Former Employee Must Prove Failure to Accommodate at Trial


By John T. Ellis July 11, 2018

​A former employee who sued for failure to accommodate a disability bore the burden of proof at trial even if his employer could not prove a reasonable accommodation was unavailable at summary judgment, according to the 9th U.S. Circuit Court of Appeals.

The worker began his employment at Burlington Northern Santa Fe Railway (BNSF) in 1971. He was diagnosed with sleep apnea in 1994 and had two unsuccessful surgeries to correct the condition. In 1999, he was found to be totally disabled. He began a leave of absence and started receiving long-term-disability benefits through Cigna, the third-party administrator for BNSF's disability plan. At that time, BNSF told him that if Cigna ever found him ineligible, he should contact BNSF to plan his return to work.

In 2005, the employee refused to pay for a sleep study requested by Cigna to obtain evidence of a continuing disability and his benefits were subsequently ended. He did not apply to return to work and appealed Cigna's ruling. In late 2007, after his appeal was denied, he contacted BNSF to demand reinstatement of his disability benefits. He did not ask to return to work.

On Jan. 2, 2008, BNSF sent the employee a letter, giving him 60 days to find a position with BNSF or his employment would end. The employee responded with a letter accusing BNSF of ignoring his demand to reinstate his disability benefits. He indicated that he was willing to return to work but also enclosed a note from his physician stating that it was not safe for him to do so. BNSF quickly sent a reply letter on Jan. 10 reiterating that he had 60 days to find a position and instructing him how to do so.

On Feb. 28, the employee applied for a yardmaster position, despite being informed by his union that he did not have sufficient seniority to displace the individual who currently held the job. He also simultaneously applied for an immediate 90-day medical leave of absence to begin on the date he was awarded the yardmaster position.

His application was accompanied by a physician's note indicating that he could consider light-duty work after further treatment and identifying other limitations, including a restriction on working with heavy equipment. BNSF rejected the application because the employee lacked sufficient seniority to bump the incumbent. After the 60-day window expired, BNSF terminated his employment.

At no time during the 60-day window did the employee visit the list of open positions on BNSF's website or contact a human resources representative, as instructed by BNSF in its Jan. 10 letter.

The former employee sued BNSF and his union in 2010 for failure to accommodate his disability under the Americans with Disabilities Act. The trial court granted summary judgment to BNSF, and the former employee appealed.

On appeal, the 9th Circuit overturned the trial court, holding that BNSF had failed to prove that a reasonable accommodation was unavailable. The case went back to the trial court, and a jury found in favor of BNSF. The former employee again appealed, arguing that the trial court used improper jury instructions and improperly gave the burden of proof to him instead of BNSF.

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

On the second appeal, the 9th Circuit ruled in BNSF's favor on both counts. The circuit court held that the burden of proof at trial was different from the burden of proof at the earlier summary-judgment stage. On a failure-to-accommodate claim, the employer needs to prove that no reasonable accommodation exists in order to receive summary judgment and thus avoid a trial. However, at trial, the employee must prove that the employer had a reasonable accommodation available or could have made one available. The 9th Circuit also held that the trial court's jury instructions were proper.

Snapp v. United Transp. Union, 9th Cir., No. 15-35410 (May 11, 2018).

Professional Pointer: This case is a valuable reminder that an employer may have a different burden at a pretrial stage when litigating an employment claim. An employer should engage in an interactive dialogue with an employee who requests an accommodation and should clearly address the availability of an accommodation in writing.

John T. Ellis is an attorney with Ufberg & Associates, LLP, the Worklaw® Network member firm in Scranton, Pa.


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