Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

EEOC factors on essential functions of the job

Qualified Otherwise Qualified Means Factoring in Reasonable Accommodations

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Today’s blog entry returns us back to the world of employment law. One of the things that drives me crazy is that people, including judges, sometimes forget whether a person is qualified to do a particular job means assessing whether the individual can perform the essential functions of the job WITH or without reasonable accommodations. Today’s case, Todd v. Covenant Security Services, Inc., from the Western District of Kentucky, does an excellent job of walking through the whole essential function analysis and making clear that it is really important to focus on whether the essential functions of the job can be done WITH or without reasonable accommodations. As usual, the blog entry is divided into categories, and they are: facts; framework for handling essential function claims; court’s reasoning essential functions of the job; court’s reasoning interactive process; court’s reasoning retaliation; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff provided security services to defendant’s customer, Kimberly-Clark, in its Owensboro, Kentucky facility for 6 ½ years. He was assigned to the second shift with work hours being from 3 PM until 11 PM. His actual job was more like a clerk job with his main responsibilities operating or manning the over the road truck desk and the shuttle desk and paperwork related to both. He received favorable employment evaluations from the defendant.

The written job description for the security officer position at the Kimberly-Clark facility in place at the time Todd was hired had a physical requirement of an ability to walk several miles per day. Plaintiff testified that security officers patrolled rounds early in his employment, but the patrol rounds were not performed during the majority of his employment. He also testified that he voluntarily performed patrol rounds during those years and was permitted to use his own vehicle for a Kimberly-Clark vehicle during the exterior facility and parking lot rounds. In 2013, plaintiff suffered a disabling impairment and notified the defendant that he had a physical issue relating to his back and was unable to work more than 32 hours per week. In response, the defendant adjusted his schedule.

In January 2015, an issue arose with plaintiff’s delay in turning in bills of lading during his shift. That led to his immediate supervisor and the site supervisor sending an email mandating the use of patrol sheets on all rounds. After receiving the email, plaintiff sent an email to the site supervisor requesting a reasonable accommodation for the additional job responsibilities of the mandatory patrol rounds on each shift. Plaintiff specifically requested some type of mobility device to enable him to make rounds inside the plant and an exception to allow his personal vehicle beyond the gate to deliver the bill of ladings. The defendant did make a temporary accommodation in response to plaintiff’s request by temporarily excusing him from performing the duty of a patrol during the shift. Evidence showed that another individual voluntarily handled the walking patrols from March 5, 2015 until at least September 2015. At some point, that person notified the defendant that he no longer wished to perform all the walking patrols.

In May 2015, plaintiff’s physician completed the medical inquiry for reasonable accommodations under the ADA form at the defendant’s request. That form was submitted to the defendant by the plaintiff. The foreman noted that the plaintiff suffered from chronic low and thoracic back pain and that the condition was a permanent, long-term physical impairment that substantially limited plaintiff’s ability to walk, but that he was able to work. In July 2015, defendant modified the written job description for security officers to include routine vehicle patrols of the facility parking lot and exterior patrols of the facility as well as routine internal foot patrols of the facility.

On October 6, 2015, plaintiff’s immediate supervisor, site supervisor, and defendant’s human resources officer requested to meet with plaintiff. At that meeting, plaintiff again requested a reasonable accommodation to enable him to complete patrol rounds. The accommodations he requested included: 1) plaintiff would handle the heavier traffic volume desk and his co-worker would handle lower traffic volume desk in the patrol rounds; 2) defendant would provide him with a mobility device; 3) plaintiff’s supervisor would perform the patrol rounds on the second shift as he volunteered to do; and 4) plaintiff be permitted to use his own vehicle or drive a vehicle of the defendant’s in order to do to patrol rounds outside of the facility. Plaintiff represented that his site supervisor and the human resources officer denied the accommodations, informed him that he could not perform the job under the new requirements, and terminated his employment. He also represented that he offered to stay until the employer hired someone to replace him but was informed that the defendant had already hired his replacement, a 22-year-old male.

