Employee Who Sought to Tape-Record Meetings Loses ADA Claim

​An employer demonstrated a good-faith effort to accommodate an employee by engaging in a "back-and-forth" process with the employee, the 10th U.S. Circuit Court of Appeals found in a case involving the denial of the worker's request to tape-record meetings. The employer, United Parcel Service (UPS), said it offered alternatives, such as notetaking, but the employee said it didn't. The lower court's grant of summary judgment for the employer was upheld.

The plaintiff worked at UPS as a division manager. Her position gave her access to certain proprietary and confidential information regarding the company.

At one point in her employment, she found it difficult "to recall the daily conversations the company expected her to memorize," the court said. She met with her supervisor and a human resources manager to discuss her performance and UPS' intention to place her on a "manager-performance-improvement plan." The plaintiff had an anxiety attack following the meeting and later requested medical leave and an accommodation.

The plaintiff e-mailed human resources, requesting an agenda for all meetings she needed to attend as a division manager and permission to tape-record them. A few days later, she went on leave and did not return to work.

In June 2018, the plaintiff met with an HR manager and two other managers to discuss an accommodation checklist. After the meeting, the HR manager forwarded the checklist information to the UPS Region Accommodation Committee.

The committee met and decided that the plaintiff's request to tape-record meetings was "unreasonable" because she had access to confidential and proprietary information. The committee came up with alternatives, including providing meeting agendas for certain meetings and finding a notetaker or allowing the plaintiff to take notes herself during certain meetings.

After this meeting, the HR manager contacted the plaintiff multiple times to inform her of the committee's findings and help her get back to work. The HR manager also asked the plaintiff to provide additional information about her requested accommodation.

In late July 2018, the plaintiff told UPS that she wanted to retire, and she did so on April 1, 2019.

She filed suit under the Americans with Disabilities Act (ADA) and the Kansas Act Against Discrimination. UPS prevailed in U.S. District Court for the District of Kansas. The plaintiff appealed, challenging three aspects of the district court's ruling, alleging: 1) UPS failed to engage in the accommodation process in good faith, 2) the district court improperly excluded expert testimony and 3) the district court wrongly resolved reasonable inferences in UPS' favor.

The plaintiff argued that UPS acted in bad faith during the accommodation process "by concealing the possibility of a notetaker" as an accommodation. She said that when she spoke with the HR manager on the phone early in the process, he failed to tell her that notetaking during certain meetings was a possibility, which she alleged amounted to a lie and indicated bad faith by the defendant during the interactive process.

The court was not persuaded and wrote that "when an employee comes to an employer seeking an accommodation for a disability, we have long required both parties to engage in what we call the interactive process—a back-and-forth discussion to help identify the employee's precise limitations and attempt to find a reasonable accommodation for those limitations."

The court also said that UPS engaged in an extensive back-and-forth in an effort to accommodate. "Yet plaintiff still sued," the court continued, "alleging defendant failed to immediately tell her that it approved a possible accommodation and formally offer it to her. But the law imposes no burden on employers to immediately tell employees of approved possible accommodations or to formally offer them those accommodations, rather than informally asking if they would satisfy an employee."

The plaintiff contended that the district court repeatedly granted unreasonable inferences in UPS' favor and refused to grant her reasonable inferences. The appellate court disagreed, stating, "Put simply, the district court granted plaintiff concessions where it could, but the undisputed facts clearly contradict plaintiff's version of the interactive process."

Norwood v. United Parcel Service Inc., 10th Cir., No. 21-3145 (Jan. 17, 2023), petition for rehearing and for rehearing en banc denied (Feb. 10, 2023).

D.M. Fera is a freelance writer in the Washington, D.C., area.