What qualifies as a ‘request for accommodation’ under the ADA?
According to the Equal Employment Opportunity Commission (EEOC), “Title I of the Americans with Disabilities Act of 1990 [ADA] . . . requires an employer to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment, unless to do so would cause undue hardship.” Although that statement may sound simple, it’s loaded with terms and concepts that keep conscientious employers on their toes and asking questions.
One question that has arisen fairly frequently is, “How must an employee request an accommodation?” The short answer is that employees don’t have to use any magic language. As long as an employee has made it clear in some way that he wants or needs assistance, he has requested a reasonable accommodation. Things like asking for “cooperation” in connection with a surgical procedure or reading a doctor’s note to a supervisor may be requests for accommodation.
Muddled tale of injuries and missing doctor’s form
Eugene Foster worked as a long-wall maintenance supervisor at Mountain Coal’s West Elk Mine. While he was working on February 5, 2008, he felt something pop in his neck. The next day, he went to the emergency room, where he received a return-to-work notice excusing him from work until February 8. Because he had scheduled a week off starting February 8 and was due to undergo a hernia operation on February 15, he missed work from February 6 to March 28.
On February 10, Foster met with Ed Langrand, Mountain Coal’s manager of HR, about his neck injury. Two things happened during that meeting:
(1) Langrand suggested that Foster meet with Dr. Thomas Dwyer, an orthopedic specialist.
(2) Foster gave Langrand the ER doctor’s return-to-work notice. Langrand rejected that form and asked Foster to have a doctor fill out a Mountain Coal form.
Foster took the Mountain Coal form and tried but was unable to get the ER doctor to fill it out. He told Langrand of the difficulty he was having, and the HR manager told him to have his primary care doctor, Dr. Dory Funk, fill out the form.
Funk was on vacation at the time, so Foster left the form with Funk’s receptionist, who said that she would “see about getting it filled out when Dr. Funk returned.” Foster testified that a week later, he received a phone call from Funk’s office telling him that the form was ready to be picked up. He said he picked up the completed form and took it straight to the mine’s office. He claimed that after waiting an hour and a half for someone at the mine’s office to accept the form, he left it with the office receptionist, the only employee in the office at the mine.
Although his testimony is muddled, Foster testified that several days later, he learned that the form had gone missing. As a result, he said, on March 17, he went back to Funk, who completed a second form dated March 18. Mountain Coal acknowledged it received that form.
As Langrand had suggested, Foster met with Dwyer on March 10 and March 24. During those visits, Dwyer ordered an MRI but made no final treatment determination. Before making a decision, Dwyer wanted to obtain results from a previous MRI as well as notes and information from another doctor.
On April 3, the mine’s general manager, Jim Miller, met with Foster and Jon Wilson, an HR employee, about the situation. During the meeting, Mountain Coal suspended Foster. Mountain Coal’s and Foster’s descriptions of the April 3 meeting differ dramatically.
According to Foster, Miller explained that he was being suspended because Funk had never personally examined his neck injury before filling out the March 18 return-to-work form. According to Mountain Coal, it suspended Foster for lying about receiving and delivering the first return-to-work form to the mine’s receptionist. Foster testified that after being told about the suspension, he informed Miller and Wilson about his upcoming hernia surgery and said that he “needed a little cooperation.”
On April 4, Foster met again with Dwyer, who had received and reviewed the previous MRI and the other doctor’s notes by then. Dwyer didn’t recommend surgery, but his notes indicated that he thought it would be best if Foster considered different work activities.
On April 9, Foster met with Funk, who determined that he was disabled. On April 11, Funk wrote a letter stating that Foster was disabled and he shouldn’t return to his usual occupation until his medical problems were resolved.
Mountain Coal decided on April 9 to terminate Foster’s employment. Its stated reason for the termination was that he had lied about obtaining the first return-to-work form. Langrand testified that Miller called Foster on April 9 to tell him he was terminated, but Mountain Coal had no record of the call and Foster didn’t specifically recollect it.