Plaintiff brought suit in state court under both the ADA and the Kentucky Civil Rights Act as well is under the Age Discrimination in Employment Act. Of course, defendant remove the action to federal court. The court winds up dismissing the Age Discrimination in Employment Act claim because the prerequisite procedural steps were not done.

II

Court’s Reasoning Framework for Handling Essential FunctionsClaims

  1. Since the language of the Kentucky Civil Rights Act mirrors the ADA, they both get analyzed under the ADA framework.
  2. For a plaintiff to prevail on a failure to accommodate claim, a plaintiff has to show that: 1) he has a disability under the ADA; 2) he is a qualified individual for that particular position; 3) the employer knew or had reason to know of his disability; 4) he requested a reasonable accommodation; and 5) the employer failed to accommodate him.
  3. If the prima facie case is met, an employer can rebut that by showing that the proposed accommodation either eliminates the essential function of the job or the proposed accommodation imposes an undue hardship on his business.
  4. Under the ADA, 42 U.S.C. §12111(8), a person is a qualified individual where they can with or without reasonable accommodation perform the essential functions of the employment position they hold or desire.

III

Court’s Reasoning Pertaining to Essential Functions of the Job

  1. A job function is essential if its removal fundamentally alters the position.
  2. In considering whether a job duty is essential, the EEOC, at 29 C.F.R. §1630.2(n)(3)(i)-(vii), looks to a variety of factors: 1) the employer’s judgment as to which functions are essential; 2) written job description prepared before advertising or interviewing applicants for the job; 3) the amount of time spent on the job performing the function; 4) the consequences of not requiring the incumbent to perform the function; 5) the terms of the collective bargaining agreement; 6) the work experience of past incumbents in the job; and/or 7) the current work experience of incumbents in similar jobs.
  3. Whether a function is essential is so highly fact specific that it is typically not suitable for resolution on a motion for summary judgment.
  4. The ADA does not limit an employer’s ability to establish or change the content, nature, or functions of a job (this is the big issue with respect to what Walmart is doing with the Greeters positions).
  5. Evidence exists that the necessity and schedule of patrol rounds was determined by both the defendant and Kimberly-Clark and that the patrol rounds were implemented to ensure safety at the facility.
  6. Just because the defendant forgave the mandatory patrol rounds for a period of just about eight months, does not mean that the daily patrol rounds were not essential. That is, an employer does not concede for all time that a function is nonessential simply because it allows an employee to stop performing that function temporarily.
  7. Plaintiff presented no evidence to rebut the conclusion that patrol rounds were essential to the security officer position.
  8. Plaintiff bears the initial burden of proposing an accommodation and showing that the accommodation is objectively reasonable.
  9. An accommodation is reasonable if it is necessary in light of the plaintiff’s known physical limitations.
  10. The reasonableness of the requested accommodation is generally a question of fact.
  11. An employer is under no obligation to accommodate individuals by shifting essential job functions onto others.
  12. Genuine disputes of material fact exists whether plaintiff could have performed the essential functions of the job of the security officer with reasonable accommodations. In particular, plaintiff requested defendant provide him with a mobility device and/or permit him to use his own vehicle or a vehicle of the defendant in order to do to patrol rounds outside of the facility.
  13. While defendant claimed that the use of mobility device was rejected by Kimberly-Clark for safety reasons, defendant did not provide any evidence from Kimberly-Clark that the mobility device was rejected on the basis of safety or that the concerns rose to the level of undue hardship.
  14. The rejection of the mobility device for the external facility patrol on safety grounds is suspect given that the defendant and Kimberly-Clark permitted security officers and other individuals to walk or patrol the exterior of their facility on foot despite the heavy volume of large vehicles in the parking lot.
  15. A reasonable jury could believe that since mobility devices come in so many different varieties, the defendant and the plaintiff could have found a mobility device that was small, compact, and either permitted the plaintiff to stand the entire patrol round or transfer from a sitting to standing position during the patrol rounds.
  16. A reasonable jury could also believe that the defendant and the plaintiff could have found a mobility device that would limit the speed of the device to the equivalent of an individual briskly walking in order to minimize the device interfering with manufacturing operations.
  17. While an employer is not required to eliminate essential functions of a job in order to accommodate an employee with a disability, permitting one employee to patrol inside and another employee to proposal outside is not eliminating an essential function of the job. Rather, that it just restructuring the job.

