One of the hot areas in title I of the ADA is the question of whether an employer has a mandatory duty of reassignment to a vacant position where the employee is no longer qualified per the ADA for that position. The circuits are split on that, so it is just a matter of time before the United States Supreme Court deals with the issue. The blog entry of the day is EEOC v. Methodist Hospitals of Dallas, a published decision from the Fifth Circuit decided on March 17, 2023, here. As usual, the blog entry is divided into categories and they are: Facts; Barnett framework; interactive process breakdown; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the sections.

 

I

Facts

 

Methodist is a regional network of hospitals with over 7,500 full-time employees. In 2012, Methodist had no detailed policy concerning the ADA, nor did Methodist provide ADA training to its employees. Accordingly, there was no formalized process for assisting disabled employees. If injured employees could not return to work, they could request short-term disability benefits and leave under the Family Medical Leave Act (FMLA), administered by third parties Lincoln Financial Group and the Reed Group, respectively. If an employee’s disability required permanent reassignment, the employee was to compete for job openings pursuant to Methodist’s policy to hire “the most qualified applicant available” for every vacancy.

For vacant positions, Methodist’s human resources department (HR) reviewed all applications, eliminated those that did not meet the requisite qualifications, and forwarded the remaining applications to the hiring manager. The hiring manager made the final selection, but generally did not input any notes regarding the applicants, simply writing the word “[o]ffer” beside the name of the candidate he or she found most qualified.

In 2008, Methodist hired the plaintiff as a patient care technician. I March 7, 2012, plaintiff injured her back on the job while turning a patient. From there, everything went downhill. She applied for FMLA leave and repeatedly asked her supervisor for accommodations or assistance with the more strenuous task required. Her supervisor set up a call between plaintiff and an HR employee who offered to guide the plaintiff in seeking other work. That led to a conversation with the HR director and plaintiff’s supervisor whereby the HR director informed plaintiff’s supervisor the plaintiff should just resign.

She then began applying for other jobs that were vacant but was not selected. Eventually, the employer gave the plaintiff to opportunities to apply for personal leave but plaintiff never responded to those letters. When she was terminated, plaintiff filed with the EEOC and the EEOC brought suit.

I

Barnett Framework

  1. In U.S. Airways v. Barnett, here, the Supreme Court dealt with the question of the reasonable accommodation of reassigning a person to a vacant position when faced with a seniority system. In analyzing that question, the approach the Supreme Court took was to first evaluate whether the plaintiff could show that an accommodation was reasonable on its face, i.e. ordinarily or in the run of cases. Second, if the plaintiff could show that requested accommodation is reasonable in the run of cases, then the defendant has to show that special circumstances demonstrating undue hardship in the particular circumstances exist so as to justify not going through with the reassignment. Third, if the plaintiff cannot demonstrate the requested accommodation is reasonable in the run of cases, the plaintiff remains free to show that special circumstances warrant a finding that the requested accommodation is reasonable on the particular facts even though the ADA does not trump the reassignment request in the run of cases.
  2. In Barnett, the Supreme Court held at step one that it would not be reasonable in the run of cases for the reassignment in question to overrule the rules of a seniority system. However, at step two, the Supreme Court remanded for a determination as to whether the employee could show special circumstances so as to justify an exception to the employer’s seniority policy.
  3. The court agrees that mandatory reassignment in violation of the defendant’s most qualified applicant policy is not reasonable in the run of cases because it would compromise the hospital’s interest in providing excellent and affordable care to patients. It would also be unfair to the hospital’s other employees.
  4. The majority of circuits dealing with the issue of mandatory reassignment and an employer’s policy of hiring the most qualified applicant have decided that the most qualified applicant policy prevails. Those circuits include the Eighth Circuit (but see thoughts/takeaways section), 11th Circuit, and the Fourth Circuit. The 10th Circuit and the Seventh Circuit have come down in favor of mandating reassignment to a vacant position for which the person with a disability is qualified for.
  5. The majority of circuits use various reasons to support their position, including: 1) the ADA is not an affirmative action statute; 2) the ADA does not require reassignment without competition for, or preferential treatment of, persons with disabilities and does not require affirmative action; 3) the ADA only requires that an employer allow a person with a disability to compete equally with the rest of the world for a vacant position; 4) in the case of hospitals, the well-being and even the lives of patients can depend on having the best-qualified personnel; 6) undermining a hospital’s best qualified hiring or transfer policy imposes substantial costs on the hospital and potentially on patients; 7) preferential treatment for persons with disabilities under the ADA must be extended only as necessary to provide employees with disabilities with the same opportunities at their nondisabled colleagues; and 8) preferential reassignment improperly sets up the ADA as a sword that upends entirely reasonable, disability-neutral hiring policies and the equally reasonable expectations of other workers.
  6. Defendant’s disability-neutral policy stabilizes employee expectations by inviting, rewarding, and protecting the formation of settled expectations regarding hiring decisions. Such discretion is fundamental to the employer’s freedom to run a business in an economically viable way. Finally, a most qualified applicant policy in a nonprofit, acute care hospital promotes the prevention of infection, illness, and medical error. It also advances the safety of hospital employees and the health of the patients and communities they serve.
  7. The 10th Circuit view of viewing a most qualified applicant policy as something significantly different from a seniority system as something being necessary because it otherwise reads the reassignment to a vacant position out of the ADA’s definition of reasonable accommodation, just doesn’t wash. The reason it doesn’t fly is that step two of the Barnett analysis still permits a plaintiff to prevail even if they do not get past step 1.
  8. The District Court erred by not addressing the second step of Barnett. That is, the District Court on remand must focus on whether the EEOC can raise a genuine dispute of material fact as to whether there are special circumstances warranting an exception to the most qualified hiring policy.

