Hope everyone had a great Thanksgiving. We aren’t out of the woods yet with Covid-19. So, please be safe.

 

Today’s blog entry comes from the Fourth Circuit, Elledge v. Lowe’s Home Centers, LLC1801846767199,  a published decision decided on November 18, 2020. The case deals with two issues: failure to accommodate; and whether the ADA requires mandatory reassignment. So, the categories for this blog entry are going to be: facts; court’s reasoning failure to accommodate; court’s reasoning mandatory reassignment is not required by the ADA; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Chuck Elledge worked for Lowe’s for over two decades. In 1993, Elledge accepted employment as a health care analyst at Lowe’s Home Center. He earned multiple promotions over the years, ultimately attaining the position of Market Director of Stores (MDS). In this position, Elledge oversaw a dozen stores. He ensured that his stores complied with corporate quality standards and, of course, that they continued to turn a healthy profit. Elledge served as an MDS for almost a decade, and the stores under his supervision performed well. Elledge also had problems with his right knee. In December 2014, he underwent the most serious of four surgeries on his knee. When he returned from leave, once effortless aspects of his job had become trials in “working through the pain.” Walking 4 the floors of the stores he supervised had become trying at times, and driving from store to store could be taxing. Given the demands of his station, these changes in Elledge’s condition were significant. For Elledge and for Lowe’s, the store visits were essential to maintaining high levels of compliance and performance. To keep pace with the needs of his stores, Elledge had typically conducted two separate store visits each day and worked between fifty and sixty hours each week, with the considerable walking and driving that entailed. Upon his return to work, Elledge’s doctor ordered him to restrict his walking to no more than four hours each day and his workday to no more than eight. Lowe’s, in consultation with Elledge, agreed that, for a time, he could and should abide by his doctor’s orders while he continued to work. Lowe’s also offered Elledge the use of a motorized scooter to ease the strain on his knee during store visits. Elledge declined the use of the motorized scooter and, although he did comply with his light-work schedule most of the time, he did not always find himself able to follow his doctor’s orders. Elledge arranged for his lower-ranking colleagues, who had previously only accompanied Elledge on his store visits, to drive him to and from the stores under his supervision, so that Elledge would have an opportunity to stretch out his knee in the back seat. Shortly after renewing these accommodations, Lowe’s learned that Elledge would be issued a permanent disabled parking permit. Contacting Elledge’s doctor, Lowe’s inquired whether Elledge’s restrictions would be permanent. The doctor replied in the affirmative: “I rec these be permanent restrictions.” In response to this development, Lowe’s Regional Human Resources Director Hollie Reinhart and Vice President of Store Operations Delno Dryden had several conversations with Elledge. The purpose of these conversations was to chart a mutually agreeable course forward. Although Elledge would not be able to remain in his present position, Reinhart and Dryden spoke with him about other potential career opportunities at Lowe’s, agreeing to network on his behalf regarding any vacancy in which he had an interest or, in the alternative, to help shift him to a less physically demanding manager level role. Displeased at the prospect of stepping down into a lower paying position, Elledge applied to two other director-level positions, Merchandising Director of Lawn and Garden and Merchandising Director of Outdoor Power Equipment. His applications were considered and rejected under Lowe’s succession planning and best-qualified hiring policies. Ryan Lane, who had been identified through the Lawn and Garden department’s succession planning policy, was selected for the former position. Chad Sanders, who had founded Lowe’s Assistant Store Manager Leadership Development Program and directed Lowe’s Leadership Development Sessions for the National Sales Meetings, was selected for the latter. Elledge, meanwhile, accepted Lowe’s offer of a severance package and early retirement.

 

Elledge then sued for violations of the ADA and ADEA (ADEA we won’t cover). The District Court granted summary judgment for Lowe’s and Elledge appealed.

 

II

Court’s Reasoning Failure to Accommodate

 

