Employee with Tourette Syndrome Loses ADA Claim

Takeaway: The Americans with Disabilities Act (ADA), which generally requires employers to reasonably accommodate qualified individuals with disabilities, did not prevent the reassignment of an employee with Tourette syndrome.

The 6th U.S. Circuit Court of Appeals upheld summary judgment on Americans with Disabilities Act (ADA) claims brought by a former employee who had Tourette syndrome.

Coca-Cola Consolidated Inc., hired the plaintiff in 2016 to deliver its products to its customers. Prior to Coca-Cola hiring the plaintiff, he had been diagnosed with Tourette syndrome. Tourette syndrome causes unwanted, involuntary muscle movements and sounds known as tics. The plaintiff’s Tourette syndrome included a rare symptom known as coprolalia, which caused him to utter obscene and inappropriate vocalizations, including profanity such as a misogynistic word and a racial slur. Coca-Cola knew about the plaintiff’s tics when he was hired, but not their full extent.

Coca-Cola claimed that the plaintiff made a whooping sound with some head movements when it first hired him and that his condition progressed over time. The plaintiff denied that his condition worsened, but he acknowledged that anxiety, stress and anger increased his tics.

As a delivery merchandiser, the plaintiff delivered Coca-Cola products to locations throughout northeast Tennessee, including retailers such as Dollar General. According to his job description, he was responsible for delivering, merchandising and maintaining standards at customer locations. This included filling shelves and coolers, stocking displays, rotating products, removing out-of-date and damaged products, and fostering relationships with account staff. The job required excellent customer service skills.

Coca-Cola said it became aware of complaints about the plaintiff using offensive language while servicing customer stores beginning in 2016. For example, in September 2017, a Dollar General manager filed a formal complaint claiming that, while delivering products, he frequently used a racial slur inside the store in front of customers and a Black cashier. This required the manager to apologize for the incident and remove him from view.

The plaintiff met with a Coca-Cola director and an HR official to discuss the perceived progression of his verbal tics, and they claimed he used racial slurs and profanity during the meeting. Thereafter, the plaintiff submitted a Family and Medical Leave Act request, which Coca-Cola approved. While on leave, he adjusted his medications, sought a new neurologist, obtained counseling and received acupuncture therapy, which seemed to improve his symptoms.

In February 2018, Coca-Cola learned of another incident involving the plaintiff’s use of offensive language at a different Dollar General store. A co-worker assisted the plaintiff that day, and the manager on duty did not want to work with the plaintiff because of his use of racial slurs. The co-worker explained the plaintiff’s condition to the manager, but the manager was still offended. Coca-Cola adjusted the plaintiff’s route so that he would not service Dollar General stores alone.

In May 2018, the plaintiff took another period of leave and submitted a short-term disability claim. The plaintiff requested an accommodation to allow him to return to work alongside another delivery driver. In August 2018, the plaintiff’s physician released him to work with the restriction that he must be accompanied by another driver.

In October 2019, a store manager made a complaint about the plaintiff that was unrelated to his condition. Coca-Cola found that his tics had increased, including frequent repetition of a racial slur. In early December 2019, Coca-Cola required him to choose between taking another leave of absence or transferring to an overnight warehouse position with no customer interaction. The plaintiff requested alternate delivery routes, but Coca-Cola claimed that they were not available or still required customer interaction. The plaintiff worked in the warehouse until April 2020, when he resigned to take another delivery job. He performed delivery jobs for other companies without complaint.

The plaintiff brought an ADA lawsuit against Coca-Cola, alleging failure to accommodate, constructive discharge, failure to engage in the interactive process and retaliation. Coca-Cola moved for summary judgment, which was granted, and the plaintiff appealed.

The 6th Circuit considered whether the plaintiff was a qualified individual with a disability absent an accommodation. It found that he could not perform the essential function of providing excellent customer service without accommodation. The court noted that complaints were raised about his racist and profane words and that his doctor restricted him to only working with another driver. The court further found that his requested accommodations were either not available or not reasonable and that Coca-Cola reasonably accommodated him during his employment. Thus, the plaintiff could not show that he was constructively discharged.

The court upheld the dismissal of his claims at summary judgment.

Cooper v. Dolgencorp, LLC, 6th Cir., No. 23-5397 (Feb. 15, 2024).

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.