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IV. Is It a Reasonable Accommodation for Fern to Sit in a Plastic
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IV. Is It a Reasonable Accommodation for Fern to Sit in a Plastic Lawn Chair for Half of Her Shift? Since the focus of any disability inquiry no longer rests on the interpretation of whether an individual is disabled, but instead whether (i) employers have complied with their statutory obligations and (ii) discrimination has occurred, the safer course is to assume that all employees suffer from no disabilities and if indeed there is an impairment, assume the ADA applies and the employee qualifies for some sort of reasonable accommodation. The purpose of the ADAAA, in part, was to broaden the restrictive definitions that often had been judicially imposed, of course including the Sutton trilogy43 of Supreme Court cases. As a consequence, in the cases determined to date, few defendants have been successful. One notable exception is EEOC v. Eckerd Corp.44 Fern Strickland began working as a cashier at Eckerd’s in 1992. In 2000, Ms. Strickland transferred to a different Eckerd’s store, where she continued to work as a cashier. Rite Aid purchased the Eckerd Corporation in June 2007, and Ms. Strickland worked as a cashier for the Rite Aid store from the date of the acquisition until she was terminated on January 29, 2009. Ms. Strickland was diagnosed with osteoarthritis in both of her knees in June 2001. Her condition made it difficult for her to walk without the assistance of a cane or to stand for prolonged periods of time. At some point in 2001, Ms. Strickland began intermittently sitting in a chair at work to relieve pain in her knees, having knee replacement surgery in her right knee in 2006. Her knee pain nevertheless persisted and she continued to use the chair at work. In March 2008, Larry Frisbie became the district manager of the Rite Aid store. Several months later, Mr. Frisbie and Human Resources Manager Linda Sheffield visited the store and observed Ms. Strickland sitting in a plastic lawn chair behind the counter. Ms. Sheffield was perplexed by this observation because Rite Aid generally did not permit cashiers to sit while they were on duty and she had never seen a cashier sitting in this manner. According to Mr. Frisbie, cashiers were required to productively work on the sales floor stocking, cleaning and performing other housekeeping and general store duties when they did not have a customer at the register. When Mr. Frisbie and Ms. Sheffield asked Ms. Strickland why she was sitting behind the counter, Ms. Strickland informed them that she had provided Rite Aid a doctor’s note concerning her need to use the chair at work. Following the store visit, Ms. Sheffield checked Ms. Strickland’s file for a doctor’s note and found one from January 2007. The note stated that Ms. Strickland “requires a stool or chair to sit in at work . . . throughout the day, and most of the day due to severe arthritic symptoms.” After reviewing the note and speaking with Ms. Strickland, Ms. Sheffield determined that she needed more information about Ms. Strickland’s limitations as well as her work habits and ability to meet the requirements of the cashier position. Upon further investigation, Ms. Sheffield was informed by the store manager, Robin Jean, that Ms. Strickland had been permitted to sit intermittently and at her discretion for several years due to her arthritic symptoms; however, Ms. Sheffield did not find any evidence that Eckerd or Rite Aid had ever formally approved a sitting accommodation for Ms. Strickland. Moreover, Ms. Sheffield surmised from her interview with Ms. Jean that Ms. Strickland’s frequent sitting was causing productivity and personnel problems for the store. Based on her preliminary inquiries, Ms. Sheffield concluded that the 2007 doctor’s note was outdated and vague concerning Ms. Strickland’s precise limitations. Accordingly, Ms. Sheffield requested an updated and more specific doctor’s note regarding Ms. Strickland’s medical restrictions. Per Ms. Sheffield’s request, Ms. Strickland provided a doctor’s note in December 2008 stating that she “requires a chair at checkout and limited to 15 minutes or less at a time due to osteoarthritis.” In an accompanying handwritten note, Ms. Strickland indicated that “Dr. Ellis’s nurse ‘Allison’” could provide more information if necessary. In addition to requesting an updated doctor’s note, Ms. Sheffield asked Rite Aid Loss Prevention Manager Gibson to review security surveillance tapes over the register to determine how much time Ms. Strickland spent sitting idly and how much time she spent working productively. By