  1. A function of the job is essential as long as it bears more than a marginal relationship to the job at issue.
  2. In determining the essential functions of a job, consideration is given to the employer’s judgment. That is, the decision about a job’s essential function belongs in the first instance to the employer and merits considerable deference from the courts.
  3. A court performing the essential functions inquiry must consult the full range of evidence bearing on the employer’s judgment, including the testimony of senior officials and those familiar with the daily requirements of the job.
  4. No reason exists to doubt the District Court’s conclusion that the essential functions of plaintiff’s job included: standing or walking in excess of four hours each day; traveling to all supervised stores; and working in excess of eight hours each day.
  5. The official job description stated that a candidate must be capable walking frequently, defined as 34-66% of working hours, and driving continuously, defined as 67-100% of working hours. These requirements meant that the plaintiff had to push his mobility and stamina on days when his job required him to walk 66% of the time as well on days he had to drive almost without ceasing.
  6. Plaintiff’s own testimony revealed that his job would not possible without significant amount of driving and walking. That testimony was backed up by plaintiff’s supervisor’s testimony.
  7. When it comes to essential functions of the job, what matters is testimony about the day-to-day regimen of the job. Here, the testimony is clear that plaintiff had to work in excess of eight hours each day with respect to the day-to-day regimen of the job.
  8. For a person to be a qualified individual under the ADA, they have to perform the essential functions of the job with or without reasonable accommodations. No serious dispute exists that plaintiff could not perform the essential functions of the job without reasonable accommodations.
  9. Plaintiff turned down accommodations offered by Lowe’s including: not taking advantage of light work accommodation; not complying with his doctor’s orders with total consistency; refusing even to try using a motorized scooter to aid his store walk-throughs; and without receiving formal clearance through the interactive process, crafting his own accommodation by making arrangements with associates who usually accompanied him on store visit for them to drive him back and forth. In short, plaintiff accepted or created certain accommodations, rejected others and pushed himself beyond the limits of his doctor’s orders.
  10. To the extent an employee can be accommodated through a variety of measures, it is the employer exercising sound judgment that possesses the ultimate discretion over how that will be done.
  11. Provided the employer’s choice of accommodation is reasonable, a court may not substitute its own judgment for the employer’s choice.
  12. Plaintiff’s manifest need to disregard his physician as well as him creating accommodations outside the interactive process created the situation that Lowe’s could reasonably assume meant the plaintiff had limited long-term potential.
  13. After plaintiff’s four separate knee surgeries in almost as many years, Lowe’s was also reasonable in concluding that the light duty accommodation was no longer viable. With no tangible signs of improvement, Lowe’s could not have been expected to allow a dramatic reduction in the work requirement indefinitely.
  14. Plaintiff rejected the scooter accommodation. As such, Lowe’s was under no obligation to extend an offer for other accommodations.
  15. Plaintiff’s arrangement to have another employee drive him to his stores is not something that Lowe’s had to recognize as reasonable because an employer need not change a job’s essential functions or split them across multiple employees.

 

III

 

Court’s Reasoning Mandatory Reassignment Is Not Required by the ADA

 

  1. Other Circuits and the interpretive guidance of the EEOC persuasively recognize that reassignment is an accommodation of last resort.
  2. Allowing other reasonable forms of accommodation to take precedence over reassignment protects the employer’s discretion over hiring. That discretion is what makes it possible for the employer to discharge its responsibility to promote workplace stability and workforce changes over time and to reward merit through predictable advancement. It is also fundamental to the employer’s freedom to run a business in an economically viable way.
  3. Reassignment as a last resort also encourages employers to take reasonable measures to accommodate their employees with disabilities in the position they already hold. The employee is saved from being hurled into an unfamiliar position with a different set of demands. Rather, the employee is allowed to maintain and grow the investment he has already made and his present job.
  4. Deemphasizing reassignment helps preserve a fair balance in the relationship between an employee with a disability and his colleagues. Reassignment is unique in its potential to disrupt the settled expectations of other employees.
  5. The ADA does not require an employer to reassign an individual with a disability where that individual would bump another employee from his position or block reasonable longtime workplace expectations.
  6. Holding reassignment in reserve for unusual circumstances adds to the confidence of other employees that the misfortune of a colleague will not unfairly deprive them of opportunities for which they themselves have worked for.
  7. The Supreme Court has never held that mandatory reassignment is required by the ADA.
  8. The decision of the Supreme Court, U.S. Airways v. Barnett1811856868200– holding that the ADA did not require bumping of an employee no longer qualified to do his current job-, did not require employers to construct preferential accommodations maximizing workplace opportunity for employees with disabilities. Instead, it does require that preferential treatment be extended if necessary to provide employees with disability the same opportunities as employees without disabilities.
  9. The Supreme Court in Barnett talked about the value of stability and employee expectations as being the most important reason justifying the precedence of the employer’s seniority-based system over an employee’s with a disability otherwise valid right to reassignment. Such an interest must be jealously guarded as they represent an employee’s personal costly investment in their own careers.
  10. Lowe’s merit-based approach examines an employee’s record of experience and qualifications as well as their performance and interview settings.
  11. Lowe’s hiring process represents continuous effort to identify talent interdepartmentally and provide special training and attention to prime its most competent employees for promotion into the heightened responsibilities of director level positions. The process is on its face disability neutral. The process invites, rewards, and protect the formation of settled expectations regarding hiring decisions. It is also reasonable, orderly, and fundamentally fair for directing employee advancement within the company. So in the ordinary run of cases, reassignment in contravention of such a policy is not reasonable.
  12. The Eighth Circuit has held that a best qualified hiring system falls under the same principle as a seniority-based system and therefore is a perfectly reasonable approach. The 11th Circuit, which we discussed here1821866969201, has held the same.
  13. Lowe’s had several conversations with the plaintiff about alternative career opportunities. They also agreed to network on his behalf regarding any and all positions in which he might express an interest. In short, there are many examples of Lowe’s proactively working to ensure that plaintiff did not despite his disability, receive anything less than the same workplace opportunities as other employees without disabilities.
  14. Lowe’s had valid reasons for hiring other people for the jobs that plaintiff applied for.
  15. Lowe’s also encouraged plaintiff to accept a manager role. While that role would not have paid as much, the responsibilities would have been lighter and the jobs easier to obtain. Such roles could have served as a track for the plaintiff to gain new invaluable experience that would return him to the directorship level in a position more suited to his physical condition. Just because plaintiff declined that offer, does not mean that Lowe’s did not provide him meaningful opportunity to continue his working relationship with the company.