III

Interactive Process Breakdown

  1. Once an employee presents a request for an accommodation, the employer must engage in the interactive process to determine what reasonable accommodations are available. That process must identify the precise limitations resulting from the disability and the potential reasonable accommodations that can overcome those limitations. Both parties have to exchange information to craft a reasonable accommodation. Finally, where the employee causes the breakdown in the interactive process, the employer has not violated the ADA.
  2. While the defendant was required to engage in the interactive process and did so, the plaintiff caused a subsequent breakdown in the interactive process by failing to respond to the defendant’s letters offering her additional leave.
  3. Lots of evidence exists that the hospital engaged in the interactive process over a six-month period and only terminated the plaintiff following her failure to respond to two letters, two months apart, regarding the hospital’s offer of additional unpaid leave.
  4. While it is true that the hospital was not always immediately responsive to plaintiff’s inquiries during her FMLA leave, none of those actions terminated the interactive process.
  5. An employer ends the interactive process when it creates an objectively reasonable perception that the process is clearly at an end. While it is true that the hospital should not have told the plaintiff to resign, that statement was made prior to the hospital’s offer of additional personal leave and there was no indication that the statement was a final and unreviewable decision regarding plaintiff’s disability. In fact, plaintiff continued to send medical reports and apply for vacant positions after the conversation occurred.
  6. The court does not need to determine if the hospital’s offer of unpaid leave was itself a reasonable accommodation because the plaintiff withdrew from the process before the ultimate accommodation could be offered by the hospital.

IV

Thoughts/Takeaways

  1. The case settled on August 30, 2023.
  2. The Eighth Circuit may be split within itself. Compare Cravens v. Blue Cross and Blue Shield, 214 F.3d 1011 (8th Cir. 2000) with Huber v. Wal-Mart Stores, 486 F.3d 480 (8th Cir. 2007). The various circuits vary on what to do in this kind of eventuality. It seems that both cases are still good law as Huber cites to Cravens favorably. Also, Cravens requires employers to affirmatively respond to plaintiff’s request for assistance to help find other jobs in the company.
  3. I don’t agree with the Fifth Circuit that the Seventh Circuit view on mandatory reassignment is dicta. The statement of the Seventh Circuit referred to by the Fifth Circuit seems to me very much a part of the Seventh Circuit’s decision.
  4. I have no idea what “the run of cases,” actually means, though I see it all the time in the case law.
  5. It is hard to believe that the current configuration of the Supreme Court would say that the ADA would trump a most qualified policy. Even so, I would expect this issue to reach the Supreme Court eventually.
  6. Magic words are not required to begin the interactive process.
  7. When the interactive process ends is governed by an objective standard.
  8. It is absolutely mind-boggling to me that the hospital in this case had: 1) no formalized process for assisting employees with disabilities; 2) no detailed policy concerning the ADA; and 3) no ADA training provided to its employees.
  9. Accommodations compensate for limitations but they rarely overcome them.
  10. I have seen case law recently saying that an ADA violation occurs where an employer forces a person onto a leave rather than reasonably accommodates the person with the disability when that person with a disability desires to be reasonably accommodated per the ADA.