mid-January 2009, Mr. Gibson had reviewed four days of video footage from the first week of January 2009 and he reported to Ms. Sheffield that, on those four days, Ms. Strickland was sitting down idly for about half of her shift. A loss prevention associate reviewed two additional days of tape and reported similar findings. After reviewing the updated doctor’s note and the loss prevention reports, Ms. Sheffield determined that she and Mr. Frisbie needed to meet with Ms. Strickland to determine whether they could find an appropriate accommodation for her. They scheduled a meeting with Ms. Strickland on January 15, 2009. The stated purpose of the meeting was for Ms. Sheffield and Mr. Frisbie to engage in an interactive dialogue with Ms. Strickland so that they could better understand her restrictions and try to identify reasonable accommodations. During the meeting, Ms. Sheffield and Mr. Frisbie advised Ms. Strickland that they had received an updated doctor’s note, but that the note still was unclear about Ms. Strickland’s limitations. They also informed Ms. Strickland about the results of the loss prevention surveillance review indicating that Ms. Strickland was sitting down idly for about half of her shift. At some point in the meeting, Ms. Sheffield and Mr. Frisbie asked Ms. Strickland about the permanency of her requested sitting accommodation. Ms. Strickland responded that she would likely need the accommodation forever. Shortly after the January 15 meeting, Ms. Strickland provided Ms. Sheffield and Mr. Frisbie a new note from her doctor stating that she “needs to sit at least 30 minutes per hour worked throughout the work day.” The new note was consistent with the amount of time that Ms. Strickland had been observed to be sitting idly on video surveillance tapes; however, the note did not provide a rationale for the half-time sitting restriction or a more specific assessment of Ms. Strickland’s limitations, as requested by Ms. Sheffield and Mr. Frisbie. Based on their most recent discussions with Ms. Strickland and the new doctor’s note, Ms. Sheffield and Mr. Frisbie concluded that they still needed more information about Ms. Strickland’s restrictions and needs to identify a reasonable accommodation. On January 19, 2009, Ms. Sheffield faxed a written cashier job description to Dr. Ellis and asked him to review it to ensure that Ms. Strickland was medically capable of performing the essential functions of the job. The purpose of Ms. Sheffield’s request was to determine whether Ms. Strickland’s doctor could recommend any accommodation other than the “very restrictive 50% sitting accommodation” requested by Ms. Strickland and indicated by the doctor’s most recent note. Dr. Ellis never responded to Ms. Sheffield’s job description inquiry and Ms. Strickland admitted that she never asked Dr. Ellis to provide the requested information or otherwise followed up to see if he had responded to Ms. Sheffield’s inquiry. Within the next several days, Ms. Sheffield concluded that Rite Aid could not provide Ms. Strickland with the sitting accommodation that she had requested. Mr. Frisbie, as well as Ms. Sheffield’s direct supervisor, concurred. Mr. Frisbie and Ms. Sheffield met with Ms. Strickland on January 29, 2009, to tell her that Rite Aid would not allow her to sit for half of each hour that she worked. Per Ms. Sheffield’s recommendation and accommodation decision, Ms. Strickland was not permitted to continue working on January 29, 2009, and Ms. Strickland was terminated on that date. In her lawsuit (filed on her behalf by the EEOC), Ms. Strickland contended that (i) she was not provided a reasonable accommodation for her disability, and (ii) was then terminated on account of her disability, in violation of the ADA. To prevail on her reasonable accommodation claim, Ms. Strickland was required to prove that she had a disability (which was assumed here) and that she was qualified for the Rite Aid cashier position. She also had to prove that the defendant failed to provide a reasonable accommodation for her disability. For the defendant to avoid liability, it was required to show that Ms. Strickland’s accommodation would impose an undue hardship on its business or operations. Not surprisingly, the defendant contended that Ms. Strickland was not a qualified individual because she could not perform the essential functions of the cashier position, either with or without a reasonable accommodation. Moreover, the defendant asserted that Ms. Strickland’s requested accommodation of sitting for half of every hour she worked would impose an undue hardship on its business. The court determined there was no question that the cashier job at issue here had