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Divided 10th Circuit says adverse employment action required for failure-to-accommodate claims

By Lorene D. Park, J.D.

Finding no reversible error in a district court’s jury instructions on a county employee’s failure-to-accommodate claim, the Tenth Circuit held that an adverse employment action is an element of all discrimination claims under the ADA, including those based on the failure to accommodate a disability, and without an adverse action the employee’s claim necessarily failed. Affirming the judgment against her, the appeals court also found that she could not now complain over the lack of a constructive discharge instruction because she had not raised that claim below. Also, any error in the undue-hardship instruction was harmless because that issue was not relevant once the jury found no adverse employment action. Judge Holmes dissented on the issue of whether an adverse action is required for a failure-to-accommodate claim (Exby-Stolley v. Board of County Commissioners, Weld County, Colorado, October 11, 2018, Hartz, H.).

Injury. The employee worked as a county health inspector, and her job required that she inspect restaurants, bars, and other places that handle food. While on the job in late 2009, she broke her right arm and required two surgeries, the second of which was in November 2011. Because of her injury, she had to use makeshift devices to assist her in tasks, such as lifting, moving, and opening objects, and she had to learn to write using her left hand. The inspections therefore took her longer than before, and she could not complete the number required for her position.

Meetings with supervisors. In March 2012, she received a poor performance evaluation, in part because she was behind in her work. She met with her two supervisors to explain her issues, but the parties disputed the extent to which potential accommodations were discussed. In April she began working at a part-time office job, which she understood would be temporary. A second-level supervisor suggested she go on disability and allegedly expressed anger when she refused. In June the employee’s workers’ comp physician established what her permanent restrictions would be. She met with her supervisors and a physician on June 19 and suggested various accommodations, all of which were allegedly rejected with no offered alternatives.

Resignation. According to the employee, as she was leaving the meeting, the second-level supervisor asked if she wanted to write the letter of resignation herself or have him do it, and she felt she was being told to resign. The went to his office and looked at job openings but there were none with the county for which she was qualified other than janitorial work. He suggested long-term disability, but that would not have allowed her to return to her job without reapplying. On June 21, the employee emailed her colleagues informing them that her last day would be June 29. She wrote: “After a final evaluation with the physician and meeting with management it is apparent I am no longer able to perform the duties required in [my] job description.”

The county’s version of events was different, and the supervisors claimed that in the June 19 meeting, the employee requested that a new position be created for her by piecing together various tasks from her job and other positions. The supervisor told her it would not be fair or workable to take lighter tasks from her fellow employees to cobble together a new job for her. The second-level supervisor claimed he was “absolutely surprised” when she responded that the county wouldn’t provide her the requested job, she “couldn’t do the job” so she was resigning. He said he asked if she needed help writing a resignation letter. The HR rep claimed that finding an accommodation could take six to eight months, so she was also surprised by the resignation. The head of HR also testified that, at the time of the resignation, the county was far from terminating the employee, a process that requires several steps, none of which had been taken.

Prior proceedings. The employee filed suit under the ADA and the Rehab Act, claiming the county failed to reasonably accommodate her disability, failed to engage in the interactive process to find an accommodation, and terminated her because of her physical restrictions. The case went to a jury, and the county argued that placement in a temporary half-time office job was not an adverse employment action because the employee fully agreed and lost no pay (the reduction was offset by workers’ comp). It also argued it took no later adverse action because she voluntarily resigned. The jury found that the employee proved she had a disability, was a qualified individual but failed to prove by a preponderance of evidence that she was discharged, not promoted, or subjected to another adverse action. She appealed.

Adverse action required for failure-to-accommodate claims. Affirming, the Tenth Circuit first thoroughly discussed the meaning of an “adverse employment action” with respect to “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” The appeals court explained that even failure-to-accommodate claims require proof of an adverse action related to the disability.

The majority found unpersuasive the Seventh Circuit and Fifth Circuit cases cited by the employee as rejecting the requirement for failure-to-accommodate claims, because the cited text appeared to be dictum in both cases and in the Seventh Circuit case appeared to ignore, without explanation, contrary statements by the same court. Also rejected was the employee’s argument that a failure to accommodate, in and of itself, could constitute an adverse employment action. It noted, for example, that refusing to move a wheelchair-bound employee a few feet closer to an entrance might not be materially adverse if the extra distance was a mere inconvenience.

No constructive discharge, no adverse action. On appeal, the employee complained that the district court erred by rejecting her proposed jury instruction that a constructive discharge occurs when working conditions are so intolerable a reasonable person would feel compelled to resign. However, explained the appeals court, she never asserted that she had a constructive discharge claim. Her amended complaint made no mention of it but instead alleged that the employer’s ADA violations “culminated in [her] discharge from employment.” And that the county fired her. The district court was well within its discretion in excluding from trial issues and claims that were not set forth in the pretrial order and refusing to instruct the jury on such matters.

The employee’s last argument that the lower court improperly failed to instruct the jury on undue hardship also failed. Any error in that regard was harmless, said the appeals court, because there was no need for the jury to address undue hardship once it found no adverse employment action.

Dissent over whether adverse action is required. Judge Holmes dissented, rejecting the majority’s conclusion that an adverse employment action is a required element for an ADA failure-to-accommodate claim. In Judge Holmes’ view, the majority was departing from controlling precedent in Punt v. Kelly Services.

The majority also discussed Punt and disagreed with Holmes’ interpretation. The majority explained that the language used in Punt was quoted from the First Circuit’s decision in Higgins v. New Balance Athletic Shoe, Inc., where Judge Selya was recognizing that the absence of a need to use the McDonnell Douglas framework to prove discriminatory intent in failure-to-accommodate claims (because the failure to accommodate was necessarily “because of a disability”) did not affect the adverse-employment-action requirement. Said another way, the fact that the McDonnell Douglas scheme was inapposite did not mean plaintiffs were freed from having to show that the failure to accommodate was “in regard to job application procedures, . . . [or] other terms, conditions, and privileges of employment.”