claims.
Title VII and the ADA share a purpose to prevent discrimination against a defined class of people. Since the two statutes share a common purpose and the ADA echoes and expressly refers to title VII, it necessarily follows that people with disabilities should be able to assert hostile work environment claims in the same way people without disabilities can assert title VII claims.
A person alleging a hostile work environment claim under the ADA must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of the working environment. That analysis is a totality of the circumstances test.
Plenty of evidence existed to create a question of fact as to whether the plaintiff endured a hostile work environment.

Takeaways;

The plaintiff in this case had Tourette’s syndrome as well as obsessive-compulsive disorder since birth. The plaintiff did certain things in order to compensate for that disability, and fellow employees simply didn’t get it. Further, they mocked him for it.
You don’t need an adverse employment action for a hostile work environment claim. Rather, you just have to show an alteration in the conditions of the working environment. They are not at all the same thing. Indeed, here the court finds that a hostile environment could well have existed even though no adverse action occurred.
Perhaps, a Circuit Court split will develop on the issue of whether the ADA allows for a hostile work environment claim. However, I think it is just as likely that no such split will ever occur. Also, if it ever gets to the United States Supreme Court, I can’t imagine the Supreme Court – even with it being an employment case and even with this makeup of the court- saying no to such claims, but who knows.
When it comes to hostile work environment and persons with disabilities, it will be very important for a plaintiff to be able to show the judge what was in the mind of the plaintiff as he or she had to endure all these things. It isn’t necessarily going to be obvious. Plaintiff may want to consider using expert testimony on that.
When problems like this surface, don’t wait months to deal with it. Get on it immediately.

III

The Pharmacist Who Simply Can’t Give Shots

In Noel v. Walmart Stores, East LP, the Second Circuit was faced with the question of whether a motion to dismiss should be affirmed where a pharmacist who had a fear of needles would not give out shots to consumers wanting flu shot and other shots. The Second Circuit held that dismissing the case was not right and gave the following reasons:

When Walmart announced that all pharmacy employees had to administer immunizations, plaintiff specifically sought an accommodation. Walmart in response sent the plaintiff a letter informing him that his request had been granted, that he was capable of performing the essential functions of the position, and that they were reasonably accommodating his disability. While the letter did note that the accommodation was subject to further review, including any changes in the job description, the job description was never altered at any time following receipt of the letter.
When considering whether a job function is essential, the court noted the seven factor test laid out by the EEOC. However, the court notes that in these situations it is up to the court to conduct a fact specific inquiry into both the employer’s description of the job and to determine how the job is actually performed in practice.
At the time of plaintiff’s constructive discharge, the job description had yet to change.
The only way to arrive at the conclusion reached by the District Court dismissing the case was to discredit the plaintiff’s well pleaded allegations and discount Walmart’s own letter. That is not something that can be done on a motion to dismiss.

Takeaways:

Employers are under no obligation to waive essential functions of the job. However, employers do have to consider restructuring of the job, which we discussed here.
Keep job descriptions current. That is, if you do change the essential functions of the job, make sure the job description changes with it.
Regardless of what is in the job description, the critical question is what is occurring on the ground. So, figure out some way to periodically review job descriptions and compare them to what is actually happening.

adverse employment action

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