Although Foster and Mountain Coal disagreed on the exact course of events, Foster informed Mountain Coal at some point on April 11 of Funk’s determination that he was disabled. Foster claimed that he called and read Funk’s letter to his direct supervisor on that date. On April 14, he received a letter terminating his employment effective April 9.
Foster sued Mountain Coal under the ADA for retaliating against him for requesting an accommodation. The trial court ruled against him without holding a trial, stating there was no evidence that reasonably supported his claims. Foster appealed to the U.S. 10th Circuit Court of Appeals (whose rulings apply to all Utah employers).
10th Circuit: There’s enough evidence to require a trial
Although the 10th Circuit reversed the trial court’s ruling, it didn’t decide in Foster’s favor. Rather, the court sent the matter back to the trial court for further consideration and a trial. According to the 10th Circuit, there was evidence that reasonably supported Foster’s claims.
The ADA forbids an employer from discriminating against someone who seeks a reasonable accommodation for a disability. Because Foster didn’t have explicit evidence of discrimination, his claim could succeed only if he could (1) make a facially plausible showing of disability discrimination and (2) show that any nondiscriminatory reason that Mountain Coal might provide as justification for its action was actually a pretext to cover illegal discrimination.
To make a plausible showing of disability discrimination, Foster had to show that (1) he engaged in a protected activity, (2) he suffered an adverse employment action, either concurrently or after he engaged in the protected activity, and (3) there was a causal relationship between the protected activity and the adverse action.
Asking for a reasonable accommodation is a protected activity if it is “sufficiently direct and specific, giving notice that [the employee] needs a special accommodation.” According to the 10th Circuit, a reasonable juror could determine that Foster asked for an accommodation at the April 3 meeting when he asked for cooperation with regard to his hernia operation. Similarly, his April 11 phone call, during which he read Funk’s letter to his supervisor, could also be seen as a request for an accommodation.
There was no dispute that getting terminated is an adverse employment action. And the 10th Circuit also found that a reasonable jury could determine that because Foster was terminated so soon after the April 3 meeting and the April 11 phone call, Mountain Coal’s decision was a result of those interactions.
Mountain Coal tried to defuse Foster’s argument by arguing that it decided to terminate him because he had lied about providing the earlier company return-to-work form. Although lying about something like that would be a legitimate basis for firing an employee, the 10th Circuit held that Foster had provided evidence that Mountain Coal’s justification was merely a pretext to excuse illegal discrimination, which warranted a trial.
Specifically, Langrand and Miller testified that Mountain Coal terminated Foster because he had lied about providing the first return-to-work form, but another Mountain Coal representative testified that the company terminated him because his return-to-work form “didn’t have the right date for his release and stuff on it.” A reasonable jury could view that inconsistent testimony as evidence that Mountain Coal concocted a pretext to hide illegal discrimination. Foster v. Mountain Coal Co., LLC, 2016 WL 3997425 (10th Cir.).
Although Foster convinced the 10th Circuit to overturn the dismissal of his case without a trial, the court of appeals didn’t decide the case in his favor. All it did was rule that the trial court should have held a trial. Thus, the 10th Circuit’s decision sends the case back to the trial court, where a trial now must be held if the parties don’t otherwise settle. In the end, Mountain Coal may still prevail. Even though the case’s ultimate outcome is unknown, employers can learn several important lessons.
First, keep good records of disciplinary communications and health-related issues. Mountain Coal didn’t have any records showing that Miller actually called Foster on April 9 to inform him of his termination. While that may not have played a large role in the 10th Circuit’s decision, the numerous conflicting descriptions of what happened in this case might not have occurred if Mountain Coal had kept clear contemporaneous records of its disciplinary actions against Foster.
Second, and most important, this decision shows that employees don’t have to use any magic language when they ask for a reasonable accommodation. In fact, an employee doesn’t even have to use the words “reasonable accommodation.” He merely has to make a statement that indicates he wants assistance for a disability. Thus, Foster’s statement that he needed a little cooperation in connection with his hernia operation was enough, as was reading his doctor’s statement about his disability to his supervisor.
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