 

IV

 

Thoughts/Takeaways

 

  1. There is clearly a Circuit Court split between the Seventh, which, as we discussed here1831877070202, demands mandatory reassignment, and the Fourth and Eleventh circuits, which say that mandatory reassignment is not called for by the ADA. The 10th Circuit in Lincoln v. BNSF Railway Co.1841887171203, comes closer to the Seventh but allows a very small out for the employer.
  2. What happens next with regards to the United States Supreme Court very much depends upon what side of the aisle you are on. If you are on the plaintiff’s side, the clear preference is to allow each Circuit to play it out. If you lose, do not take it to the Supreme Court. On the other hand, if you are on the defense side, it is certainly in your interest to petition the Supreme Court for a writ of certiorari if you lose at the Circuit Court level. The reason being that there is absolutely no doubt in my mind, very little anyway, that the Supreme Court will take the view of the Fourth Circuit when it comes to mandatory reassignment for two reasons. First, people with disabilities do not fare well at the Supreme Court when it comes to employment situations. Second, the Fourth Circuit in particular, did a very nice job of offering policy reasons why reassignment should be a last resort. Given the configuration of the current Supreme Court, I think the Supreme Court by at least a 6-3 margin, if not more, will be very receptive to those policy reasons detailed in the Fourth Circuit opinion. So while as a practical matter there is a Circuit Court split, the handwriting is clearly on the wall as to what the U.S. Supreme Court will ultimately decide. That means unless you are in the Seventh Circuit and you are representing an employer, you are perfectly justified in setting up a competitive system for people with disabilities when it comes to reassigning them to another job when they no longer can do their current job with or without reasonable accommodations. That said, very helpful if the employer engages in a process, as Lowe’s did, to help the employee with a disability obtain a suitable position rather than leaving it up entirely to the employee’s own devices.
  3. There are real benefits for exploring all possible accommodations as Lowe’s did. Companies that demonstrate a strong effort to accommodate a person with a disability fare very well when it comes to successfully defending failure to accommodate claims.
  4. A few other things about the opinion are interesting. First, the court does not mention the Seventh Circuit opinion1851897272204 requiring mandatory reassignment at all. Second, the court could have also said that the plaintiff was no longer qualified because they turned down perfectly reasonable accommodations. Finally, they could’ve also said that since the plaintiff essentially blew up the interactive process by turning down accommodations and creating their own outside of the interactive process system, the plaintiff loses because he blew up the interactive process.
  5. Employees do not get the right to invent their own accommodations outside of the interactive process.
  6. Employers need to document any and all efforts to engage in the interactive process.
  7. While the employer’s determination of what is an essential function of the job gets preference, it is still the day-to-day happenings on the job that ultimately matter.
  8. Transferring an employee to a lower paying job when they can no longer do their current job with the without reasonable accommodations can be a reasonable accommodation.
  9. Don’t forget about using the Job Accommodation Network1861907373205 to help sort out what accommodations are possible.

 

Be safe!

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