An issue that has percolated for many years is whether an employer must offer a transfer to an open position as an accommodation to a person with a disability. Adrianna Cook worked for the Methodist Hospital for several years when she injured her back in 2012. She then worked in a light duty position for several months at the Methodist. Ms. Cook went out on FMLA leave for a few months. While out on FMLA leave, she asked her boss for accommodation in performing her duties several times. Eventually her boss talked to HR and told Ms. Cook she should seek other jobs. Cook applied for a vacant position in another part of the Methodist, but she was not selected.

The Methodist offered Plaintiff six months of unpaid leave. HR told her she could accept the leave. If she did not accept it, she would be considered to have abandoned her job. In the meantime, if her position was filled, she would have to find another position with the hospital. Cook did not wish to go that route, since she believed she could work in a clerical position. She did not respond to the hospital’s letter. The Methodist then terminated her.

Most-Qualified Policy

Ms. Cook filed suit. The Methodist filed a motion for summary judgment, saying it had a “most qualified” policy” and that policy was not discriminatory. The district court granted the motion.

On appeal the Fifth Circuit looked at the decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). In that decision, the Supreme Court held that in some circumstances, an employer is required to allow reassignment to a vacant position as an accommodation. But, the Supreme Court added that this requirement does not apply when an employer has a legitimate seniority system. If an employer could show valid undue hardship, the employer need not be required to allow reassignment.

The Fifth Circuit made quick work of the EEOC’s argument. It found that the request for reassignment would conflict with an employer’s most-qualified policy. The appellate court noted the split in the circuits on this issue. But, it found that to find otherwise would “impose substantial costs” on the employer. It would cast to the side the reasonable expectations of the other employees.

See the decision in EEOC v. Methodist Hospitals, No. 17-10539, 2023 WL 2553910 (5th Cir. 3/17/2023) here. The court’s ruling really has little meaning. It suggests the “most qualified policy” has some meaning at the hospital. But, really, every employer would claim to have such a policy. As such, every employer will have a right to reject a reassignment request. Comparing the most qualified policy to a seniority system is a false comparison.

Even so, the appellate court vacated summary judgment on this issue. It found that the lower court should also assess whether there might be “special circumstances” that might in this one instance justify disregarding the most qualified policy.

Failure to Accommodate

The decision addressed another issue that occurs in many situations. After her injury, Ms. Cook tried to engage in the interactive process to arrive at an accommodation. She requested and was granted FMLA leave five times. The Hospital assigned her to light duty work for a period of time. At some point, Methodist HR told Ms. Cook that there was nothing more they could do for her and she should resign. Ms. Cook believed this meant the employer was terminating any discussion about additional accommodations. Certainly, to most of us, that sounds like the end of the discussion.

But, the Fifth Circuit said no. The court agreed the employer should not have said that. But the court noted that the hospital continued to offer Ms. Cook additional personal leave as an accommodation. The court said there was no indication that the statement was a “final and unreviewable” decision regarding Ms. Cook’s disability. Now, the higher court is engaging in fact-finding. A jury should make this determination.

The court said that Ms. Cook continued to send medical updates to the hospital and she continued to apply for vacant positions. Sure, but none of those applications resulted in an actual job offer. The Fifth Circuit’s statement reflects a lack of experience in the real world. Most of us would agree that when HR tells you after months pf discussion they will not offer anything more, that such a statement is as final as it gets. In any even, whether that statement reflects a final offer of accommodation ought to be determined by a jury, not by a judge. It is a question of fact.

Stony Silence

The court relies on a prior decision, Loulseged v. Akko Noble, Inc., 178 F.3d 731, 738 (5th Cir. 1999 (for its conclusion). But, in Loulseged, the interactive process ended when the emoplyee did not respond to the employer’s offer of an accommodation. The employers offer was met with “stony silence,” said the court. That fact situation is much different from an employer telling an employee she should resign.

The interactive process is complicated for many reasons. One very large complication occurs when the employee believes s/he has been rebuffed. This ruling shows employees must be very careful when they believe the employer has said no.