convincing mosaic

Today’s blog entry comes from a connection to mine on LinkedIn, Janette Levey Frisch, an employment lawyer in the New York City area (East Brunswick, New Jersey), blogging at EmpLaWyerologist, http://theemplawyerologist.com/. The case is Fisher v. Nissan North America, Inc., a published decision from the Sixth Circuit decided on February 27, 2020, which can be found here. The case explores the issues of interactive process, direct and indirect evidence, and reassignment. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Fisher was hired as a production technician on a factory line in 2003 and received consistently positive performance evaluations with few disciplinary problems. In 2015, his kidney problems worsened. He discussed illness with his supervisor explaining that his kidney function, which had been low for years, had dropped considerably. Since he wanted to continue working, he asked his supervisor for transfer to an easier position. The supervisor responded, “I could put you somewhere, but it ain’t for this kind of stuff. You just need to go on, go on out.” Accordingly, Fisher went on long term disability.

 

In August 2016, Fisher received a kidney transplant. For months afterwards, he was easily fatigued. The medication caused serious side effects that Fisher described as almost like having the flu every day. If he exerted himself to the point of sweating, his kidney function decreased and the symptoms worsened. His doctor estimated that it would take a year to become accustomed to the medicines.

 

By October, his leave was running out and his long-term disability payments were ending. Nissan’s human resources manager warned him that if he would not able to extend his leave, he could lose his job. She also said that he could not return to work with restrictions. When Fisher discussed the situation with the doctor, she cleared him to return to work.

 

When he returned to work, the job that people thought would be an easier position turned out to be 10 times harder than his original job. He requested extra breaks or to work half-time and was refused. When he asked for a transfer to a different position, his supervisor’s response was equivocal: “yes, maybe, you know, we’ll see.”

 

Around the same time, on October 20, his doctor wrote a letter explaining that Fisher was risking his health and that ideally Fisher needed at least another month off work to build up his strength. She also wrote that he would benefit from being transitioned into a job gradually, perhaps by working half-time for a few weeks before doing full-time work. Before a decision was reached on his pending transfer request, human resources manager informed Fisher that he had been granted extra leave.

 

He then was placed back into his original position. He had not acclimated to his antirejection medicines and the flu like symptoms continued. He also needed time off for doctors appointments but did not have any leave time left. As a result, he began to miss work more frequently and be disciplined for his absences. As each warning was issued, he met with supervisors and human resources to discuss his attendance. At those meetings, he always described his kidney transplant and requested potential accommodations all to no avail.

 

On February 3, the final meeting, Fisher explained his illness and his doctor’s suggestion regarding his return to work. One of the human resources representative said that Nissan needed restrictions and not suggestions. Fisher responded that he had not been permitted to return to work with restrictions. The HR representative went ballistic and said that he could not just be going home for a stomachache. According to Nissan’s notes from the meeting, Fisher said that the company was not willing to work with him and requested another job. Human resources asked if he could not come to work, what good would moving him to another job accomplish? To that, Fisher responded, “let’s do it and will see.” Without further discussion of the possibility of a transfer, Nissan issued the final warning. At the end of the meeting, a representative told Fisher that he had never seen anybody come back from a final written warning. So, Fisher left the plant without informing the supervisors and did not return. A week later, he was terminated for absenteeism. Fisher brought suit under the ADA and the Tennessee Disability Act as well as a Tennessee claim for intentional infliction of emotional distress. The District Court granted summary judgment on all claims, and Fisher appealed.

 

II

Court’s Reasoning

 

