Claim of failure to accommodate disability rejected due to inadequacy of employee’s efforts in “interactive process”

In Russell v. TG Missouri Corp. (8th Cir. 8/26/03), the plaintiff had bipolar disorder and was working 12-hour days.

Her doctor wrote the employer a letter requesting that she be returned to 8 hour days as soon as possible because the long days were having an adverse effect on her mental status. The employer called the doctor’s office to find out whether she was also limited to 40 hours a week and was informed that the restriction referred only to the number of hours per day, not per week. This was communicated to the plaintiff.

When told on a Friday that she would be required to work overtime the following Saturday, the plaintiff left work early without permission and then failed to report for work on Saturday. She was told on Monday she had been terminated for job abandonment and insubordination.

She claimed the employer violated the ADA by failing to provide the accommodation of a 40 hour workweek.

The Eighth Circuit found no genuine issue of fact as to whether the employer knew or should have known she also required accommodation in terms of total hours per week. It therefore could not be liable for failure to accommodate.

However, the plaintiff argued the employer failed to engage in good faith in an interactive process to evaluate possible accommodations.

The court rejected this argument, saying that she knew the employer believed she could work a six-day schedule consistent with her doctor’s restrictions, and that under these circumstances if she needed a 40 hour weekly limitation and believed her doctor had intended such a limitation, it was incumbent upon her to follow up. Her failure to do so, despite having the opportunity, supported the conclusion that she, not the employer, stalled the interactive process.

The ADA does require employers to engage in an interactive process with an employee with a disability in order to consider possible accommodations. However, where, as here, the employee is the one responsible for failure of that process, the employer is not liable.

Often, although it may seem obvious to the employer that no accommodation is possible, it is still desirable to be able to show some efforts to verify this, such as correspondence with the employee and/or medical personnel. It is not uncommon for the employee to drop the ball, providing an additional layer of defense. Here, it was helpful, though perhaps not determinative, that the employer took the extra step of calling the doctor’s office to inquire about the 40 hour work week, and then notified the employee of the outcome of this inquiry.

Change in reason given for termination not sufficient evidence of pretext to prevent summary judgment for employer

Another issue in Russell concerned a change in the employer’s documentation of its reasons for termination and its failure to follow its own policies when it terminated her.

Originally the employer decided to terminate the plaintiff for leaving her shift without permission, and completed a “status change” form indicating “resignation” as the “reason for change.” Subsequently, after the plaintiff failed to report for work the next day, the form was altered to indicate “termination” as the “reason for change,” and to change the date to Monday, when she was notified of her termination.

The court rejected the plaintiff’s contention that this change in the reasons given for the termination of employment was sufficient evidence of pretext (that the reasons given were a coverup for discrimination) to avoid summary judgment. The court distinguished its decision in Young v. Warner-Jenkinson Co., 152 F.3d 1018 (8th Cir. 1998), in which the employer’s change in explanations for a termination was found to be evidence of pretext. Significantly, the court quoted from Young that in that case there was evidence supporting reasonable inferences that the employer had abandoned its original explanation and that the current explanation was contrived.

In Young, the principle was not stated as allowing a finding of pretext simply because different explanations were given, but as follows:

“When an employer has offered different explanations for an adverse employment action and when evidence has been presented that would allow a reasonable trier of fact to disbelieve each explanation, the trier of fact may reasonably infer that the employer is hiding something – that is, that the true explanation is unlawful discrimination.”

In Russell, both explanations made sense to the court. It was undisputed that the initial decision to terminate was based on the plaintiff’s early departure without permission, which could (arguably) be construed as a resignation (job abandonment). The employer did not abandon that rationale, but simply added her failure to report for work the next day when ordered to do so as an additional grounds for discharge. Each of the two justifications was asserted as soon as the events occurred and there was no issue of fabrication or factual dispute as to the occurrence of those events.

The court also rejected the plaintiff’s argument that pretext was shown by the employer’s failure to follow its own policies because, by its own definitions, early departure from work without permission was an unscheduled absences, not job abandonment, and the attendance policy did not provide for termination until the eighth incident of unscheduled absences within a 12 month period (hers was only the third such incident).

The court relied on the opening paragraph of the employer’s written policy on absenteeism, which made clear that it merely set forth “guidelines” and that each case must be reviewed on its own merits with a high degree of supervisory/managerial judgment. Particularly given this statement of discretion, the court refused to get involved in whether under the employer’s policies the plaintiff’s early departure was technically merely an unscheduled absence, or whether it was a job abandonment, stating that in either event it provided a legitimate nondiscriminatory basis for disciplinary action.

Remember, while a good Court of Appeals opinion makes the decision sound easy, easy cases rarely make it to the Court of Appeals. This was no exception — it could have gone the other way. The employer’s change in the reasons given was the type of evidence that can definitely hinder the defense of a discrimination case, as was its questionable application of its own attendance policies. Such sloppy HR management can be costly, even if the ultimate legal outcome is favorable.

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