significant physical requirements and that the defendant’s written job description for the cashier position included several customer service and housekeeping duties that are physically demanding, including unloading merchandise, stocking shelves and end-caps, building merchandise displays, and ensuring that the store is always clean and visually pleasing. To accomplish those duties, the job description specified that cashiers must be able, among other things, to (1) regularly stand dynamically for long periods of time without a break, (2) regularly walk about, (3) occasionally stand statically for long periods of time without a break, and (4) occasionally lift and carry up to fifty pounds. Consistent with the written job description, the store manager and district manager testified that cashiers were expected to productively work on the sales floor, rather than sit idly, when they did not have a customer at the register. According to Mr. Frisbie, cashiers spent much of their time at work walking customers to a department, cleaning, stocking shelves, unloading trucks, implementing price changes and performing other inventory duties throughout the store. For that reason, cashiers were not permitted to sit while on duty and they were expected to stay busy doing tasks that generally required movement around the store. The court, crediting Ms. Strickland’s testimony and her doctor’s assessments, wrote that Ms. Strickland did not meet the physical requirements described in the written job description, and could not perform many of the tasks identified by her employer as essential, without an accommodation. The determinative question was whether Ms. Strickland could perform the essential job functions with a reasonable accommodation, and the court wrote that the EEOC had not met that burden with respect to Ms. Strickland. The only accommodation that Ms. Strickland ever identified was to be allowed to sit in a chair for at least half of her work day and the EEOC did not explain how sitting idly for half of the work day would enable Ms. Strickland to (1) work productively on the sales floor when there is not a customer at the register, or (2) meet the physical demands required to assist with truck unloads and perform regular stocking, cleaning and inventory-related duties. In fact, the court wrote that the sitting accommodation would simply eliminate, rather than enable Ms. Strickland to perform, many of the essential functions of the cashier job and that the proposed accommodation was per se unreasonable. The EEOC also argued that the accommodation was nevertheless required by the ADA because Ms. Strickland had been allowed to sit for the last eight years of her employment without incident. The defendant conceded that Ms. Strickland began using a chair intermittently at work in 2002, but during the first five years that Ms. Strickland was allowed to sit, her store was operating as an Eckerd rather than as a Rite Aid. When Rite Aid purchased Eckerd in 2007, it reduced the payroll budget and correspondingly increased the expectations of its cashiers. Assuming that the sitting accommodation was reasonable for an Eckerd cashier, it was not necessarily feasible once the store became a Rite Aid, as evidenced by the fact that Mr. Frisbie and Ms. Sheffield began questioning Ms. Strickland about her sitting within about a year of the acquisition. In any case, the court wrote, it is well-settled that an employer’s previous willingness to provide a certain accommodation does not establish that the accommodation is reasonable or required. Additionally, the EEOC contended that the functions that Ms. Strickland was unable to perform were not essential because she was not personally asked to do them during the last several years of her employment. On this point, the store manager testified that she exempted Ms. Strickland from any physically demanding tasks and that she allowed her to sit frequently during the work day. The court determined that as with any other type of voluntary accommodation, an employer does not concede that a job function is unessential by temporarily removing the function from a disabled employee’s duties. Finally, the last effort by the EEOC was to suggest that the defendant was liable under the ADA as a result of its failure to discuss alternative accommodations that might have enabled Ms. Strickland to perform the essential functions of her job. The court disposed of this contention summarily, holding the Eleventh Circuit has held that an employer has no affirmative duty even to engage in an interactive process where the disabled employee fails to identify a reasonable accommodation—the only accommodation that Ms. Strickland identified