Security Guard Unable to Walk Patrol Seeks Accommodation

​A security guard's claim of failure to accommodate under the Americans with Disabilities Act (ADA) could proceed to trial despite his physical inability to perform walking patrol rounds, a federal district court decided.

The plaintiff was employed by Covenant Security Services as a security officer at the facility of its customer, Kimberly-Clark. The plaintiff testified that his main responsibilities were to operate or man the over-the-road truck desk and the shuttle desk. The plaintiff received favorable employment evaluations from Covenant.

The written job description for the position stated that its physical requirements included an ability to walk several miles per day. One of the key job duties of security officers on the second and third shifts at the Kimberly-Clark plant was to perform patrol rounds. A patrol round refers to an officer's driving and/or walking around and throughout the facility, including around the exterior and parking lots, to identify and report any security and/or safety hazards.

The plaintiff testified that patrol rounds were not performed during the majority of his employment and that, in the early years of his employment, he voluntarily performed patrol rounds, and he was permitted to use his own vehicle or a Kimberly-Clark vehicle while performing rounds of the exterior facility and parking lot.

In 2013, the plaintiff was unable to work more than 32 hours per week due to a disability related to his back, and Covenant adjusted his schedule. In January 2015, the plaintiff informed his site supervisor of his walking limitations due to chronic pain. She suggested that he take breaks.

In February 2015, the plaintiff's supervisor and the site supervisor sent an e-mail to the security guards, including the plaintiff, stating that Covenant was implementing a program that required guards to perform at least one patrol round and up to four patrol rounds per shift.

Based on this communication, the plaintiff sent an e-mail to his site supervisor requesting a reasonable accommodation be made for this job responsibility. He requested some type of mobility device to use to make rounds inside the plant and an exception to allow his personal vehicle beyond the gate to deliver bills of lading during his shift. Covenant temporarily excused the plaintiff from performing a patrol round during his shift by having another security officer handle the walking patrols. That employee later decided that he no longer wished to perform all of the walking patrols.

The plaintiff then requested a reasonable accommodation to complete patrol rounds, including that:

• He would handle the heavier-traffic-volume desk, and his co-worker would handle the lower-traffic-volume desk and the patrol rounds.
• Covenant would provide him with a mobility device.
• The plaintiff's supervisor would perform the patrol rounds on the second shift.
• He would be permitted to use his own vehicle or a Covenant vehicle to do the patrol rounds outside the facility.

The plaintiff claimed that Covenant denied the accommodations, advised him that he could not perform the job under the new requirements and fired him.

The plaintiff filed suit, alleging claims of disability-based discrimination in violation of the ADA and the Kentucky Civil Rights Act. Covenant moved for summary judgment on the claims.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The court found that performing patrol rounds was essential to the security officer position. However, the court found that the plaintiff had presented sufficient evidence that he was still qualified for the job in that he could have performed its essential functions with a reasonable accommodation.

Covenant represented that the use of a mobility device was rejected by Kimberly-Clark for safety reasons. However, it did not provide any evidence to support this or show that, if such were the case, those safety concerns created an undue hardship under the ADA.

The court thus denied Covenant's motion for summary judgment on the plaintiff's failure to accommodate claim and allowed it to proceed to trial.

Todd v. Covenant Security Services Inc., W.D. Ken., No. 4:17CV-00129-JHM (Dec. 12, 2018).

Professional Pointer: Employers may assume that because an employee wants to modify an essential job function, they can safely reject the modification. However, the ADA requires that, even if an accommodation would alter an essential job function, the employer must still explore whether a reasonable accommodation is available and, if it is, whether it would pose an undue hardship.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

[Visit SHRM's resource page on the Americans with Disabilities Act.]