Failure-to-Accommodate Claim Defeated

By Katelynn Gray March 16, 2022

Takeaway: The 8th Circuit's decision emphasizes that an employer does not need to initiate the interactive process in response to a job-change request, unless the employee makes clear there is a physical or mental need connected to the request. While the 8th Circuit held the requisite nexus was not established by the plaintiff, it is important to note that, under the totality of circumstances, another court could have reached a different conclusion, particularly under some state and local laws. Check with counsel if in doubt whether there is a duty to accommodate. 

There was no failure to accommodate when an employee did not state that a requested change was connected to her medical condition, the 8th U.S. Circuit Court of Appeals decided.

The plaintiff, a Nebraska resident, was hired in July 2015 as a driver for a transportation company. During the first 34 months of her employment, she requested and was granted six accommodations for various medical and familial reasons.

On May 27, 2018, the plaintiff was promoted to a part-time dispatcher, referred to as a "starter." A starter's job was to coordinate and document trips requested by the company.

In August 2018, the plaintiff visited her doctor and said she was experiencing headaches, which she claimed were aggravated by her work environment, and received a doctor's note that she needed dayshift work and could not work shifts more than nine hours. The plaintiff presented the note to her supervisors, who forwarded it to HR.

When asked how long the plaintiff required the accommodation, the plaintiff's doctor noted she needed it for seven days. The other starters changed their schedules to accommodate the plaintiff's requests. Notably, none of the plaintiff's medical documentation mentioned headaches.

Later that month, the plaintiff provided another note requesting that the accommodation be extended for two months, citing a "home situation." The company again accommodated her request. The plaintiff also asked her supervisors to return her to a driver position, advising one of the supervisors that the noise volume in the new office was interfering with her ability to perform her duties, while advising the other supervisor that "she did not like dealing with the drivers, did not like the light in the office, and the noise gave her headaches."

In response, the company informed the plaintiff it had an established rule that once an employee is promoted to a starter, they cannot return to a driver.

In September 2018, the plaintiff produced a new doctor's note that said she could work 12.5 hours per day with at least 11 hours in between. The note, again sent to HR, did not cite any basis for the restrictions.

On Sept. 27, 2018, the plaintiff reported to work and found that a board used to track driver and vehicle information had been moved to a location that made it difficult for her to write on it. The next day the plaintiff sent an e-mail to her supervisors that she was unable to work as a starter, citing her issues with the noise in the office and board placement. The plaintiff also re-emphasized her desire to return to a driver position, but never cited headaches or any other medical condition as a basis for her request. The company treated the plaintiff's e-mail as her resignation.

The plaintiff sued the company, alleging it failed to accommodate her disabilities and retaliated against her in violation of the Americans with Disabilities Act (ADA) and the Nebraska Fair Employment Practices Act. The company's motion for summary judgment was granted in its entirety. The plaintiff appealed the dismissal of her failure-to-accommodate claim, specifically the company's refusal to return her to a driver position.

The court affirmed the lower court's ruling, finding the plaintiff had not actually sought a reasonable accommodation for her alleged disability. Under the ADA, the initial burden to request an accommodation is on the employee. While the request does not need to be in writing and there are no necessary "magic words," the plaintiff must make clear she wants assistance for her disability.

In this instance, the plaintiff failed to provide evidence that she asked to return to a driver position as an accommodation for any corresponding disability. The court held that the plaintiff's complaints about noise in the office giving her headaches were insufficient.

Powley v. Rail Crew Xpress, LLC, 8th Cir., No. 21-1131 (Feb. 15, 2022).

Katelynn Gray is an attorney with Duane Morris LLP in New York City.



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