With an aging population, we are already seeing more medical care issues in the work place. There will be more, not fewer, requests for accommodation. Since the ADA was amended effective in 2009, we are just now seeing the increase in requests for accommodation cases. Some folks just get the whole request for accommodation thing wrong. I am as guilty as anyone. A few years ago, I prosecuted a case alleging that failure to accommodate an older person whose doctor prescribed “reduce stress.” As I learned the hard way, that sort of accommodation is too ambiguous to enforce. Judges sympathize with employers trying to navigate confusing regulations.
We see some of this ambiguity in a case in which the employee was diagnosed with edema, also known as dropsy. Edema involves swelling of the extremities. The treatment involves medication which requires frequent urination. Jeffrey Gordon worked as a retail coverage merchandiser (RCM). His job was to drive around town stopping at various grocery stores to track sales, promote certain products, and talk to store managers about the product. In October, Plaintiff Gordon told his boss he had been diagnosed with edema and that he would be seeking alternative employment. He asked to be transferred to an office position, to allow greater access to bathroom facilities. The court granted summary judgment in Mr. Gordon’s case. But, the court does not acknowledge this alleged request for accommodation in October, 2012. See Gordon v. Acosta Sales and Marketing, Inc., No. 13-CV-662 (W.D. Tex. 2015). Instead, in its order granting the motion for summary judge, the court simply finds that the plaintiff sought reduced hours in October, 1012 and informed his boss that he would seek alternative employment within Acosta Sales. The court does not appear to acknowledge that with the change in employment would come greater access to a bathroom. Gordon, 12/22/2014 Order, p. 2-3.
Acosta Sales then hired someone to replace Mr. Gordon. In its response to the MSJ, the Plaintiff complained that this was part of an effort to force him to quit. But, the court disagreed. The judge found the employer was simply complying with the request of Kraft Foods that its RCM focus on only its products. In response to the email requesting fewer hours, the boss approached Mr. Gordon at a store and publicly berated him, “I am your f—ing supervisor. I can tell you to do whatever I want!” The plaintiff complained to the supervisor’s supervisor. At that meeting, Mr. Gordon said he wanted an accommodation of being moved away from his supervisor. Acosta Sales did investigate the incident. It disciplined the supervisor. But, it did not move Mr. Gordon away from the supervisor. Instead, it simply reassured him that the supervisor would not retaliate against him.
The court seemed to find it significant that the supervisor did not mention Mr. Gordon’s disability in his rant.The court also glossed over the Plaintiff’s allegation that the email was actually a complaint that he was being replaced regarding the Kraft foods – in addition to complaining that his hours were being reduced..
In its response to the MSJ, the Plaintiff argued that he suffered additional retaliation after the meeting with the Human Resources and the higher supervisor. But, the court found there was no real reprisal and that in his deposition, the plaintiff essentially admitted there was no genuine reprisal after the meeting with HR.
During the meeting with HR and the chain-of-command, the higher supervisor accused Mr. Gordon of lying and not disclosing his disability when he was hired. He had been hired just a month before October, 2012. Mr. Gordon took offense and walked out of the meeting. The Plaintiff did not address that allegation in its response. It is quite serious for any employee to walk out of a meeting with management. This is particularly so when asking for an accommodation. If the employee fails to cooperate in a discussion about accommodation, then the employer is relieved of the duty to provide any accommodation.
Later, the plaintiff submitted additional information from his doctor expressing the need for more frequent bathroom breaks. The employer responded that it would allow him more frequent breaks while driving around. The employee felt that was not enough. He believed that he was given a “Hobson’s chose” of his health or his job. So, he quit in March, 2013. In its response, the plaintiff alleged “constructive termination,” meaning that he was forced to quit. So, apparently, instead of responding to Acosta’s email regarding more frequent bathroom breaks and explaining why that would not work, the plaintiff simply quit. He said he had lost faith in the employer’s “system. ” Order, p. 5.
The burden to show work conditions are so bad that a person must quit is very high, indeed. Rarely does the Fifth Circuit find a situation so bad that a person was justified in quitting. Any plaintiff who alleges constructive termination will be toiling uphill. But, the bigger problem with this case is the poorly defined accommodation of “more frequent” bathroom breaks. The employer can request more information if it does not understand a particular request. But, here, here was little discussion. The employee walked out of one meeting regarding his accommodation. Mr. Gordon then did not respond to an email offering one alleged accommodation. At least in its response to MSJ, the plaintiff has not explained specifically how many more bathroom breaks he needed, why only an inside office job would offer the right amount of bathroom breaks, or why the accommodation offered by the employer, more frequent breaks, would not suffice.
Employers have a burden, too. They are generally not medical care providers. “More frequent” can mean one thing to one person and something entirely different to someone else. The court found that Acosta did offer a reasonable accommodation as a matter of law.
The court could and should have construed the facts more in favor of the non-movant. I find it remarkable that the judge expects the supervisor to include a reference to the disability during his yelling session, in order to connect the rant to this disability. This is summary judgment, after all, not an actual trial.
But, the request for accommodation is ambiguous. This request is vague, not too different from my old case of “reduce stress.” Requests do need to be specific, especially if the “requester” ends the discussion early.