Originally published by Alicia Voltmer.
In Dillard v. City of Austin, Texas, No. 15-50779 (5th Cir. Sept. 26, 2016), the Fifth Circuit affirmed summary judgment for the City of Austin on a former employee’s claims that the City violated the Americans with Disabilities Act, as amended (ADA), by terminating him for a disability and failing to reasonably accommodate him. The Court’s decision provides employers with useful reminders about the mechanics of the accommodation process.
Following a car wreck, the plaintiff was unable to perform his tasks as a manual laborer and field supervisor for the City’s Public Works department. Even though the plaintiff exhausted all available leave under the Family and Medical Leave Act and the allotted time under the City’s Return to Work Program, the City allowed him to remain on leave. Once he was released to limited duty, the City searched for other positions within the Public Works department to accommodate the restrictions, and offered him a temporary position as an administrative assistant.
The plaintiff accepted the temporary position even though he did not know how to complete administrative work. To assist him with gaining the necessary skills, the City gave him on-the-job typing and computer training, and allowed him to shadow another administrative assistant. His supervisor also showed him how to register for other City training programs, which he did not do. The plaintiff’s computer and typing skills did not improve, and his supervisor found him playing computer games, surfing the internet, sleeping, making personal calls, and applying for other positions within the City during his work time, allegations which he did not dispute. The plaintiff told the City he was unhappy in the position and asked for another job because he lacked the skills needed to be an effective administrative assistant. His doctors also provided further releases which expanded the list of activities he was cleared to perform. The City ultimately terminated the plaintiff’s employment and the lawsuit followed.
In support of its decision affirming summary judgment for the City, the Court reminded employers of the following principles related to the duty to accommodate:
- Just because the City could have fired the plaintiff after he exhausted all available leave options and had no specific return to work date, the fact that it retained him did not extinguish its obligation to reasonably accommodate him once he returned to work.
- The interactive process is a two-way street, and requires the employer and the employee to work together, in good faith, to determine a reasonable accommodation.
- Once an employee accepts a position as an accommodation, the employee must make an honest effort to learn and carry out the duties of the new job, particularly when the employer offers training assistance.
- Even though the plaintiff asked for another position, he did not attempt to fill his new role in good faith, and for this reason, he could not argue that the City should have continued the interactive process by offering him a different job.
- Employers should not attempt to elude the obligation to accommodate a disabled employee by giving him a job that he was destined to botch, with or without training, which was not the case here.
- Terminating an employee whose performance is unsatisfactory according to management’s business judgment is legitimate and nondiscriminatory as a matter of law.
- The ADA provides a right to reasonable accommodation, not to the employee’s preferred accommodation.
Employers should ensure that supervisors and Human Resources personnel understand the interactive process obligations and document all efforts to provide reasonable accommodations.
from Texas Bar Today http://ift.tt/2fjLz7L
via Abogado Aly Website