during her employment with the defendant was per se unreasonable. The court wrote that “[e]ven now, neither Strickland nor the EEOC can point to any accommodation that would enable Strickland to perform the essential functions of the cashier job. Given Strickland’s acknowledged physical limitations, it is doubtful that any such accommodation exists.” To the extent that the ADA required an interactive process in this case, it was determined that the defendant clearly met its burden in that regard—Mr. Frisbie and Ms. Sheffield conducted an investigation during which they gathered information from various sources concerning Ms. Strickland’s condition, her work habits, and her ability to perform the cashier job in spite of her physical limitations. They subsequently met with Ms. Strickland several times, at least once with the express purpose of identifying and discussing potential accommodations. Having fully engaged in a dialogue with Ms. Strickland about her limitations and ability to be accommodated, the court wrote that the defendant was not liable under the ADA for failing to consider accommodations that Ms. Strickland herself never identified or requested. Based on the foregoing, the district court concluded that the sitting accommodation requested by Ms. Strickland was not only unreasonable, it was patently incompatible with the essential functions of the cashier job as identified by management and routinely performed by every other cashier except Ms. Strickland. It was undisputed that Ms. Strickland never identified an alternative reasonable accommodation, and there was no indication that such an accommodation exists. Accordingly, Ms. Strickland was not a “qualified individual” under the ADA. The court next addressed the “undue hardship” defense. An accommodation is an undue hardship when it can only be accomplished with “significant difficulty or expense” to the employer.45 To determine whether that is the case, a court considers several factors, including the nature and cost of the accommodation and its impact on an employer’s operations and workforce.46 Accommodations that result in other employees having to work harder or longer are often denied on the ground of undue hardship.47 The EEOC acknowledged that Rite Aid operates on a lean staffing model. There are generally only one or two cashiers and a store manager or other supervisor on duty during any given shift. In addition to checking out customers at the register, cashiers are responsible for a number of other customer service and housekeeping duties, including unloading merchandise, stocking shelves, cleaning, working in the photo lab, and assisting customers with their shopping needs. To fulfill those duties, cashiers are expected to productively work on the sales floor any time they do not have a customer at the register. The court noted that given the defendant’s business model, having a cashier sit idly for half of her shift would necessarily cause productively and morale issues. In fact, there was undisputed evidence that Ms. Strickland’s sitting interfered with the defendant’s operations in a number of ways. Ms. Strickland admitted that she (1) did not work in the photo lab, (2) only mopped the floor two or three times during her entire Eckerd/Rite Aid employment, and (3) helped stock only a small fraction of the store, and there was testimony that other Rite Aid employees became frustrated by Ms. Strickland’s low productivity. The EEOC countered that the sitting accommodation was essentially cost-free because Ms. Strickland purchased her own chair, and that the defendant can easily absorb any impact associated with the accommodation because it is a large corporation with over 4,700 stores and 80,000 employees. The court held that these arguments failed to account for the true cost of the accommodation and its impact on the particular store where Ms. Strickland worked. Every employee, including Ms. Strickland, testified that the cashier job required frequent movement throughout the store in order to accomplish a variety of tasks that are essential to the operations of the store. At any given time, there were only one or two cashiers who are available to perform the required work. While Ms. Strickland was sitting, the work was either being done solely by one person or not being done at all. The court wrote that the defendant’s size does not ameliorate the impact of that arrangement on the productivity and morale of the specific store. Therefore, the requested sitting accommodation met the definition of “undue hardship” under the ADA. V. Plaintiffs Almost Always Get Their ADA Day in Court The news for plaintiffs is much better. Although Rite Aid ultimately prevailed in