IV

Court’s Reasoning Interactive Process

  1. The ADA imposes a duty on the employer to engage in an interactive process.
  2. The purpose of the interactive process is to determine the appropriate reasonable accommodation for a given employee. That process should identify the precise limitations resulting from the disability and the potential accommodations that overcome those limitations.
  3. Both parties to the interactive process are required to participate in the process in good faith.
  4. Where an employer readily meets with the employee, discusses any reasonable accommodation, and suggest other possible positions for the plaintiff, the employer has then generally fulfilled its obligations.
  5. Prevailing on an interactive process claim, means that plaintiff has to show that: 1) he is qualified for the position; 2) the employer failed to participate in the interactive process in good faith; and 3) a reasonable accommodation would have been possible had the employer participated in the process.
  6. When plaintiff made his request for reasonable accommodation, no one from the defendant met with him regarding his request for reasonable accommodation for approximately seven months.
  7. Not until the defendant had already hired someone to replace the plaintiff, did a meeting occur to discuss reasonable accommodations.
  8. No evidence exists that the defendant suggested any alternative reasonable accommodations. Instead, the record shows that the defendant refused all of the suggested accommodations proposed by the plaintiff.
  9. A reasonable jury could find that the defendant did not attempt to entertain plaintiff’s requested accommodations. The jury could also reasonably conclude that the defendant failed to engage in the interactive process in good faith thereby preventing the parties from discovering and implementing accommodation that might have worked for the plaintiff to remain as a security officer.

V

Court’s Reasoning Retaliation

  1. Prevailing on a retaliation claim means showing: 1) plaintiff engaged in a protected activity; 2) the exercise of protected rights was known to the defendant; 3) the defendant took adverse employment action against the plaintiff; and 4) a causal connection between the protected activity and the adverse employment action existed.
  2. Requesting a reasonable accommodation is a protected act.
  3. Once a plaintiff has established a prima facie case, then the employer has to show a legitimate nondiscriminatory reason for its actions.
  4. The only evidence presented by the plaintiff suggest that defendant terminated the plaintiff because of his disability and not because he requested an accommodation for that disability. Accordingly, a reasonable jury under the facts could not find that the defendant discharged the plaintiff because he asked for an accommodation.

