Sixth Circuit Holds that Failure to Accommodate Can Be Constructive Discharge

Late last week, the Sixth Circuit issued a decision in Talley v. Family Dollar Stores of Ohio, in which it reversed, in part, a grant of summary judgment in favor of the employer in an ADA case.

The plaintiff in that case, a cashier, could not stand for long periods of time because of arthritis, and requested to be able to use a stool to sit at her register when standing became too painful. There was conflicting evidence in the record about whether she had been allowed to do this in the past. In the instance at issue, the plaintiff had made verbal and written requests to be able to use a stool, but the employer denied those requests. Plaintiff did not report to work, as a result, and the employer terminated her for "job abandonment."

The Sixth Circuit found that there were disputes of material fact concerning whether the plaintiff was disabled from the major life activities of walking, standing, and lifting and concerning whether plaintiff could perform the job adequately with a stool, which might be a reasonable accommodation. The court further held that the plaintiff had presented enough evidence to support a jury finding that she suffered an adverse employment action in the form of a constructive discharge:

the plaintiff has produced sufficient evidence that may lead a jury to conclude that the defendants intended for Talley to resign and that it was foreseeable that she would when they (1) denied her use of the stool after years of being able to use it, (2) refused to read a doctor’s note that she delivered upon their request, (3) failed to organize a meeting to discuss the issue, and (4) failed to contact her regarding the status of the meeting or with other alternatives to resolve the issue. Consequently, there is a genuine issue of material fact regarding whether her working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.

As our sister circuit recognized in Johnson v. Shalala, “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge.” 991 F.2d 126, 132 (4th Cir. 1993). We emphasize that our holding today does not pave the way for an employee to assert a claim for constructive discharge every time an employer fails to accommodate her disability. But when an employee makes a repeated request for an accommodation and that request is both denied and no other reasonable alternative is offered, a jury may conclude that the employee’s resignation was both intended and foreseeable.

Finally, the court noted that a failure to engage in the interactive process required under the EEOC's regulations to determine whether there might be a reasonable accommodation may itself create some kind of liability.

Hat tip: Paul Secunda and BNA

MM