Employer could have understood employee’s communications to be accommodation request

Reversing the grant of summary judgment against a discharged employee’s federal and state-law disability discrimination claims, a divided Eighth Circuit panel ruled that even though she did not explicitly request a reasonable accommodation for the recertification requirement that led to her discharge, a jury could conclude that her employer should have understood the communications she did make were an accommodation request. The employer was aware of her condition, her surgery, and her ongoing pain, as well as the limitations she experienced because of the condition and she notified it that she could not obtain the necessary certification until she had completed physical therapy. Judge Colloton dissented.

Certification requirement. In July 2010, the employee requested FMLA leave for corrective neck surgery related to a degenerative disease of her spine. Her request was approved and she remained out of work until mid-October. She returned as a respiratory therapist with physical restrictions in place for several weeks. In mid-November, her supervisor posted a memorandum that directed employees in the department to provide updated copies of their basic life support certifications (CPR training) later that month. Several employees, including the plaintiff, did not have up-to-date certifications. Although the employee took and passed the written portion of the certification, she informed her supervisor that she would be unable to take the physical portion until her doctor cleared her to do so and that she had an upcoming appointment with her doctor. She also thanked her employer for understanding her condition and stated that she was doing her “best” but wanted to “protect the surgery” she had undergone.

Needed four months of PT. Her doctor, however, determined that she needed to complete at least four more months of physical therapy before she could take the physical portion of the certification. She informed her supervisor and the next day she was fired because of her inability to perform basic life support. She brought suit against her employer and supervisors alleging, among other claims, that she was unlawfully fired on the basis of her disability. The district court granted summary judgment in favor of the defendants, determining that the employee was not qualified to perform the essential functions of her job because she was unable to provide basic life support. It also concluded that because she never requested a transfer, her employer was not under an obligation to reassign her.

Reversed on appeal. On appeal, a panel majority reversed the lower court’s summary judgment decision. Although the appeals court agreed that there was no genuine issue of material fact with regard to whether certification was an essential function of the positions held by the employee, it explained that the question was whether she could have performed the essential function with an accommodation. The employee argued that she should have been allowed additional time to complete the certification or reassigned to another position that did not require such certification. That argument was rejected by the district court, which concluded that the employee had produced no evidence of an accommodation request.

Question about whether she requested accommodation. Disagreeing, the appeals court found a fact issue with regard to whether the employee requested accommodation. It noted that upon being told that certification was due, she informed her supervisor in writing that she could not complete the certification’s physical component until being cleared to do so. At that point, the court noted, the employer was already aware of the employee’s disability because of her prior FMLA leave and information she had provided upon her return to work. She advised her employer that she was still experiencing pain in her neck and expressed appreciation to her supervisor for understanding her condition. Then, after her appointment, she called her supervisor and notified him that she needed additional months of physical therapy before she could complete the certification. She was then fired without further discussion.

These facts, the court concluded, could lead a reasonable jury to find that the employee had made her employer aware she needed accommodation, even if she did not ask for one “in so many words.” The court distinguished cases in which it had previously determined that the employer’s duty to accommodate had not been triggered, noting that the requests in those cases were “significantly more ambiguous.” In two of the three cases, for example, the employee had claimed to be “fine” and in another the employee had stated that he did not want an accommodation. In this case, by contrast, there was evidence from which a jury could determine that the employer “should have understood—or did understand” that the employee’s communications were a request for accommodation. Thus, a reasonable jury could conclude that the employee’s written notification that she would be unable to complete the physical portion of the certification and her subsequent statements about the need for physical therapy could “readily have been understood to constitute a request for accommodation of her condition.”

Judge Colloton’s dissent. Judge Colloton dissented, arguing that the majority’s opinion was “significant doctrinally” and that it erroneously eliminated the requirement that an employee clearly request accommodation. Although Judge Colloton agreed that there was no need for “magic words,” he nonetheless felt that the employee’s statements in this case were not sufficient to trigger the interactive process.

SOURCE: Kowitz v. Trinity Health, (CA-8), No. 15-1584, October 17, 2016.

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