Disability Discrimination Claim Survives Summary Judgment Even Though the Employee Requested an Unreasonable Accommodation
The Americans with Disabilities Act and Chapter 21 of the Texas Labor Code prohibit disability discrimination and require an employer to provide reasonable accommodations to a disabled employee. If an employee requests a reasonable accommodation, the employer and an employee must engage in an “interactive process” to determine an acceptable accommodation. All too often, however, employers do not take the interactive process seriously.
This is illustrated by the recent decision from Judge Gray Miller of the Southern District of Texas in Cook v. Morgan Stanley Smith Barney, 2014 U.S. Dist. LEXIS 112681 (S.D. Tex. Aug. 14, 2014). Cook was a Compliance Officer for Morgan Stanley. She developed a heart condition and later developed anxiety issues. Morgan Stanley wanted to transfer her from the downtown office to the Galleria office, but her doctor limited her to a four hour work day at the main office. Later, Cook and her attorney requested an accommodation that included remaining at the downtown office with a change in supervisors.
Judge Miller found that the requested accommodation was unreasonable as a matter of law:
While a short location accommodation to alleviate stress may have been reasonable, . . . it was not reasonable to request that the employer allow Cook to work in her office of choice for an indefinite amount of time when her employer had already indicated a need for her to cross-train and improve communications with her supervisor by working at the Galleria office. Moreover, [the plaintiff’s attorney] clearly indicated in the April request, which was submitted by Cook, that Cook needed a change in supervisors. Generally, a request for a change in supervisors is not a reasonable request for accommodation, and there is no evidence that a change in supervisors would be a reasonable request in this case.
Nonetheless, Morgan Stanley lost the motion. Judge Miller found that, even though Cook failed to propose a reasonable accommodation, there was a fact issue as to whether Morgan Stanley had engaged in the interactive process. In particular, there was conflicting testimony from the attorneys for the parties about the nature of their discussions concerning accommodations:
While MSSB indicated that Cook could work part-time, thus making a significant concession and engaging in the interactive process, what happened next is unclear. MSSB's attorney, Nancy Patterson, states that Cook's attorney, Loyd, stated that "Cook did not wish to return to work in a role reporting to Ms. Champagne." Patterson asserts that she advised Loyd that all complex risk managers reported to Champagne and that Cook would need to "suggest another available position for which she was qualified" if she wanted a different supervisor. According to Patterson, Loyd never provided any suggestions. Loyd, on the other hand, states that he "never told Patterson or any other Morgan Stanley attorney, employee, or agent that Cook could not return to work, that Cook refused to work in a position reporting to Helen Champagne, that Cook resigned or was going to resign or that Cook would only return to work if she received a change in supervisor." Since the evidence of the extent to which the parties engaged in this interactive process conflicts, the court is unable to grant summary judgment at this time.
Judge Miller also denied summary judgment with respect to Cook’s retaliation claim.
There are several valuable lessons from this decision:
1. Employees will often make unreasonable opening demands in the accommodation process. This is natural – the employee will ask for what he or she wants or what he or she thinks would be ideal. However, this is not the end of the process. The employer must be prepared to make a counter-proposal, and the employee must be willing to compromise.
2. If the employer fails to make an objectively reasonable proposal of its own – which was apparently the situation in this case – the employer will find itself in the position of criticizing the employee’s proposals. That is not a strong position. Suppose, for example, that Morgan Stanley had made a written proposal to move Cook to a specific alternative position with an alternative supervisor. If Cook had declined the offer, Morgan Stanley might have won the case on summary judgment. Instead, Morgan Stanley will, at best, find itself in the position of arguing that Cook failed to identify an acceptable alternative position. Given that the law requires both parties to engage in an interactive process, the party who fails to make concrete proposals will always be at a disadvantage.
3. When attorneys get involved in this process, they must be prepared for the possibility that they will become witnesses. This means that the attorney may be subject to disqualification under the advocate-witness rule.
4. It is essential to document the offers and counter-offers. Otherwise, both sides are looking at a potential swearing match about what was offered and what was not offered.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes