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ADA claim fails over failure to negotiate

Kohl’s Department Stores not liable, 1st Circuit says

Kohls_(3298096729)A department store could not be held liable for failing to accommodate a diabetic sales associate’s request to work only a midday shift, the 1st U.S. Circuit Court of Appeals has ruled in a split decision.

The defendant employer argued that it complied with its duty under the Americans with Disabilities Act to engage in an interactive process regarding reasonable accommodations, but that that the employee refused to take part in that process.

A 2-1 majority of the 1st Circuit agreed.

“The refusal to give [the employee]’s specific requested accommodation does not necessarily amount to bad faith, so long as the employer makes an earnest attempt to discuss other potential reasonable accommodations,” Judge Juan R. Torruella wrote for the majority. “[W]e conclude that [the employee]’s refusal to participate in further discussions with [the employer] was not a good-faith effort to participate in an interactive process.”

Judge William J. Kayatta Jr. dissented.

“As best as I can tell, this is the first time that any circuit court has held that an employer can reject an accommodation request backed up by a doctor’s note, refuse to offer an accommodation that it has determined it can make, falsely claim that any accommodation must be offered to all workers whether disabled or not, and then declare the employee’s ADA rights forfeited when she gives up,” he said. “Such a holding demands too much resilience and persistence on the part of a disabled and stressed-out employee, and takes away from jurors a task they are well-suited to perform.”

The 30-page decision is Equal Employment Opportunity Commission v. Kohl’s Department Stores, Inc.

Donna J. Brusoski of Virginia argued on behalf of the EEOC. Maine attorney Melinda J. Caterine represented the employer.

Shift request

Pamela Manning, who suffers from Type I diabetes, was employed as a full-time associate for defendant-appellee Kohl’s Department Stores. She worked predictable shifts, which usually started no earlier than 9 a.m. and ended no later than 7 p.m.

In January 2010, Kohl’s restructured its staffing system nationwide. As a result, Manning’s scheduled hours became unpredictable. She worked more “swing shifts” — a night shift followed by an early shift the next day.

In March of that year, Manning informed her immediate supervisor, Michelle Barnes, that working erratic shifts was aggravating her diabetes and endangering her health.

Store manager Tricia Carr and Barnes arranged to meet with Manning on March 31 to discuss her concerns. During the meeting, Manning requested “a steady schedule, [but] not specifically 9:00 to 5:00.” As she described it, “I was asking for a midday shift, what I had before, the hours that I had before [the departmental restructuring].” Manning also expressed a willingness to work on weekends.

Carr responded that she had spoken to “higher-ups” at the corporate management level, and that she could not provide a consistently steady 9-to-5 schedule. Manning became upset, told Carr that she had no choice but to quit because she would go into ketoacidosis or a coma if she continued working unpredictable hours, put her store keys on the table, walked out of Carr’s office and slammed the door.

Concerned, Carr followed Manning into the break room, asking what she could do to help. During that conversation, Carr attempted to calm Manning down and requested that she reconsider her resignation and discuss other potential accommodations. Manning responded, “Well, you just told me Corporate wouldn’t do anything for me.”

Manning did not discuss any alternative accommodations with Carr, but instead cleaned out her locker and left the building. A few days later, on April 2, Manning contacted the Equal Employment Opportunity Commission seeking to file a discrimination claim.

On April 9, Carr called Manning to request that she rethink her resignation and consider alternative accommodations for both part-time and full-time work. Manning asked Carr about her schedule. Carr informed her that she would need to consult with the corporate office about any accommodations.

After that phone call, Manning had no further contact with anyone at Kohl’s. Because it had not heard from Manning, Kohl’s treated her departure as voluntary and terminated her employment later that month.

The EEOC brought suit on Manning’s behalf. A U.S. District Court judge ruled in favor of the employer, concluding on the ADA claim that Manning had failed to engage in an interactive process in good faith, and on the constructive discharge claim that a reasonable person in Manning’s position would not have felt compelled to resign.

Interactive process

The interactive process — an informal dialogue between the employee and the employer in which the two parties discuss the issues affecting the employee and potential reasonable accommodations that might address those issues — “requires bilateral cooperation and communication,” Torruella said. “We must emphasize that it is imperative that both the employer and the employee have a duty to engage in good faith, and that empty gestures on the part of the employer will not satisfy the good faith standard.”

While acknowledging that the employer’s response to Manning’s accommodation request “may well have been ham-handed,” the majority found that the employer’s subsequent overtures could not be construed as empty gestures.

“Here, Kohl’s refused to provide Manning’s preferred schedule, but was willing to discuss other schedules that would balance Manning’s needs with those of the store,” Torruella wrote. “Manning refused to hear what Kohl’s had to offer.”

The employer “acted in good faith when it initiated an interactive process and displayed its willingness to cooperate with Manning, not once but twice, to no effect,” Torruella said, adding that the employee’s refusal to participate in further discussions was not a good-faith effort to participate in an interactive process. “Indeed, because Manning chose not to follow up with Carr’s offer to discuss alternative accommodations, Manning was primarily responsible for the breakdown in the interactive process.”

No constructive discharge

The EEOC argued that the employee’s fears that she would go into ketoacidosis or slip into a coma were objectively reasonable because her doctor told her that continuing to work erratic shifts could cause the serious medical complications.

“Even assuming, arguendo, that being concerned about these health issues is objectively reasonable, we still find that Manning’s choice to resign was ‘grossly premature, as it was based entirely on [her] own worst-case-scenario assumption’ that Kohl’s would not provide her with accommodations,” the majority responded.

An employee “is obliged not to assume the worst, and not to jump to conclusions too [quickly],” Torruella said. “Here, Manning not only jumped to a conclusion prematurely, but she also actively disregarded two opportunities to resolve her issues.”

Finding that a reasonable person would not have concluded that departing from her job was her only available choice, the 1st Circuit decided that the EEOC failed to meet the “reasonable person” element for a constructive discharge claim.

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