Asking if injured VP could lead from wheelchair, blocking return to work suggest ADA violations

By Joy Waltemath

By Lorene D. Park, J.D.

A federal district court in Ohio has denied summary judgment against ADA discrimination and retaliation claims by a former operations vice president who was not allowed to return to work after he became paraplegic. The employer took several actions after his injury that raised triable issues, including: questioning whether he could lead from a wheelchair; terminating his home access to the network; denying his requests to return to work; accusing him of insubordination; and cutting off his disability benefits (Boltz v. United Process Controls, May 16, 2017, Dlott, S.).

Serious injury. The employee was vice president of operations for a company that provides automation solutions to furnace equipment manufacturers. For 16 years, he managed two facilities in the United States and two in China. He regularly worked from an Ohio facility, but also had a home office with teleconference and other equipment, as well as a home firewall to ensure security. On September 24, 2015, the employee was injured while bicycling and became a paraplegic. He submitted a disability claim form signed by his attending physician, who opined that he was “currently unable to work at all,” but would “eventually could return to office/managerial work” and gave an estimated return to work date of four to six months.

Leading from a wheelchair. On October 27, the company president sent letters to the employee and his wife (also a VP at the company) notifying them that the extensions of their employment contracts was canceled. On November 4, the president met with the employee to discuss the company’s future and asked how he could lead from a wheelchair. The president said he believed it would be “difficult” for the employee to lead because “a leader has to do sales and be the face of the company.” The employee responded that his leadership came from his brain, not his legs. Nonetheless, the president took over responsibility for overseeing China operations.

Return blocked. On November 9, the employee’s paid leave was exhausted; from there on he received only 60% of his regular pay through short-term disability. Later that month, his wife was terminated and he lost home access to the corporate server. He emailed the company president and HR manager, stating his doctor declared him “fit for duty,” that he planned to work at home as a “reasonable accommodation,” and he would work back into a normal schedule.

In a November 23 letter, the president said he couldn’t return until “safely able to do so.” The letter also discounted work done by the employee since his injury: “Reading occasional emails or documents at home . . . does not of course indicate that you have by any means been functioning as the Operating Officer of two or really, three distant locations. . . . Among other things, the Operating Officer of UPC needs to maintain a consistent presence” in the office. The president told the employee to direct disability related information to the HR manager.

Thereafter, the employee provided doctors’ notes indicating he could return immediately if working from home but the company president again refused, saying his VP duties required office attendance and travel, and it was not “appropriate, or healthy” for him to return yet.

Purported insubordination. Meanwhile, the employee also emailed the president of the parent company, describing the company’s actions and saying it was “crystal-clear” they did not want him to return. A response email denied that the employee was not wanted and expressed concern that he made “outright accusations” against the company and might be preparing to sue. The email stated he should not return until addressing the doubts raised by his actions. The corporate parent’s president also gave business reasons for the employer’s various actions. On December 23, the employee spoke to the disability insurance carrier and the HR manager about his benefits. He was soon reprimanded by the company president, who said his actions were “insubordinate.”

Resignation. The short-term disability insurer terminated the employee’s benefits on December 31, 2015 because he was released to return to work. He resigned a month later, detailing threats of discipline for alleged insubordination and saying it was clear that if the employer ever did allow him to return, it would be a toxic environment.

Disability discrimination. Moving for partial summary judgment against the employee’s ADA and state-law disability discrimination claims, the employer argued that he was not qualified for his VP position after his accident because regular on-site attendance was essential. Finding a triable question, the court first noted that the Sixth Circuit case on which the employer relied did not mandate the conclusion that on-site attendance is essential for all positions. Also, the EEOC has stated that permitting an employee to work at home can be a reasonable accommodation if the job, or parts of it, can be done at home without causing “significant difficulty or expense.”

Here, both parties offered sufficient facts supporting their positions such that the court could not make the determination as a matter of law. While the employer pointed out that the VP position requires visiting several facilities, both here and in China, and requires 30 days of travel per year, the employee offered rebuttal evidence that the employer had supported a home office for him. He had multiple computer displays, a VPN firewall, and teleconferencing equipment, and he routinely participated in conference calls and performed technical duties from home.

Also, while the employer argued that it reasonably accommodated the employee with a leave of absence, the court found a triable question on whether that was really reasonable, considering it was an unpaid leave of absence once the disability benefits were terminated.

Retaliatory constructive discharge. Summary judgment was also denied on the retaliatory constructive discharge claim. The employer took several actions in the immediate aftermath of the employee’s injury that raised a reasonable suspicion it did not want him to return, including canceling the extension of his contract, questioning whether he could lead the company from a wheelchair, terminating his home access to the network, and denying his requests to return to work. There was also evidence the parties’ relationship deteriorated after the employee’s email to the corporate parent’s president, who questioned his loyalty and said he would have to “clear certain doubts” before being reinstated. The employee was also accused of insubordination and had his benefits cut off. From all of this, a reasonable jury could conclude that the “writing was on the wall” and the employer never would allow the employee to return to his position.

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