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.

Postscript: It turns out that after the decision discussed in this blog entry, it was discovered that the plaintiff had filed an SSDI application containing all kinds of indicators that he could not possibly do the job with or without reasonable accommodations. Based upon that, the court winds up granting summary judgment to the defense based upon the newly acquired evidence here.