Reassignment Deemed a Last-Resort Accommodation

The 4th U.S. Circuit Court of Appeals upheld the dismissal of Americans with Disabilities Act (ADA) claims of a Lowe's market director who could not find a position within his limitations after becoming permanently disabled. In reaching this decision, the appeals court held that reassignment is an accommodation of last resort.

The plaintiff began working at Lowe's Home Centers LLC in 1993. From 1994 to 2008, the plaintiff climbed the corporate ranks and was eventually promoted to the position of market director of stores (MDS) in 2008. An MDS ultimately is responsible for overall store performance within his or her market, with a primary focus on sales and profitability. An MDS must frequently visit and walk through stores in his or her market to evaluate the merchandise and appearance and advise the staff on how to enhance the store sales and profits.

The plaintiff's job required a lot of walking and long hours. He spent multiple hours on the floor surveying performance and usually visited two stores in one day. He would spend eight to 10 hours per day in the stores and one to two hours per day driving between stores, averaging 50 to 60 hours a week.

In December 2014, the plaintiff had knee replacement surgery on his right knee after three prior knee surgeries. Upon his return to work, the plaintiff's doctor recommended that he be restricted to eight-hour days with no more than four hours of standing and walking per day. Lowe's agreed to these temporary limitations and offered him the use of a motorized scooter in performing job duties, which the plaintiff declined to use.

These accommodations were approved for 60 days; in June 2015, they were extended for six more months. In July 2015, the plaintiff's doctor recertified his restrictions and issued the plaintiff a permanent "disabled parking" permit form. Surprised by the form, a Lowe's accommodations team member contacted the plaintiff's doctor to ask if the restrictions were now permanent. The doctor said they were.

Lowe's determined that it could not permanently accommodate these changes to the core duties of the MDS position and gave the plaintiff time to find another job with the company that fit his restrictions. The plaintiff could look for positions of interest, and Lowe's would coordinate with the accommodations team and hiring managers and network internally to locate opportunities.

The plaintiff found an MDS position in the lawn and garden department. However, because he did not have lawn and garden experience, Lowe's informed him that he would have to accept a demotion and then work up to MDS in that department. The plaintiff refused a demotion.

When the plaintiff could not find another job, he took a leave of absence, which his doctor certified as the only available accommodation at that time. The plaintiff received disability benefits until January 2016. In June 2016, he applied for and received early retirement from Lowe's. The plaintiff then filed suit against Lowe's for disability discrimination and retaliation in violation of the ADA and for age discrimination.

Lowe's moved for summary judgment, which the court granted. On appeal, the plaintiff argued that he could still perform his MDS job or, alternatively, that the ADA required Lowe's to reassign him to another MDS position.

The 4th Circuit, however, designated reassignment as a last-resort accommodation. Other reasonable forms of accommodation take precedence over reassignment to protect the employer's discretion over hiring and encourage employers to try to accommodate employees with disabilities in the jobs they already hold. This prevents employees from being hurled into an unfamiliar position with new demands.

The court reasoned that the last-resort status of reassignment serves workplace fairness and morale because reassignment can disrupt the settled expectations of other employees. In fact, the ADA does not require an employer to reassign where doing so would bump another employee from his or her job.

Thus, the 4th Circuit upheld dismissal of the claims at summary judgment.

Elledge v. Lowe's Home Centers LLC, 4th Cir., No. 19-1069 (Nov. 18, 2020).

Professional Pointer: In providing ADA accommodations, employers should initially focus on modifying duties and providing mitigating measures to help employees with disabilities perform their work. Only after exhausting these options do employers have to consider the possibility of reassignment.

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