VI

Takeaways

  1. Oftentimes, you see cases where the disability discrimination claim fails but the retaliation claim continues because retaliation claims are broader in their scope. This is not one of those cases.
  2. At the very beginning of the opinion, the court says that the mere existence of a scintilla of evidence in support of the non-moving party’s position on summary judgment is insufficient. That is, there has to be evidence and with the jury could reasonably find for the nonmoving party. We have seen this scintilla language before here, where that court said the exact opposite. The bottom line here is check your jurisdiction. Depending upon the judge and your jurisdiction, very different views of how to deal with summary judgment motions exist.
  3. If a job function is essential, you are under no obligation as an employer to waive it. However, keep in mind that the analysis focuses on whether the essential functions of the job can be performed WITH reasonable accommodations. Also, don’t forget about restructuring the job. That is, switching essential functions of various jobs around.
  4. I wonder what would have happened if the employer had called the Job Accommodation Network first?
  5. Not all jurisdictions have a separate cause of action for interactive process claims. That is, some jurisdictions don’t have a separate claim for interactive process but fold it into the broader ADA claims. Many jurisdiction do have a separate cause of action for violation of the interactive process. Again, be sure to check how your jurisdiction deals with that.
  6. If you as an employer are going to not think about restructuring of the position, be prepared to show an undue hardship (i.e. fundamental alteration), on the business. Also, remember any denial of an accommodation gets measured against the undue hardship standard.
  7. Just because an employer waives an essential function for a period of time, that does not create a situation where the employer is prevented from arguing later that they don’t have to waive that essential function. Of course, this does raise the question of why you would want to waive an essential function of the job in the first place.
  8. Essential function of the job is something that can be decided on summary judgment, but convincing a court of that is not an easy task.
  9. It is much harder to convince the court that the reasonableness of a reasonable accommodation request should be decided on summary judgment as that is generally a question of fact. In making this statement, the court cited to the deaf lifeguard decision we discussed here.
  10. Restructuring and shifting job functions onto others are different concepts. Shifting essential job functions onto others implies a one-way street. Restructuring implies that essential functions of the job are being flipped from both positions. Shifting an essential function of the job onto someone else is not required, but restructuring may be. From all the cases I have read over the years, restructuring of the position is not something you read a lot about, and therefore, is probably an underutilized strategy when it comes to figuring out reasonable accommodations.
  11. If a request for reasonable accommodation is made, don’t wait seven months to deal with it. Get on top of it right away. Also, be sure that a true interactive process occurs.
  12. While it isn’t unusual for a disability discrimination claim to fail, but a retaliation claim continues, occasionally, such as here, you see the situation where the disability discrimination claim continues but the retaliation claim fails.
  13. The EEOC factors for essential functions drive me nuts because of the complexity. In the vast majority of situation, you can keep it simple by focusing on whether the function is fundamental to the job. Another way to look at it is just like the court described in the case we are discussing here, which is ask if the functions removal fundamentally alter the position.
  14. Keep job descriptions current. What matters is what is happening on the ground. Anything happening on the ground will prevail over what the job description says.
  15. Make sure your employees understand what is the interactive process. That is an ideal situation for training and role-playing.
  16. I love the way this case attacks handling whether a person is capable of performing the essential functions of the job with or without reasonable accommodations (i.e. qualified under the ADA and otherwise qualified on the Rehabilitation Act). It also does a wonderful job of explaining the interactive process. So, I strongly recommend this case for reading for anyone trying to get a handle on what it means to be otherwise qualified/qualified. I also strongly recommend it for anyone trying to understand the interactive process. I think you will and is library the actual

Just What Does Qualified/Otherwise Qualified Mean Anyway?

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Today‘s blog entry comes from the Sixth Circuit and it reminds us of the following: 1) job descriptions must be kept current; 2) essential functions of the job must reflect the reality of how the job is performed; 3) whether a person is a qualified person with a disability under the ADA depends upon whether they can do the essential functions of the job with or without reasonable accommodations; and 4) if it isn’t broken, don’t fix it. The case of the day is Camp v. Bi-Lo, LLC, an unpublished decision from the Sixth Circuit on October 21, 2016.  As is usual, the blog entry is divided into categories and they are: facts; court’s reasoning as to whether lifting 35 pounds was an essential function of the job; court’s reasoning as to whether the plaintiff could perform the essential function of the job with reasonable accommodations even assuming lifting 35 pounds was an essential function of the job; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff suffered from scoliosis since he was a teenager and had worked with a bad back since that time. He worked for 38 years for the defendant and its predecessor as a stock clerk. In March 2012, he was employed on the overnight third shift in one of the stores in Chattanooga, Tennessee. He was one of three people, along with Jimmy Bishop and Kent Kountz, who worked as a team stocking the grocery with product each night. Bishop was the head stock clerk and the plaintiff’s immediate supervisor, while Kountz was a stock clerk along with the plaintiff. All three men worked to load stock from pallets and put it on store shelves. Somewhere around March 2012, the store director arrived at the store at the end of the third shift and found that the three third shift stock clerks had not finished shelving all the products. When he asked why, Bishop told him that the plaintiff had a bad back and they had to help with heavy stuff to get it done. The store director testified that Bishop told him that it was hard for them to get done with the plaintiff on restrictions. The store director was not aware that the plaintiff suffered from a bad back prior to this occasion nor was he aware of any other time that the third shift crew failed to finish on time. About two weeks later, the plaintiff met with a human resources specialists of the company who asked him if he could perform his duties to which he replied that he could still do everything. He also said that he knew what he could lift and what he could not and that he could do all the other things except lift the real super heavy items. The HR specialist gave him a store clerk job description and a physical capability testing sheet to be completed by a physician. That job description, which was created more than 30 years after he began his employment, identified lifting and that a person had to lift 20 pounds constantly and 20-60 pounds frequently. A doctor concluded that the plaintiff was capable of lifting 20 pounds frequently and less than 10 pounds constantly with a maximum safe lifting weight of 35 pounds. As a result, the plaintiff was instructed to take sick leave and vacation days followed by short-term disability in order to reach his 62nd birthday, which would enable him to start drawing Social Security and getting a retirement check. When the plaintiff’s short-term disability ended, plaintiff requested to return to work. However, the human resources specialist told him he could not return unless he had been cleared by a doctor to lift 60 pounds. A back-and-forth ensued, including the plaintiff asking for the same arrangement that had worked well before. The back-and-forth was unsuccessful and he was terminated from his position as a stock clerk. He then brought suit alleging violations of the ADA. The District Court granted summary judgment for the defendant. Plaintiff appealed to the Sixth Circuit and the Sixth Circuit, for the reasons below, vacated and remanded the lower court’s decision. Plaintiff also brought an ADEA claim, which is not the subject of this blog entry, and the Sixth Circuit vacated and remanded the District Court’s summary judgment on that point as well.