1. Per 42 U.S.C. §12112 (a), a covered entity cannot discriminate against a qualified individual on the basis of disability. Further, the definition of discrimination in the ADA, per 42 U.S.C. §12112(b)(5)(A), includes not making reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability absent an undue hardship on the operation of the business.
2. Since the failure to accommodate is specifically listed in the definition of disability discrimination, claims based upon the employer’s failure to offer reasonable accommodation involve direct evidence. Therefore, if the factfinder accepts the employee’s version of the facts, no inference is necessary to conclude that the employee has proven this form of discrimination.
3. While cases do exist talking about how failure to accommodate cases are analyzed under the indirect evidence method of proof, those cases trace back to a single Rehabilitation Act case. While the Rehabilitation Act and the ADA have many similarities, they are not identical. Accordingly, existing Sixth Circuit precedent saying that failure to accommodate cases are analyzed under the direct evidence approach prevails.
4. Fisher also provided additional direct evidence of discrimination in the form of an alleged policy against accommodating personal disabilities. According to both Fisher’s testimony and notes from a nurse at his doctor’s office, Nissan refused to allow him to return to work with restrictions. Yet, Fisher claimed to have heard of at least two coworkers permitted restrictions and reassignment to easier positions after suffering on-the-job injuries. When he asked his supervisor about this, one of his supervisors explained that Nissan does not accommodate personal restrictions (i.e. disability not occurring on the job).
5. If direct evidence is involved, Fisher bears the burden of establishing: 1) that he is a person with a disability; and 2) that he is otherwise qualified for the position despite his or her disability: a) without accommodation from the employer; b) with an alleged essential job requirement eliminated; or c) with a proposed reasonable accommodation. Nissan bears the burden of proving that a challenge job criterion is essential and either: 1) a business necessity; or 2) the proposed accommodation will impose an undue hardship upon Nissan.
6. A neutral policy is of no moment when direct evidence is involved. That is, an employer cannot illegitimately deny an employee a reasonable accommodation pursuant to a general policy and then use that same policy as a so-called neutral basis for firing him.
7. While absences may have been the basis for the termination, using absences as the basis for a termination doesn’t work where the absences are due to an underlying failure to accommodate the disability. That would be the same as allowing the school lacking an elevator to accommodate a teacher with mobility problems to go ahead and fire that individual for being late to class after it took too long for that individual to climb the stairs between periods.
8. The question to ask is whether the absences could have been avoided with reasonable accommodations.
9. When it comes to failure to accommodate cases, the plaintiff bears the initial burden of showing that an accommodation is reasonable on its face, i.e., ordinarily or in the run of cases. The defendant then has to show special circumstances demonstrating an undue hardship in the particular circumstances or that the proposed accommodation eliminates an essential job requirement.
10. Whether a proposed accommodation is reasonable, is a question of fact.
11. Plaintiff identified three potential accommodations that could have help with the transition back to full-time employment, including: a transfer to a different position; extra breaks; or a temporary part-time schedule.
12. Under the ADA, 42 U.S.C. §12111(9)(B), reasonable accommodations include reassignment to a vacant position. To show disability discrimination in the reassignment context, a plaintiff has to show either that he requested and was denied reassignment to a position for which he was otherwise qualified or that he requested and was denied some specific assistance in identifying job for which he could qualify.
13. Where an employee requests assistance in identifying vacant positions (magic words are not required), then the employer has a duty under the ADA to ascertain whether it has some job that the employee might be able to fill. Once that is done, the plaintiff generally must identify the specific job he seeks and demonstrate that he is qualified for the position if he is to overcome summary judgment.
14. While Fisher did not understand the ADA framework, he did realize that he had some kind of right to hold onto his job or to get a little bit of assistance somehow, but Nissan provided neither assistance nor explanation. He also repeatedly requested a move to something easier in the same way as other people have been moved when they suffered on-the-job injuries. So, a reasonable factfinder could conclude that these interactions were requests for accommodations, including both for specific transfers and for assistance in identifying jobs for which Fisher could qualify.
15. Considering the requests for accommodation, Nissan was obligated to do the following: 1) identify the full range of alternative positions for which plaintiff satisfied the employer’s legitimate, nondiscriminatory prerequisites; 2) determine whether the employee’s own knowledge, skills, and abilities would enable plaintiff to perform the essential functions of any of those alternative positions with or without reasonable accommodation; and 3) consider transferring the plaintiff to any of those other jobs, including those that would represent a demotion.
16. While the off-line positions were not a reasonable request because the positions were either not vacant or asked Nissan to trump the rules of a seniority system, other positions were vacant and did not create a situation where a seniority system was upended. Accordingly, Nissan then gets the opportunity to show that Fisher’s transfer request would create an undue hardship or remove an essential function of the job and they have not done that. The accommodation of Fisher has no bearing on whether a subsequent transfer request was unreasonable.
17. Once an employee requests an accommodation, the employer has the obligation to engage in the interactive process.
18. Both parties have a duty to participate in good faith when it comes to the interactive process.
19. Once an employee establishes a prima facie case showing that he proposed a reasonable accommodation, the employer then has the burden of showing how the accommodation causes an undue hardship.
20. Whoever blows up the interactive process bears the consequences.
21. While an employer is not required to propose counter accommodations, doing so may be evidence of good faith.
22. An employer who determines what accommodation it is willing to offer before ever speaking with the employee does not participate in good faith.
23. There was also a discovery dispute and the Tennessee intentional infliction of emotional distress claim. The court resolved both of those in favor of the defendant by affirming the District Court’s decision on those issues.

