Reasonable accommodation under the Americans With Disabilities Act
Lovejoy-Wilson v NOCO Motor Fuel, CA2, 263 F.3d 208
The Lovejoy-Wilson case points out that offering a disabled individual one reasonable accommodation will not necessarily excuse the employer from considering subsequent requests for an alternative accommodation submitted by the individual.
Diane Lovejoy-Wilson suffers from epilepsy and experiences seizures of varying seriousness on practically a daily basis. Because of her epilepsy and New York State's requirement that an epileptic be seizure-free for two years in order to obtain a driver's license, Lovejoy-Wilson is unable to drive a motor vehicle.
Lovejoy-Wilson was told that she could not be considered for promotion to an assistant manager position because she did not drive and driving to a bank to make deposits was an essential duty of an assistant manager. However, she was later offered a promotion to the position of assistant manager at a store at which an armored car service picked up the store's receipts and transported them to the bank for deposit.
Rejecting this assignment because of its undesirable location, Lovejoy-Wilson told NOCO that she felt that she was being discriminated against because of her disability in violation of the ADA and suggested six possible accommodations of her disability that would, in her view, be reasonable. In her words, any one of the following would provide a reasonable accommodation of her disability:
1. Another manager can pick her up on the way to the bank.
2. She could hire a service to drive her when necessary for her job.
3. NOCO could hire a service to drive disabled employees in management and supervisory positions when necessary.
4. She could hire an individual to drive her when necessary for the job.
5. NOCO could hire an individual to drive disabled management and supervisory employees when necessary.
6. Where practical and possible, she could use public transportation when travel is necessary for her job.
NOCO's president, Robert Newman, rejected all of these suggestions. He wrote Lovejoy-Wilson: The ADA is not for intimidating employers to change non-discriminatory operational policies. Given our past record of accommodating employees with disabilities, I find your position weak at best.
When a promotion failed to materialize Lovejoy-Wilson submitted her resignation effective September 15, 1994 and commenced working for another employer the next day. She also filed a complaint with EEOC alleging that NOCO had discriminated against her because of her disability.
Eventually Lovejoy-Wilson obtained a “right-to-sue letter” and brought an action in federal district court against NOCO for unlawful discrimination. The district court granted NOCO's motion for summary judgment, concluding that while Lovejoy-Wilson was a qualified individual with a disability, she had not been constructively discharged.
Both Lovejoy-Wilson and NOCO appealed the district court's judgment. Lovejoy-Wilson challenged the district court's dismissal of her accommodation, promotion, and retaliation claims while NOCO contested the district court's determination that Lovejoy-Wilson is a qualified individual with a disability under the ADA.
The Second Circuit said that the ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
Further, said the court, under ADA, the term “discriminate” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee....”
The district court's dismissal of Lovejoy-Wilson's complaint, said the Circuit Court of Appeals, was based on its conclusion that Lovejoy-Wilson's desire to become an assistant manager at a particular location was based on personal convenience, not her disability, and that NOCO accommodated her disability by promoting her to assistant manager at a store with armored car service in May 1994.
The court held that in so doing, the district court misinterpreted and misapplied the requirements underlying providing a reasonable accommodation under the ADA and failed to consider the facts in the light most favorable to Lovejoy-Wilson.
Rejecting NOCO's argument that by offering Lovejoy-Wilson a promotion at an armored car store was, as a matter of law, a reasonable accommodation, the Second Circuit cited its ruling in Wernick v Federal Reserve Bank, 91 F.3d 379. In Wernick the court said that in requiring reasonable accommodation, “Congress intended simply that disabled persons have the same opportunities available to them as are available to nondisabled persons.”
As to a disabled individual requesting placement at a particular location, the court commented that: If an employer offers its workforce an opportunity for promotion to a higher level of employment without honoring any requests for a particular location (or shift), then an ADA plaintiff cannot complain of assignment to a less favorable location. However, if the employer permits its workers to apply for promotion at a preferred location (or shift), then a disabled person must have the same opportunity.
The decision states that “the evidence thus far developed in this case indicates that NOCO's employees could apply for promotion at a particular store.” Accordingly, if its employees could apply for promotion to assistant manager at stores of their choice, then Lovejoy-Wilson had the right to seek the assistant manager job at the store she desired free from discrimination.
The Circuit Court concluded that in making the determination whether or not NOCO failed to accommodate Lovejoy-Wilson's disability, the reason for her desire for that particular job -- personal convenience or otherwise -- does not matter. Lovejoy-Wilson was entitled to a reasonable accommodation, if one was available, to permit her to compete with nondisabled applicants on an equal basis to become assistant manager at the store of her choice.
A rational jury could find on the basis of the evidence adduced that such a reasonable accommodation was available but not offered to her.
Finally, said the court, there is more than enough evidence to support a jury finding that “NOCO flatly refused to afford the plaintiff the reasonable accommodation to which she was entitled.” After sustaining portions of the lower court's decision, the matter was remanded for further action in the district court.