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No disability claim for UPS sorter who had lifting restrictions removed, voluntarily ended interactive process

By Lorene D. Park, J.D.

Affirming summary judgment against an ADA failure-to-accommodate claim by a UPS employee who sought damages for the interactive process period during which she was off work, the Sixth Circuit agreed with a lower court that UPS had no legal obligation to put her back in a position that violated her lifting restrictions on the day she returned, and it had the discretion to instead provide an accommodation identified through the ADA interactive process. Because she voluntarily abandoned that interactive process and had her restriction removed, UPS was not liable for failing to provide a reasonable accommodation (Brumley v. United Parcel Service, November 30, 2018, McKeague, D.).

The UPS employee worked as a “sorter,” sorting mail at a Tennessee warehouse in preparation for delivery. As part of her duties, she did a “local sort,” taking small packages of 10 pounds or less from a conveyer belt and putting them in slots by destination. Bags that were filled in a “local sort” usually weighed 20 to 50 pounds and occasionally up to 70 pounds, and these would be lifted by the sorter onto another belt for delivery. The employee claimed she never lifted a full 70 pounds but admitted she knew her job might require that weight and the job description said as much. She also worked as a temporary cover driver, delivering packages.

Back injury. In December 2015, the employee injured her back while unloading heavy packages from a delivery truck. She received workers’ compensation, and in January 2016, she and UPS agreed that she would perform safety inspections of trucks in a 30-day temporary alternative work (TAW) agreement while she recovered. At the end of the TAW period, she went on temporary disability status through July 2016.

Lifting restrictions. The employee returned on July 29, providing two doctor’s notes that included permanent lifting restrictions of 30 pounds and stating that she could return to local sort but no driving. Her supervisor refused to let her return to work because both of her positions, sorter and driver, required lifting over 30 pounds.

Interactive process. The employee filed grievances with the union, complaining she was improperly denied the right to work with permanent restrictions despite providing a doctor’s note. Though the record was unclear, the employer apparently construed this as a request for accommodation because it sent her a letter on August 18 stating that it had initiated the ADA interactive process and requesting two medical forms, one filled out by her and one by her doctor. She didn’t respond so the employer sent follow-up letters and she faxed both forms on September 14.

Employee has restrictions removed. An HR manager then scheduled a meeting with the employee for October 11 (the earliest date both of their schedules would allow). At the meeting the HR manager explained that UPS would review the employee’s restrictions and try to find a position she could fill. In response, however, the employee stated that she wanted to voluntarily discontinue the ADA interactive process and return to the doctor to have her lifting restrictions removed. She did as much on October 27 and returned to work a few days later.

Prior proceedings. The employee then filed suit alleging violations of the ADA, FMLA, and state law. She sought lost wages and employment benefits for the limited period during which she was home from work during the interactive process. The district court granted summary judgment for UPS, and the employee appealed as to the ADA failure-to-accommodate claim.

UPS could choose interactive process over immediate return. Affirming, the appeals court agreed with the district court that the employee could not show UPS was unwilling to accommodate her restrictions and that she voluntarily abandoned the interactive process. It rejected her assertion that UPS should have let her return to local sort, explaining that the “ADA does not obligate employers to make on-the-spot accommodations of the employee’s choosing.” Rather, an employer must engage in an interactive process to identify the employee’s precise limitations and potential reasonable accommodations that might overcome those. Thus, UPS had no legal obligation to put the employee back in local sort on the very day she returned, and it had discretion to provide an accommodation identified in the interactive process. If she voluntarily abandoned that interactive process, UPS was not liable for failing to provide a reasonable accommodation.

Employee voluntarily abandoned interactive process. Also rejected was the employee’s argument that she didn’t voluntarily abandon the interactive process but was coerced to do so by a manager, who sent her home when learning of her permanent restrictions. Her own testimony contradicted that assertion because she admitted that what the manager actually said was that there were supposed to be work accommodations for permanent restrictions. Also, she admitted she was told the purpose of the interactive process was to allow UPS to review her restrictions and find a position and she could have proceeded along with the ADA process had she not chosen to have her restrictions removed instead. Because there was no triable issue on the voluntariness of her decision, she failed to establish a prima facie failure-to-accommodate case.

Second injury was not new evidence supporting Rule 59 motion. The employee also claimed the lower court erred in denying her Rule 59 motion based on newly discovered evidence from a second work-related injury that happened while this suit was pending. She obtained a doctor’s release allowing her to return with a temporary lifting restriction. According to the employee, the fact that UPS let her return with that restriction proved it previously discriminated by requiring an interactive process. Affirming, the appeals court found no abuse of discretion in the lower court finding her evidence irrelevant because it involved a temporary lifting restriction whereas her first injury resulted in a permanent restriction.