By: Claudia D. Orr
Recently, the United States Court of Appeals for the Sixth Circuit reversed the summary dismissal of a claim under the Americans with Disabilities Act against Remington Arms Company. Wait until you read what the court found to be a request for accommodation.
In Cady v Remington Arms Company, former employee Robert Cady had a history of back problems that began in 2000 when he bent over to tie his shoe. Following back surgery he was free of pain until 2007, when the reoccurrence of pain resulted in another back surgery in 2008. Following a brief period of restrictions, Cady experienced little pain and made no requests for light duty.
Cady began working for Remington’s Kentucky facility in 2012 as an engineer and was assigned to a team developing the R-51 handgun. From the beginning, Cady did not get along with his team members. In fact, while Cady was rated as a “valued team member” on his performance review, it noted that “his ‘response during points of contention bordered on personal confrontation.’” During a meeting in April 2013, Cady had a heated dispute with his supervisor concerning whether to fully disclose the prototype’s failures during a test shoot. Cady thought the test results should be fully disclosed while his supervisor was concerned that doing so might threaten the continuation of the program. Cady was thereafter reassigned.
By May 2013, Cady’s back pain was worsening. He went for an MRI and informed Remington’s Human Resources Manager of the test results. This was the first notice given to Remington about his back issues. Cady was prescribed pain medication, but surgery was not an option for his spinal stenosis and nerve compression because it might exacerbate the problem.
Remington’s Vice President tasked Cady with improving the St. Cloud, Minnesota facility’s production. However, upon arrival, Todd Mittelstaedt, the plant manager, informed Cady that the facility was understaffed and asked Cady to assemble work benches. Cady agreed, but said he expected other employees to help. Lee Vogel, the production manager was assigned to assist.
Cady provided the following additional “notice” about his back problems: (1) telling “Vogel that his medication made him sensitive to sunlight.” (2) telling Parker, one of Cady’s supervisors, that “he was concerned about his back…he felt he was hurting his back,” and (3) telling Mittelstaedt that “he had concerns about his back.” Parker also testified that Mittelstaedt told him Cady had explained that he had back surgery and had concerns about standing on concrete and that Mittelstaedt commented that “he didn’t need [Cady] there if [Cady] was going to not be able to perform the physical labor of building” the work stations.
Cady was told to return to Kentucky. When he arrived at work, Cady was discharged for performance issues.
The federal district court in Kentucky dismissed the case, but the appellate court reversed that decision, finding that Cady’s statements about his back concerns along with the information that had been given to the HR Manager were sufficient to put Remington on notice that Cady had a disability.
The appellate court also reversed the dismissal of the failure to accommodate claim. The court first cited prior case law that had held that an employee must affirmatively request an accommodation and that the employer is not required to speculate about the employee’s need for an accommodation. The court then focused on Cady’s comment to Mittelstaedt that he “was willing to continue building the stations, but that he would need to ‘mix it up’ and not work exclusively on the benches” was sufficient to request an accommodation.
Finally, with regard to whether Cady was discharged because of his disability, the appellate court reviewed Remington’s stated reason (poor performance, including his aggressive attitude and lack of professionalism) to determine if that could be a pretext for unlawful discrimination. “[P]retext is a commonsense inquiry: did the employer fire the employee for the stated reason or not?” Because the ratings on Cady’s performance reviews (conducted pre Minnesota trip) were all valued or highly valued and contained other favorable comments and there were no plans to fire Cady until the events in Minnesota, the court reversed the dismissal of the claim.
Disability issues are some of the most complex problems faced by employers. Who would think that “I need to mix it up” would be a request for accommodation? While the appellate court says the employee needs to make the request, it can be so subtle that it escapes attention. If you have a sticky situation involving an employee with a disability and need to discuss it with an attorney, always contact an experienced employment attorney, such as the author.
This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM). She can be reached at firstname.lastname@example.org or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.
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