Arguably Faulty Process Sends ADA Case to Trial

​Evidence of communication breakdowns among an employee, the employee's supervisor, occupational health nurse, and director of disability management were sufficient to create factual disputes that should have been heard by the jury in an Americans with Disabilities Act (ADA) case, according to the 10th U.S. Circuit Court of Appeals.

A long-tenured railroad conductor sued his employer for terminating his employment in violation of the ADA and the Family and Medical Leave Act (FMLA). The trial court granted summary judgment for the employer on the ADA claim but allowed the case to go to trial on the FMLA claim, in which the jury ruled for the employer. Deciding that the employee presented sufficient evidence for a jury to find that the employer failed to engage in the ADA-mandated interactive process, the appeals court reversed summary judgment on that claim but affirmed the jury's verdict on the FMLA claim.

The railroad scheduled conductors using an on-call system. The company provided required rest periods, plus paid vacation and personal leave. It also allowed "reasonable" unpaid personal "layoffs" (situations when an on-call conductor is scheduled as unavailable to work but is then called in for duty) and gave "significant consideration" to employees dealing with illness. The attendance policy measured attendance based on availability and distinguished between absences for compensated days and uncompensated layoff days. The policy provided for two written notices of violation. A violation within three years after the second written notice would lead to dismissal.

The conductor, who had AIDS, required ongoing treatment but considered his condition stable and his symptoms manageable. Up to a point, he used FMLA leave for his absences, but temporarily lost FMLA eligibility because of an unpaid suspension. 

While seeking to re-establish FMLA eligibility, the conductor repeatedly sought to use paid leave to cover medical absences. The employer denied his requests, forcing the conductor to use unpaid layoff status and marking his status as "sick." The employee then requested disability accommodations by:

• Asking the occupational health nurse for advice.
• Pursuing the nurse's referral to the director of disability management.
• Asking for, but not receiving, clarification of the meaning of full-time employment.
• Completing accommodation paperwork and redoing it after being told to include a specific request for the amount of time off needed—in this case, five days off per month.

The conductor testified that he asked for a meeting with his supervisor and someone from the disability management office, but that never occurred. Over the next several months, supervisors charged him with three attendance violations. Shortly before the third, the employer approved the conductor's FMLA leave request. Nevertheless, he was terminated one month later under the attendance policy.

The trial court dismissed the ADA claim because the conductor had not specified a duration for his accommodation and, therefore, failed to show that the railroad could reasonably accommodate his disability. That being the case, the railroad had no duty to engage in the interactive process.

The conductor's FMLA interference claim went to trial. While deliberating, the jury submitted written questions and requested supplemental instructions. The court denied both requests, and the jury decided in the employer's favor. The court also denied the employee's motion for a new trial.

The appeal turned on the issue of whether the employee had requested a plausibly reasonable accommodation—one that presently, or in the near future, would enable the employee to perform essential job functions.

When an employee notifies the employer of a disability and asks for accommodation, the employee and the employer must engage in good-faith communication—the so-called interactive process. The conductor argued that communication broke down when the railroad refused to clarify its definition of full-time employment and obstructed the process by telling him that it had approved his accommodation. He testified that when he told his supervisor that the railroad had approved his request, the supervisor shrugged, walked away and did not make himself available to discuss the conductor's medical treatments.

Accordingly, the 10th Circuit said a reasonable jury could find that the employer failed to engage in the interactive process. Specifically, a jury could conclude that the railroad made no effort to discover exactly what the conductor's limitations were or to explore any possible accommodations.

As to whether a reasonable accommodation existed, the employee:

• Presented evidence that he requested up to five days off per month for a specific period of time—until he could obtain FMLA leave.
• Asserted that the employer could have accommodated him by allowing him to use earned paid leave to cover absences until he qualified for FMLA leave.
• Argued that had the railroad engaged in the interactive process, it could have reassigned him to a regular-schedule position.

Thus, the conductor established three plausibly reasonable accommodations that a jury could find would have permitted him to perform the essential functions of his job. The trial court, therefore, erred in granting the railroad summary judgment on the ADA claim.

With regard to the FMLA claim, the 10th Circuit held that having referred the jury back to the instructions as a whole—which accurately depicted the relevant law—the trial court had not abused its discretion in refusing to supplement the jury instructions, nor in denying the employee's motion for a new trial.

Dansie v. Union Pacific Railroad Co., 10th Cir., No. 20-4054 (Aug. 2, 2022), petition for rehearing and rehearing en banc denied (Aug. 30, 2022).

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.