the district court, courts around the nation have been far more sympathetic to plaintiffs, at least allowing them to have their day in court to attempt to prove some sort of disability discrimination. Again, many cases are unreported, but do serve to show that courts are far more sympathetic to plaintiffs’ disability discrimination claims after the ADAAA than before its adoption. In LaPier v. Prince George’s County,48 Steven LaPier began training as a student officer at the Police Department sometime in October 2008. Mr. LaPier alleged in his lawsuit that he witnessed “what he considered inappropriate and unprofessional conduct by the police instructors” from the “very first day of the Academy.” He alleged various examples of this conduct—e.g., the instructors’ use of “foul language”; the instructors’ forcing the cadets to fold clothes for weeks; an instructor’s punching a hole in a wall and “telling” a cadet to pay for it; and the instructors’ forcing students to change in a parking lot “at some point during the winter months.” Although Mr. LaPier alleged that he and other student officers were subjected to “demeaning and dehumanizing treatment” on a daily basis, he alleged no details regarding such treatment. He also alleged that he communicated these concerns to Major David Morris who, at some point, communicated them to “appropriate personnel” at the Department. On April 9, 2009, Mr. LaPier passed out during a training run. One or more doctors diagnosed him with Osler–Weber–Rendu syndrome, which is a chronic blood disorder that causes decreased oxygen in the blood. Mr. LaPier resumed his normal training activities after a weeklong period during which his doctors advised him to perform only light work. In a letter dated May 5, 2009, one of Mr. LaPier’s doctors informed the County that Mr. LaPier was fit to resume normal training activities. The County’s Medical Advisory Board (MAB) met on June 4, 2009. The MAB reviewed Mr. LaPier’s medical records, determined him to be unfit for duty, and recommended his separation from the Police Department. The Police Chief advised Mr. LaPier of the Board’s recommendation in a letter that the Chief signed on June 9, 2009, and delivered on June 18, 2009. Mr. LaPier appealed to the County Personnel Board the MAB’s recommendation that the Chief terminate him. Mr. LaPier was represented by legal counsel during this appeal and was permitted to produce witness testimony on his behalf. Mr. LaPier also alleged that the Personnel Board made a decision and transmitted it to the County’s law office for review, but that the County’s law office unjustifiably failed to permit the Personnel Board’s decision to issue. On June 17, the day before Mr. LaPier received the termination letter, he learned of a cheating scandal in which instructors were spoon-feeding exam answers to police cadets. Apparently, on the same day, Mr. LaPier informed Major Morris of his discovery, who in turn informed the Chief. On October 14, 2010, Mr. LaPier filed a complaint containing six counts. While not addressing the civil rights violations alleged by Mr. LaPier in his lawsuit, he asserted a claim for violations of the ADA and ADAAA, along with a claim for violation of the Rehabilitation Act of 1973. In brief, the County argued that Mr. LaPier was not a qualified individual with a disability under the ADAAA. An individual can show that he is disabled in three ways, only two of which are relevant to this case, under the ADAAA. An individual can show that he suffers from “a physical . . . impairment that substantially limits one or more major life activities of such individual.”49 Alternatively, an individual can show that his employer regarded him as having such an impairment.50 Under the ADAAA, the court noted that an individual has an actual disability where he suffers from a physical impairment that substantially limits at least one major life activity.51 One can divide this definition of disability into three prongs: (1) whether someone suffers from a physical impairment; (2) whether the physical impairment limits at least one of the person’s major life activities; and (3) whether such limitation is substantial. In this case, the court determined that Mr. LaPier had adequately alleged that he had a physical impairment—a chronic blood disorder. Further, the court wrote that Mr. LaPier had sufficiently stated that this impairment limited a major life activity. The ADAAA defines “major life activities” to include “breathing,” as well as “respiratory” and “circulatory” functions.52 Here, Mr. LaPier had alleged that he passed out on account of a chronic blood disorder that causes decreased oxygen in the blood, and at a minimum, the court