II

Court’s Reasoning with Respect to Whether Lifting 35 Pounds Is an Essential Function of the Job?

  1. It is certainly true that the ADA says that consideration shall be given to the employer’s judgment as to what functions of the job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, that description shall be considered evidence of the essential functions of the job. However, in this case, the job description was written some 30 years after he had been hired for the position.
  2. The EEOC in its implementing regulations at 29 C.F.R. §1630.2(n) lists several non-exhaustive and non-dispositive factors to consider in trying to figure out whether a particular function of the job is essential, including: the employer’s judgment; the written job description; the amount of time spent performing the function; the consequences of not requiring performance of the function; the work experience of past incumbents of the position; and the current work experience of incumbents in similar jobs.
  3. Whether a function of the job is essential is a question of fact not typically suitable for resolution on summary judgment.
  4. The human resources specialist stated that he had never observed the plaintiff’s work and had not talked with the plaintiff or his coworkers about the plaintiff’s job performance.
  5. No evidence existed in the record as to what the job description was for a stock clerk when the plaintiff was first hired in 1974.
  6. The plaintiff and his two coworkers on the third shift testified that they had never seen a job description for stock clerk before this litigation.
  7. Plaintiff’s immediate supervisor testified that heavy lifting was not an essential function of a job and that the plaintiff did his job fine. Further, the Sixth Circuit has held previously that a supervisor’s testimony may rebut the written job description concerning what constitutes an essential function of the job.
  8. The defendant did not submit any evidence outside of the job description demonstrating that heavy lifting is a significant percentage of the job requirements or that plaintiff’s inability to lift more than 35 pounds was an actual burden on the defendant. In fact, according to plaintiff’s supervisor, heavy lifting was only a very small part of the work done by third shift stock crew. Other coworkers testified that the stock the plaintiff could not lift was only a very small part of the total stock.
  9. The plaintiff and his coworkers testified that the plaintiff could be working on putting items on the shelves while the other two men lifted the heavier item so as to result in no loss in efficiency due to plaintiff’s disability.
  10. The plaintiff’s immediate supervisor testified that allowing the plaintiff to continue as a stock clerk without the ability to lift more than 35 pounds would have minimal effect on store operations.
  11. By working together, the three-man team in all but the one incident triggering the termination process, had been able to shelve all the product during the designated shift. No additional stock clerks were ever requested or needed to work the third shift. Therefore, any consequences resulting from the plaintiff’s disability were de minimis.
  12. No public safety issue was involved, which would necessitate a stricter reading of what might be an essential function of the job. Rather, this is a case where three men working the night shift together in a grocery store figured out a way to help each other out.
  13. Since the factors laid out by the EEOC as to what constitutes the essential function of the job are not exclusive and are not dispositive, another factor to consider is that the plaintiff performed these job duties for years with the help of his coworkers. So, plaintiff’s actual on-the-job experience as well as that of his coworkers provides evidence to rebut the defendant’s contention that heavy lifting is in fact an essential function of the stock clerk job.
  14. Informal accommodations should be considered in a positive light. After all, the implementing regulations at 29 C.F.R. §1630.2(o)(3) talk about an informal, interactive process between the employer and the employee in order to identify limitations arising from a disability and the eventual reasonable accommodations that can overcome those limitations.

