A federal appeals court in Maine has upheld the dismissal of a lawsuit filed by a department store clerk with type 1 diabetes who quit because she feared her erratic work schedule could actually kill her.
This is yet another example of how difficult it is for disabled employees to prevail in a lawsuit filed under the Americans with Disabilities Act.
Kohl’s Department Store adopted a new schedule in 2010 that required Pamela Manning to work so-called swing shifts where a night shift is followed by an early shift the next day. Manning told Kohl’s the erratic schedule was endangering her health. At Kohl’s request, Manning submitted a letter from her endocrinologist stating that Manning’s health was suffering and she needed a predictable day shift to better manage the disease.
When Kohl’s refused Manning’s request for a steady and fixed shift, Manning walked away from the full-time job that she had held for approximately four years. The U.S. Equal Opportunity Commission filed a lawsuit against Kohl’s for violating its duty under the Americans with Disabilities Act for failing to provide Manning with reasonable accommodations so she could continue to work
In a split decision, a three-judge panel of the U.S. Court of Appeals for the First Circuit in Maine acknowledged Kohl’s refusal to provide Manning with a set shift but said it could not “ignore” the fact that Kohl’s had offered to discuss “alternative reasonable accommodations.” The court notes that its record is devoid of any “facts” regarding other accommodation Kohl’s was prepared to offer but blames this on the EEOC for telling Manning not to continue discussions with Kohl’s.
The EEOC claimed that Kohl’s effort consisted of disingenuous “empty gestures” and the dissent accused Kohl’s of engaging in a “negotiating tactic that is unfair to disabled employees who reasonably believe that they confront imminent serious harm if an accommodation is not provided.”
In a meeting with store officials, Manning offered to work a set day or mid-day shift, even on weekends. After Kohl’s rejected her offer, Manning told them she had no choice but to quit because she would go into ketoacidosis or a coma if she continued working unpredictable hours. As Manning was cleaning out her locker, a store official asked her to consider undefined alternative accommodations. Ten days later, a store official telephoned Manning and suggested she consider alternative accommodations for part-time and full-time work. However, the official said she would have consult with Kohl’s corporate office about any specifics. Kohl’s terminated Manning’s employment a week later
The majority said Kohl’s had made an “earnest attempt” to discuss other potential accommodations with Manning and that Manning had failed her duty to engage in good faith discussions with Kohl’s.
“In sum,” the majority concludes, “when an employer initiates an interactive dialogue in good faith with an employee for the purpose of discussing potential reasonable accommodations for the employee’s disability, the employee must engage in a good-faith effort to work out potential solutions with the employer prior to seeking judicial redress. Manning did not do so in this case …”
The case is EEOC v. Kohl’s Department Store No. 14-1268 (Dec. 19, 2014).