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Delaying injured employee’s training was not an unreasonable accommodation

By Marjorie Johnson, J.D.

An employer provided a reasonable accommodation to a recently hired employee who had suffered an ankle injury by allowing her to delay her training until several days after her temporary restrictions were lifted. It was not required to instead have a trainer come down to the first floor to provide training, the Fifth Circuit ruled in affirming dismissal of her ADA failure-to-accommodate claim on summary judgment. She also was unable to revive her disability discrimination claim since there was no evidence that she was disabled at the time of her disciplinary termination, and her race discrimination and HWE claims were properly dismissed due to her failure to exhaust administrative remedies (Jennings v. Towers Watson, August 25, 2021, Higginson, S.).

Temporary climbing restrictions. The employee was hired by the employer as a seasonal benefits advisor in May 2016, a position she had held for each of the three prior seasons. During the second day of mandatory training held on May 24, she fell and sustained injuries in the company’s parking lot. The next day, a doctor diagnosed her with left ankle pain and cleared her to return to work with certain restrictions that were expected to last until June 1. They included limiting walking up to two hours per day and refraining from climbing stairs.

The employee did not return to the training, which was held on the second floor, because she believed that there was no accessible elevator. She also claimed the employer denied her request to have a trainer meet her on the first floor. Instead, she was instructed to restart her training on June 6 and advised that if she failed to do so she would be unemployed. She complied and subsequently completed the training. On June 15, her supervisor instructed the team, including the employee, that they must call the “manager-on-duty” line and text his cell phone if they were going to be absent or tardy.

First EEOC charge. On June 20, the employee filed an EEOC charge alleging race and disability discrimination, failure to accommodate, and retaliation. In particular, she claimed that after being injured at work and seeing a doctor, her reasonable accommodation was denied and her start date was changed. She also claimed that she was told that she must return to work by that date regardless of her condition, that she was not paid for 2-1/2 training days she attended in May, and that similarly situated white coworkers received different treatment in this regard.

Fired for attendance issues. On July 6, the employee received a verbal warning for purported attendance issues. The documented warning stated that throughout June and July she was absent seven times, tardy twice, left work early twice, and failed to inform her supervisor she would be absent or tardy. She was also advised that failure to correct her behavior could result in a written warning and possible termination.

On July 8, she received a written warning asserting additional attendance violations, including one that very day. In response, she commented that she had been having computer problems and was being mistreated and treated differently than other employees. She was terminated four days later ostensibly due to her violations of attendance policies and procedures.

She subsequently filed a second EEOC charge alleging retaliation and eventually brought this lawsuit alleging a myriad of claims, some of which were dismissed. The district court ultimately granted the employer’s motion for summary judgment on her remaining ADA and Title VII claims. Amongst other things, the court found that she failed to exhaust her administrative remedies as to her discrimination and HWE claims, and that even if she hadn’t, her claims still failed as a matter of law because she did not suffer a disability under the ADA, she failed to establish an adverse employment action as to her race discrimination claim, there was no evidence of pretext, and she was not subjected to an actionable HWE.

Exhaustion ruling partially correct. She appealed. The Fifth Circuit first concluded that the district court erred in finding that the employee failed to exhaust her disability bias and non-accommodation claims. The factual allegations underlying the failure-to-accommodate claim—that after being injured while at work she requested an accommodation and did not receive it—were asserted in her first EEOC charge. In support of her discrimination claim, she alleged that the employer “falsely accused her of malingering and then conspired to discharge her” in order to avoid the issue of her requested accommodation. An investigation covering such facts, as alleged, could reasonably be expected to grow out of the assertions in her EEOC charges, which included allegations that the employer denied her requested accommodation and later terminated her in retaliation for filing a charge reporting this incident to the EEOC.

However, the appeals court affirmed the district court’s ruling that she failed to exhaust her race discrimination and HWE claims. As the basis for the discrimination claim she alleged that four black colleagues on her team were seated together in a row that faced away from the non-black colleagues. However, it was not reasonable to expect that an investigation into her EEOC charges, which mentioned only her claim that she was not paid for the training days completed before her injury while her white colleagues were treated differently, would uncover facts related to the alleged seating segregation. It was also not reasonable to expect that the agency’s investigation would have revealed the harassment she alleged in her HWE claim.

No failure to accommodate. Turning to the merits of the disability discrimination and non-accommodation claims, the Fifth Circuit noted that in concluding that her temporary injury could not establish a disability under the ADA, the district court failed to acknowledge the statute’s 2008 amendment and subsequent caselaw. However, it was unnecessary to determine whether this was error since even if she could show she was disabled, she could not demonstrate that she was denied a reasonable accommodation since the employer provided the accommodation of allowing her to restart her training at a later date, which she did. There was no evidence that this proposed accommodation—akin to unpaid leave that extended beyond her documented one-week limitations period—was unreasonable. “The ADA provides a right to reasonable accommodation, not to the employee’s preferred accommodation.”

No disability bias. Finally, the employee failed to revive her claim that she was discharged due to her actual disability since there was no evidence that she was disabled at the time of her July 12 termination. Rather, the only evidence of her medical diagnosis indicated that her limitations were expected to last until June 1.