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 The case of the day is Camp v. Bi-Lo, LLC, an unpublished decision from the Sixth Circuit on October 21, 2016.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.
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.
Court’s Reasoning with Respect to Whether Lifting 35 Pounds Is an Essential Function of the Job?
- 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.
- 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.
- Whether a function of the job is essential is a question of fact not typically suitable for resolution on summary judgment.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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?
- Plaintiff was generally meeting all job expectations.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Informal accommodations are something that should be encouraged.
- 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.
- 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.
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.