An employee learns that she has cancer. Shaken up by the diagnosis she returns to work the same day and tells the on-site coordinator of her diagnosis. The on-site supervisor then communicates same to the company’s administration and on-site operations manager for the regional area explaining that the employee has been sent home because of she just been diagnosed with cancer and needed some time off. The following day the employee and the on-site operations manager for the regional area’s have a conversation in which the employee tells the regional supervisor that she has cancer, that she has not seen a specialist yet, does not know what treatment would be, but is assuming it will be a long road ahead and anticipates needing to time to attend Dr.’s appointments. The employee also expressed concern about the upcoming season when the print shop is busier. At the end of the conversation, parts of which were in dispute, the regional area supervisor asked the employee if the employee was giving her two-week resignation notice. The employee responded that she did not want to stop working and asked the regional supervisor if she knew of any easier jobs available at the company. The regional supervisor said that she did not know of any and that all the jobs available in her division were the same kind of work the employee was doing. The regional supervisor claimed, which claim was disputed by the employee, that she then referred the employee to the company’s website where a complete listing of jobs could be found and instructed her to call the HR department with any questions. The employee’s version was that she had no memory being referred to the company’s website or to human resources, and she stated that she most certainly would’ve gone to the website to look for job openings if she had been told to do so. Thus, the employee never went to the website to look for another job openings nor did she discuss with anyone from the company the possibility of taking a leave of absence or talking to HR about her cancer diagnosis or going on short-term disability. Less than 20 minutes later, the employee sent an email to the regional supervisor resigning her position. Her explanation was that she decided to resign because she didn’t see any other options and that her resignation with the only way to avoid, “screwing her co-workers over.” Despite the resignation, the employee filed a claim alleging violations of the Americans with Disabilities Act, the Illinois Human Rights Act, and the Employee Retirement Income Security Act, and eventually the defense move for summary judgment. These are the facts taken from Suvada v. Gordon Flesch Company, 2013 WL 5166213 (N.D. Ill. September 13, 2013).

In rejecting the defense motion for summary judgment on the ADA claim, the court, northern district of Illinois, Eastern division, Judge Chang, reasoned as follows:

1. To prove a failure to accommodation claim, a plaintiff has to show: that she is a qualified individual with a disability; that the employer was aware of a disability; and that the employer failed to reasonably accommodate the disability. Both parties agreed that for purposes of the summary judgment motion, the only question was whether the employer failed to reasonably accommodate the disability.

2. The ADA requires very little of the employee to trigger the employer’s duty to engage in the interactive process. All the employee has to do is notify the employer of her disability, which the employee did in this case. That was enough to give notice to the employer of the employee’s disability and enable the employer to ask follow-up questions.

3. The employee went beyond notifying the employer, through the regional supervisor, of her disability since the employee also asked for an accommodation and asked if there were any easier jobs available.

4. That the employee did not specify the type of job she desired, did not mean that the employee did not trigger the interactive process and it also did not absolve the company of asking further questions to search for a reasonable accommodation. Accordingly, when the employee notified the employer of a disability and requested an accommodation, the employer’s obligation to engage in the interactive process was triggered.

5. The court noted that at the end of the conversation, the regional supervisor asked the employee if she was giving her two-week resignation notice, and the employee responded that she didn’t want to stop working. The court believed that that in of itself should’ve been enough to prompt the employer to consider whether there was a reasonable way to accommodate the employee’s limitations in her current job and if not that, whether the employee could be reassigned to a position that she could perform.

6. The ADA requires an employer to consider reassignment as one form of accommodation if the employee is unable to perform his job. (We have discussed this issue of reassignment numerous times in this blog).

7. The employee needed direction from the regional supervisor and what her options were and the regional supervisor failed to provide adequate guidance as to those options.

8. In light of the above, the court believed there was a genuine issue of material fact as to whether the regional supervisor obstructed the interactive process by withholding information about alternative job openings and therefore, it was a factual question as to whether the employer was responsible for the breakdown of the interactive process.

9. It isn’t enough for the employer to say that the employee knew of the company’s website and that the website contains job openings because the ADA imposes an affirmative duty on the employer to make reasonable accommodations for otherwise qualified, the ADA uses the term qualified now, employees with disabilities.

10. Since failure to engage in the interactive process by itself does not give rise to relief under the ADA, the plaintiff still has the obligation to prove at trial that a reasonable accommodation was actually available.

Having finished with the failure to accommodate claim, the court then turned to whether the employee was constructively discharged from her employment. Constructive discharge essentially means a person is involuntarily terminated but resigns instead.

1. Citing to a case, which I have frequently discussed in the editions of my book, the latest of which is now available from the American Bar Association, EEOC v. Sears, Roebuck and Company, 233 F.3d 432 (Seventh Circuit 2000), constructive discharge claims are allowed under the ADA.

2. To prove a constructive discharge claim a person has to show that she was constructively discharged and that the constructive discharge was motivated by discriminatory intent.

3. The court discussed the various forms that constructive discharge can take. The court said there were two different forms. First, the harassment is so intolerable that a reasonable person would have no choice but to quit. Second, where an employer acts in a manner so as to communicate to a reasonable employee that she will be terminated and accordingly that employee resigns, constructive discharge can occur there as well. The court referred to this as the handwriting on the wall with the ax about to fall situation. The court felt that in light of the facts, discussed above, that the employee could have reasonably felt that her choice was to resign or be terminated and that is why she emailed the written resignation letter shortly after the phone conversation ended.

4. The court recognized that if this were the typical title VII constructive discharge claim the employee’s claim in this case would not survive. However, the court believed that because the ADA imposes an affirmative duty on employers to provide a reasonable accommodation, the standard for reasonableness has to be more forgiving for an employee bringing in ADA constructive discharge claims than it would be for an employee bringing a title VII constructive discharge claim.

Takeaways: There are several important takeaways from this case. First, a resignation letter does not necessarily end an employer’s duty to accommodate. Second, it doesn’t take much for an employee to activate the interactive process. Third, the duty to engage in the interactive process is an affirmative obligation on the part of the employer. Fourth, it may be easier for a plaintiff to prove constructive discharge with respect to an ADA claim than it would be for that plaintiff to prove constructive discharge under title VII. Finally, if the employee gives the employer an opening to pursue the interactive process, the employer should take advantage of it.

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