noted that this event would seem to implicate breathing, respiration, and/or circulation. Therefore, the only question for the court was whether Mr. LaPier had satisfactorily stated that his blood disorder “substantially” limited a major life activity. As the court noted, the ADAAA does not define the phrase “substantially limits.” In an attempt to fill this gap, the court reviewed the ADAAA’s legislative history and concluded that “although the [ADAAA] evinces Congress’s intent to lower the threshold for demonstrating a disability, the impairment’s severity must rise above a floor of material restriction.” Here, at a minimum, the court determined that Mr. LaPier had suitably asserted that his blood disorder substantially limited the major life activities of breathing, respiration, and/or circulation. “To reiterate, Plaintiff alleges that he suffers from a chronic blood disorder that, inter alia, causes decreased oxygen in the blood. Plaintiff maintains that he has experienced ‘bleeding events’ from his adolescence. Plaintiff further avers, and Defendants do not dispute, that Plaintiff lost consciousness during a training activity. In light of these allegations, it is plausible that Plaintiff’s blood disorder limits his ability to engage in major life activities (e.g., breathing) compared to most people in the general population. Anything less would make a mockery of the ADAAA’s mandate that ‘[t]he definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.’”53 Accordingly, the court held that Mr. LaPier had stated a cognizable claim for actual disability. The next issue addressed by the district court related to Mr. LaPier’s allegation of a perceived disability. The ADAAA provides that disability means being “regarded as” having an impairment that substantially limits at least one major life activity.54 An employee may satisfy this definition by showing that his employer subjected him to discrimination “because of a . . . perceived . . . impairment whether or not the impairment limits or is perceived to limit a major life activity.”55 Here, Mr. LaPier alleged that the County perceived him as disabled because he provided the County with medical documentation of his blood disorder and the County relied on such documentation in determining him to be physically unfit for duty. The County did not dispute these assertions. Instead, the County contended that Mr. LaPier’s blood disorder was “transitory and minor” and, therefore, did not fall under the ADAAA’s “regarded as” definition of disability.56 The court wrote that the foregoing discussion, however, demonstrated that Mr. LaPier had adequately alleged that his blood disorder was more than minor. Moreover, the ADAAA defines “transitory impairments” as those with “an actual or expected duration of 6 months or less.”57 In this case, by contrast, Mr. LaPier maintained that he has suffered from his blood disorder since he was an adolescent. Therefore, the court determined that the County’s argument was without merit and that Mr. LaPier had stated a cognizable claim for perceived disability. Alternatively, the County contended that Mr. LaPier had failed to state a prima facie case for disability discrimination. In this case, as the court explained, Mr. LaPier had suitably asserted that he came within the ADA’s protected class because he had stated a cognizable claim that he is disabled under the ADAAA. Although Mr. LaPier’s allegations were “somewhat sparse,” they sufficed to state that Mr. LaPier was performing at a level that met the County’s legitimate expectations. Nevertheless, in light of these admittedly sparse allegations, the court held that Mr. LaPier had stated a facially plausible claim that he can satisfy the elements of a prima facie case. The court also held that because Mr. LaPier had stated a cognizable claim for disability discrimination under the ADAAA, “it forcibly follows that he has stated a cognizable claim for disability discrimination under the Rehabilitation Act.” Directory: articles articles -> Ancient Ecologies and the Biblical Perspective articles -> Tour de France by owen mulholland articles -> 1-techniques for airborne radome design, volume 1 Authors articles -> God's Perspective on Man articles -> Mythopoetic language in the psalms articles -> Executive report of key results of recent research on supplier development strategies and outcomes articles -> Egeny Mironov (born 1966) is a Russian film and stage actor articles -> Intro to Journalism September 30, 2005 articles -> For immediate release usta nominates katrina m. Adams as chairman of the board, ceo and president Download 164.69 Kb. Share with your friends:
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