by Martin J. Regimbal
The Americans with Disabilities Act (ADA) prohibits employers from, among other things, discriminating against employees because of their disabilities. Under the ADA, discrimination includes an employer’s failure to provide reasonable accommodations for the known physical or mental limitations of employees.
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In a recent decision, the U.S. 5th Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas) addressed an employee’s obligation once he has accepted a reasonable accommodation that is considered less than ideal. Let’s take a look.
Facts
“Kevin” was employed by the Austin (Texas) Public Works Department (PWD) as a street and drainage maintenance senior. After an on-the-job injury, he took leave under the Family and Medical Leave Act (FMLA).
After his leave expired, the city attempted to find him work through its return-to-work program, but it was ultimately unable to do so because of his “no-duty” medical status. Even though Kevin had exhausted his available leave under the FMLA and the return-to-work program, the city allowed him to remain on leave.
Finally, in April 2012, the city offered Kevin an administrative assistant position in the PWD after his doctor released him to work limited duty. Despite his reservations, Kevin accepted the position in May 2012. Because of his lack of qualifications, the city provided him training opportunities and allowed him to shadow another administrative assistant.
However, he failed to take advantage of those opportunities, was frequently tardy, lied about his attendance, used work time to play games and tend to personal business, and failed to perform the duties of his assigned position.
After unsuccessfully attempting to find Kevin other positions in the PWD, the city terminated him in October 2012 for subpar performance and misconduct. He filed suit under the ADA, claiming the city terminated him because of his disability and failed to provide him a reasonable accommodation. The city requested summary judgment (dismissal without a trial) on both claims, which the trial court granted. Kevin appealed to the 5th Circuit.
Court’s Decision
To prevail on a wrongful termination claim under the ADA, an employee must prove that he (1) has a disability, (2) was qualified for the job he held, and (3) was subjected to an adverse employment action because of his disability.
With respect to Kevin’s wrongful termination claim, the court held that he failed to raise an issue of material fact regarding whether the city terminated him based on his disability. He offered no evidence to show that the city’s reliance on his misconduct and poor performance was pretextual (an excuse) or blended with discriminatory motives.
To prevail on a failure to accommodate claim under the ADA, an employee must prove that (1) he is a qualified individual with a disability, (2) his disability and consequential limitations were known by the employer, and (3) the employer failed to provide a reasonable accommodation.
The city conceded that Kevin was a qualified individual with a disability and that it was aware of his disability, limitations, and need for an accommodation. However, the city disputed the argument that it failed to provide reasonable accommodations.
Once an employee makes a request for an accommodation, both he and the employer are required to engage in an interactive process to determine whether a reasonable accommodation is available. The court found that the city satisfied its obligation to engage in the interactive process when it offered Kevin the administrative assistant position, which he ultimately accepted.
Kevin, however, claimed that the city failed to participate in the interactive process after it became clear that he was not succeeding in the administrative assistant position and that the city failed to consider him for other positions outside the PWD.
Based on the uncontroverted evidence regarding Kevin’s misconduct and poor performance (the same evidence that doomed his wrongful discharge claim), the court held that he failed to engage in the interactive process when he did not attempt to perform his new job in good faith.
The city was not required to find him a new job after he showed no desire to succeed in the first position. Dillard v. City of Austin, Texas, U.S. Court of Appeals 5th Circuit, 2016 WL 4978364.
Takeaway
The interactive process is a two-way street. Employers have an obligation to engage in the interactive process in good faith, but so do employees. Once an employee accepts a position as a reasonable accommodation, he must attempt to capably perform that job as long as he has an opportunity to succeed (i.e., as long as he is not placed in a “destined to fail” role).
Martin J. Regimbal, a shareholder of The Kullman Firm, and an editor of Mississippi Employment Law Letter, can be reached at 662-244-8824 or mjr@kullmanlaw.com.