ADA didn’t require automatic reassignment when employee didn’t apply for it

By Joy Waltemath

By Lorene D. Park, J.D.

Granting summary judgment against the EEOC’s ADA wrongful discharge claim, a federal district court in South Carolina agreed with a magistrate judge that a long-time employee could no longer perform the essential functions of her position due to deteriorating health, so was not a “qualified individual” under the ADA. The court rejected the EEOC’s argument that the employer had a duty to automatically reassign her to a vacant position even though she did not apply for any position. Moreover, the record showed that the employer worked with her to find another position but she refused to apply for any jobs that paid less than her prior hourly rate (EEOC v. McLeod Health, Inc., September 21, 2017, Hendricks, B.).

As detailed in a magistrate judge’s report, the employee was born with congenital defects of one arm and both legs, which affected her ability to stand or walk for long periods, and she fell regularly. As the editor of the employee newsletter, she was responsible for interviewing people, taking photographs, and writing stories. She agreed it was better to interview people in person and she regularly traveled among the employer’s campuses and to off-campus events.

Deteriorating performance and health. In late 2011, a supervisor noticed a decline in the employee’s enthusiasm and performance; including her ability to meet deadlines. She was also declining physically—she was frequently absent and was visibly unstable. After she had several falls, she was asked to undergo a fitness for duty (FFD) exam. In 2012, a nurse conducted the FFD and recommended a functional capacity exam (FCE), so the employee was put on leave. The professional who performed the FCE concluded that she was a “high fall risk, high injury risk.” He suggested limiting her to a 10-mile vicinity, modifying her chair, and providing a scooter. He refused to clear her for work unless these conditions were met.

Termination. The employer decided the employee could not perform the essential functions of her job, which required navigating campuses within a 100-mile radius. She was offered medical leave and a recruiter helped her search for open positions, though she found none at her pay grade and refused to apply for others. The employer also repeatedly suggested she get input from her own doctors. Eventually, she was terminated under a policy limiting leave to six months.

ADA claims. The EEOC filed suit alleging: (1) the employee was subjected to an unlawful medical exam; and (2) she was forced on leave and fired based on her disability. The court previously granted summary judgment on the medical exam claim, agreeing with a magistrate that the ability to safely navigate the employer’s campuses was an essential function and based on the employee’s falls and declining performance and health, the request for a medical exam was job-related and consistent with business necessity. The wrongful discharge claim was sent back to the magistrate for further analysis and, after further briefing from the parties, the magistrate recommended that the employer’s motion for summary judgment be granted.

EEOC can’t graft failure-to-accommodate claim on wrongful discharge. Agreeing with the recommendation, the court first addressed what it described as an attempt by the EEOC to “move the goal posts.” Specifically, after discovery closed and the magistrate found that the employee’s failure to apply for other positions constituted a failure to engage in the interactive process, the EEOC introduced a new theory. It argued that the employer’s failure to accommodate the employee through an automatic reassignment to a vacant position should be viewed as evidence supporting a constructive discharge claim. However, the EEOC never sought to amend the complaint to add a failure-to-accommodate claim and, without such an amendment, this new claim could not be raised by grafting it onto the wrongful discharge claim, explained the court.

Employee could not perform essential functions. The court next agreed that the employee’s wrongful discharge claim failed because she could not make a threshold showing that she was a “qualified” individual. Based on the FCE, she was not cleared for work unless all restrictions, including a limit to a 10-mile vicinity, were met. The employer’s accommodation committee found that these restrictions would not allow the employee to perform the essential functions of her job, which required traveling within 100-mile radius to do interviews and take pictures. The employer advised her numerous times that any contrary medical opinion would be considered, but she never provided one. Accordingly, the magistrate correctly concluded that she could not perform the essential functions of her job with or without reasonable accommodations.

The EEOC appeared to have abandoned its argument that the employee’s failure to get a second opinion from a doctor should be excused under the futile gesture doctrine. Nonetheless, the court addressed the issue and found that the agency could not meet its burden of showing that the circumstances surrounding the breakdown in the interactive process created an objectively reasonable perception that the process was at an end. Indeed, she was repeatedly invited to submit evidence challenging the characterization of her limitations after the FCE.

Automatic reassignment not required. Moreover, the employer did not have an affirmative duty to automatically reassign the employee to a vacant position without requiring her to apply or compete for the position, the court continued. The EEOC relied on its guidance on reasonable accommodations to argue otherwise, but it conveniently omitted the part of the guidance stating that “the employer should consult with the employee about his/her preference before determining the position to which the employee will be reassigned.” Here, the employee was put on leave because she could not perform essential functions of her job, and a recruiter tried to help her find an alternate job within the company, but the employee repeatedly said she wasn’t interested in jobs that paid less than what she had been making and she never submitted any application for any potential reassignment positions.

Based on the foregoing, the court found no evidence raising the “slightest inference” of unlawful discrimination. To the contrary, the evidence indicated that the employee was considered eligible for the only vacant position for which she expressed a passing interest, even though she met none of the preferred qualifications. Far from being evidence of bias, this indicated a willingness by the employer to take a “generous view” toward her qualifications. In any event, it was pure speculation for the EEOC to assert that the mere fact she was not reassigned meant the reason for her termination was pretextual. Summary judgment was therefore warranted.

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