Court Report

Feb 26, 2015

December Cover 


Job Restructuring Must Be an Accommodation Option

Kauffman v. Petersen Health Care VII LLC, 7th Cir., No. 13-3661

When faced with a request for a reasonable accommodation, an employer must be willing to make at least minor reassignments of job duties in order to allow an employee to perform the position’s essential duties, according to the 7th U.S. Circuit Court of Appeals.

For more than 30 years, Debra Kauffman was one of two hairdressers/manicurists at Mason Point, a nursing home in south central Illinois. Her job mostly consisted of doing residents’ hair, both at the beauty parlor and in the residents’ rooms. She also helped with laundry and breakfast delivery. The job duty at the center of this case, though, was pushing the wheelchairs of residents who were able to leave their rooms but could not get to the beauty parlor on their own.

During a hysterectomy in 2010, Kauffman’s bladder was reconstructed and a mesh lining was installed to secure it. While the exact details of Kauffman’s ability to push various objects confused even the court, she was told that pushing occupied wheelchairs could tear the lining loose. When she told Mason Point’s administrator she could no longer perform this task, he told her that “as long as you’ve got the restriction, we can’t employ you.” After the administrator denied Kauffman’s requests to have someone else push the wheelchairs or be transferred to laundry duties full time, Kauffman quit and sued Mason Point under the Americans with Disabilities Act (ADA).

Professional Pointer

Employers need to be open when it comes to the interactive process and to consider whether they can adjust assignments. Minor changes could not only save the company from liability but also help retain good employees.

The district court granted the nursing home’s motion for summary judgment, finding pushing wheelchairs to be an essential function of the job that could not be reasonably accommodated to the employer’s satisfaction. The 7th Circuit took issue with the lower court’s analysis and reversed the decision. Referencing multiple “unresolved factual disputes,” the 7th Circuit stated that uncertainty about how much pushing was involved, whether the task could be easily reallocated to other employees and what the employer’s actual policy was toward employees with disabilities were questions better suited for a trial.

The main dispute involved the percentage of time Kauffman pushed wheelchairs during her shifts. The employer estimated it to be 60 percent to 65 percent of the time, while Kauffman’s estimates were closer to between 6 percent and 12 percent on the days she had to bring residents to the beauty parlor. The 7th Circuit found this dispute needed to be determined by a trial.

Further, it stated that if the task an employee cannot perform is “so small a part that it could be reassigned to other employees at a negligible cost to the employer,” it should not be considered an essential function.

Additionally, the 7th Circuit took issue with the employer’s lack of attempt to accommodate, regardless of whether the disability was permanent or temporary. It stated that allowing an employer to not retain an employee with a permanent restriction would “read ‘reasonable accommodation’ out of the Americans with Disabilities Act.”

The court said, “It’s not true that the fact that a restriction is permanent automatically excuses the employer from making any attempt to accommodate it. Otherwise, an amputee would never have a right to an accommodation.”

Moreover, job restructuring needed to be an option, especially if it was only a “minor adjustment.”

Finally, the 7th Circuit stated that the employer needed to engage in the interactive process and determine if the accommodation would create a hardship. The employer did not satisfactorily do this. The court found that the employer should have asked more questions and been open to the employee’s suggested changes, such as switching to laundry duties full time.

The court also noted that since almost three-quarters of the residents were in wheelchairs, there were probably employees whose main duty was to push wheelchairs. The court concluded, “Beauty parlor visits are only once a week. Should a trial reveal that the only accommodation needed would have been a couple of hours of orderly time a week, [the employer] would have a very hard time proving that such an accommodation would be a ‘hardship’ to the nursing home.”

By Gregory J. Kamer, the founding partner of, and Kaitlin H. Ziegler, an associate with, Kamer Zucker Abbott, the Worklaw® Network member firm in Las Vegas.

Remark Insufficient to Trigger FMLA Rights

Sparks v. Sunshine Mills Inc., 11th Cir., No. 13-14922

An employee who informed his supervisors that he might have surgery following a workplace injury failed to give sufficient notice of his need for leave under the Family and Medical Leave Act (FMLA), according to the 11th U.S. Circuit Court of Appeals.

Sunshine Mills Inc. employed David Mac Sparks as an expander operator in its pet food manufacturing plant in Alabama from 2006 to 2010. Sparks received two write-ups, in September 2009 and April 2010, for poor performance.

While sweeping at work in June 2010, Sparks stepped in a hole and twisted his ankle. He reported the injury and received treatment that included an ankle brace and pain medication. A few days later, his doctor released him to return to work with no restrictions.

Sparks received another performance write-up in late July 2010, after which he returned to his doctor for tests to determine whether he needed ankle surgery. Sparks later told his supervisor that “it was looking like it was very possible [he was] going to have to have surgery.” On Aug. 3, 2010, Sparks received his fourth performance write-up. Sunshine Mills terminated his employment.

Sparks filed a lawsuit in July 2012 alleging that Sunshine Mills violated the FMLA by interfering with his right to take leave and by retaliating against him after he gave notice of his need to take FMLA leave. The trial court dismissed Sparks’ claims, and he appealed.

The 11th Circuit affirmed, holding that Sparks’ comment about the possibility of having surgery was not enough to put the company on notice that he intended to take FMLA leave. An employee’s notice “must be sufficient to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave,” the court said.

By Samantha Smith, an attorney in the Birmingham, Ala., office of Ogletree Deakins.

Hostile Environment for Female Firefighter Upheld

Smith v. City of New Smyrna Beach, 11th Cir., No. 13-13368

A jury properly found that a female firefighter/paramedic was subjected to a hostile work environment and terminated on the basis of her sex, the 11th U.S. Circuit Court of Appeals ruled.

After the jury verdict in Melissa Smith’s favor on her claims of sex discrimination and retaliation under Title VII of the Civil Rights Act of 1964, the city of New Smyrna Beach appealed, claiming that there was no evidence of intentional discrimination or of pretext and that the harassing conduct was not severe.

When Smith began her employment with the city in 2003, only one other woman worked at the fire department, which employed about 45 people. At trial, Smith alleged numerous incidents of disparate treatment and derogatory comments from her supervisors and co-workers throughout her employment. She alleged that one of the battalion chiefs told her he did not believe women should be in the fire service and it was her responsibility to prove otherwise. She alleged that when she married in 2006, the deputy chief asked her multiple times when she would get pregnant so that she could then work as a secretary rather than a firefighter.

Professional Pointer

This decision serves as a reminder to conduct regular sexual harassment training.

The testimony showed that Smith frequently was disciplined for her alleged failure to wash the fire truck, while male firefighters who engaged in similar conduct were not reprimanded. When Smith allegedly complained to the city’s human resources director that the rules were being applied differently to her than they were to male firefighters, she was reassigned to a different fire station.

Smith was eventually terminated allegedly based on her performance at an accident scene, but a male firefighter who was also investigated for his conduct at the scene was not suspended or terminated.

The court, in upholding the jury’s verdict, stated that “the jury was permitted to consider the nearly complete absence of women firefighter/paramedics from a department the size of New Smyrna Beach’s as evidence of the inhospitable working conditions for women at that department.”

By Lara Peppard, an attorney in the Tampa, Fla., office of Ogletree Deakins.

Professional Pointer

A vague remark about a speculative need for FMLA leave is not enough to trigger an employee’s rights under the statute.


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