III

Court’s Reasoning As to Even Assuming Lifting 35 Pounds Was an Essential Function of the Job, Could the Plaintiff Perform That Function with or without Reasonable Accommodations?

  1. Plaintiff was generally meeting all job expectations.
  2. Defendant did not cite any other examples where plaintiff’s inability to lift more than 35 pounds caused or contributed to a delay in restocking the store’s shelves.
  3. No indication in the record showing that plaintiff was failing to show up to work, or that his colleagues were covering for his absences, or that the third shift workers regularly failed to complete the task by the end of the shift.
  4. Plaintiff had been doing the job for a number of years without lifting the heaviest items and defendant did not present evidence to show that the informal accommodation had been a problem. Enough time had passed for any negative impact to be felt by the defendant to present additional evidence outside of the one incident triggering the termination.
  5. Defendant presented no evidence that accommodating plaintiff’s disability resulted in an undue hardship to coworkers. In fact, quite the opposite was true as the coworkers testified that it would no problem to assign the work among themselves in a way that allow them to get it all done. More specifically, his supervisor noted that the plaintiff’s inability to do heavy lifting did not create hardship on the coworkers because there was always work that the plaintiff could do that needed to be done while someone else was lifting the heaviest things. So, plaintiff’s disability had been informally and successfully accommodated by the three-man team without negatively impacting store operations for some time. Accordingly, a reasonable jury could find that the informal accommodation made by the three employees working the third shift was a reasonable response to one requirement of the stock clerk position. Therefore, even assuming lifting 35 pounds was an essential function of the job, plenty of evidence existed that the plaintiff was qualified for the stock clerk position with accommodations and that reasonable accommodation of the disability was possible without undue hardship to coworkers or disruption of the business operations.

IV

Takeaways

  1. If it ain’t broke, don’t fix it. Here, you had an informal reasonable accommodation that had worked successfully for years. You also had a valuable employee who was well-liked by his coworkers. So much so, that the coworkers, including his immediate supervisor, provided valuable testimony benefiting him and not the company. Why mess it up on a technicality, especially where the job description doesn’t reflect the reality of what is actually happening with the job.
  2. Speaking of which, make sure your job descriptions are current and reflect the reality of what is happening on the job. In that regards, it is helpful if people actually doing the job get involved in the job description writing and approval process.
  3. Informal accommodations are something that should be encouraged.
  4. If a person cannot do the essential functions of the job, that is not the end of the matter. That is, you also have to ask yourself the question of whether the employee can do the essential functions of the job with or without reasonable accommodations.
  5. If a position deals with public safety, it is possible that a court might use a stricter standard than the one here to determine whether a job’s function was essential.
  6. This is one of many cases saying that whether a job function is essential is a question of fact and one generally not suitable for resolution on a motion for summary judgment.
  7. The EEOC factors detailing how to go about figuring out what is an essential function of the job is a list that is neither exclusive nor dispositive.
  8. One wonders why the human resources specialist never talked to the plaintiff or to his co-workers about the plaintiff’s job performance. One also wonders why the defendant’s attorney would not have demanded such information from the HR specialist before issuing the termination letter (I am not saying that such a request of human resources was not made, but it doesn’t seem to be the case).
  9. This case is a lesson to the District Courts that they should not be so quick to grant a summary judgment motion on behalf of the defendant.
  10. The decision is unpublished, but nevertheless, it is a great case for understanding what it means to be a qualified person with a disability under the ADA and how job descriptions are used in that analysis.
  11. If an employee is on leave and desires to return to work, make sure you know the essential functions of the job as the job currently exists. Also, make sure when figuring out whether the person can do that job that you ask whether the essential functions of that job can be done with or without reasonable accommodations. Finally, don’t forget about the interactive process.