 

III

Thoughts/Takeaways

 

1. There is lots of good information in this case for the ADA practitioner.
2. The court consistently uses the term “otherwise qualified.” However, that term is a Rehabilitation Act term and not an ADA term. The ADA term is, “qualified.” The distinction is one for academics as the substantive meaning between the two are identical.
3. Absolutely huge that this court says failure to accommodate cases are always direct evidence. The distinction between direct evidence and indirect evidence can get really confusing. In fact, as we discussed here, one jurisdiction is ready to throw up its hands with respect to the distinction and just rely on convincing mosaic. As far as I can tell, one of the critical things about failure to accommodate cases being direct evidence per se is that it becomes much easier than under the indirect evidence test for plaintiff to survive summary judgment.
4. Absolutely true that the ADA is based upon the Rehabilitation Act. Also, absolutely true that the two laws are extremely similar and get interpreted in the same way. However, they are not identical. The most common way they are not identical is with respect to causation. There are some other ways depending upon the title of the ADA involved, in which the two laws are not identical. So, you do want to be on your toes with respect to how the ADA and the Rehabilitation Act may differ from each other. Offhand, I can think about three or four differences that you may come across quite often.
5. This case says that if you have a Rehabilitation Act claim, it still may be possible to insist on having a failure to accommodate case handled under the indirect evidence test.
6. I have seen this before where a court says that a plaintiff establishing whether they are qualified/otherwise qualified for the position involved as one of the options showing that an essential job function can be eliminated. I’ve said it before that I just don’t get this. The ADA does not require an essential job function to be eliminated. It does require that the essential job function be reasonably accommodated. It also in the title I context, allows for the transferring of marginal functions of the job onto others. The court seemed to say contradictory things by saying one thing about what the plaintiff has to show and then saying the opposite when it comes to describing undue hardship. At least, when the court describes undue hardship, it does get it right by saying waving an essential function of the job is an undue hardship. I still don’t get the prima facie part where they say a plaintiff could show an essential job function could be eliminated.
7. Terminating an individual for absences will not work where the absences are the result of the employer failing to accommodate the person’s disability.
8. Whether an accommodation is reasonable is a question of fact.
9. Magic words are not required when it comes to asking for a reassignment.
10. Depending upon the jurisdiction, if the plaintiff asked for help in figuring out the way out of a bad situation, such as reassignment, the employer may have the obligation to work with the plaintiff to identify the full range of alternative positions for which the plaintiff is qualified per the ADA. Such a practice is good preventive law in any event.
11. The mandatory reassignment rules apply to vacant positions whose transfer would not involve upending a seniority system. Courts differ on the mandatory reassignment question, as we discussed here. So, check your jurisdiction.
12. The interactive process requires both parties exercise in good faith with the one blowing up the interactive process bearing the consequences.
13. Good idea for the employer to propose counter accommodations if the employee’s accommodations don’t work for the employer as that is evidence of good faith.
14. An employer should never determine the accommodation they are willing to offer without speaking with the employee first.
15. 100% return to work policy are a really bad idea, which is a point we have discussed before, such as here.
16. Since failure to accommodate causes of action are a direct evidence matter in the Sixth Circuit, that also strongly suggests that the failure to accommodate cause of action does not require an independent adverse action in the Sixth Circuit. For this issue, see this blog entry.
17. Another really bad idea, is having a policy, practice, or procedure where you only accommodate disabilities that occurred on the job and not those that were pre-existing or occurred in another way. Under the ADA, it simply doesn’t matter how the person becomes a person with a disability. It only matters that the person is a person with a disability.