Employee Turns Down Accommodation, Requests to be Discharged, and Sues.  Who Wins?

Employee accommodations can be tough.  It is often difficult to pin down exactly what accommodation will work for an employee with what feels like is a moving target for the employer.  Medical diagnoses frequently change in the middle of the interactive process, and doctors are often stuck in the middle of providing accurate medical information to an employer and getting the patient the help the patient thinks he or she needs.  All of this works together to lead to one thing: a lawsuit.

Such was the case in Rose v. Costco Wholesale Corporation, where the plaintiff originally reported issues meeting the lifting requirements of her position as a warehouse receiving manager due to fibromyalgia and issues with depression and anxiety.  The plaintiff took medical leave in summer 2019, and extended the leave several times.  She returned to work full time in November 2019, but with extensive permanent restrictions on the work she could perform, including lifting no more than 30 pounds, not wearing steel-toed boots, and sitting for 10 minutes every hour while changing positions every 30 minutes.  Importantly, she was able to work four full days with those restrictions, after which she was informed that Costco would be performing a job-assessment meeting to discuss her restrictions.

The plaintiff’s restrictions limited her ability to use a forklift, and in a warehouse, one is frequently using forklifts.  Therefore, Costco informed her she would no longer be able to work in her current position, and offered her a temporary transitional duty as a front-end supervisor, which was work within her medical restrictions.  The plaintiff declined this offer.

Based on her limitations, Costco determined the plaintiff would never be able to return to her receiving manager position.  Costco then began providing the plaintiff with a weekly listing of job openings across the metro area that fit within her medical restrictions.  Several of the jobs provided fit within the plaintiff’s list of jobs she was willing to perform.  Costco then offered the plaintiff one of the jobs she stated she was willing to perform that fit within her restrictions.  The plaintiff declined the position, “asked Costco to proceed with separating her employment” and sued for disability discrimination.  You can probably tell which direction this decision is going right now.

The plaintiff sued under the theory that Costco failed to reasonably accommodate her medical restrictions by not offering another employee to assist her in her lifting duties.  The Court previously denied Costco summary judgment on the lifting issue, finding that there were genuine issues of material fact as to whether Rose’s successful performance of receiving-manager duties for four days despite her lifting restrictions “belied Costco’s argument that occasional lifting more than 40 pounds is an essential function of the receiving manager job.”

It was proven at trial, however, based on the plaintiff’s own testimony, that lifting was a big part of her job, lifting assistance was not always readily available for employees, and that during her four-day return to duty, she had not lifted anything.

As Judge Magnuson stated in the decision, courts “do not ‘sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination.’”  And as there was an “utter lack of discriminatory intent” in the creation of the plaintiff’s job description, which included the 50-pound lifting requirement, no discriminatory intent could be found.

With that, the judge held that “no reasonable jury could conclude from the evidence that Rose had established the elements of her claim,” and granted the employer a judgment as a matter of law.

This could be seen as a big win for employers, but one can see the amount of work the employer had to do in order to get this judgment.  Months of job assessments, job searches and leave, along with the preparation for a trial led up to the point that a judge determined there was no way the plaintiff could prove her case.  However, this does show that if the necessary steps of the employee accommodation process are taken, the employer can feel confident in its case if it ultimately gets to trial.

The plaintiff in this case did her employer a huge favor by turning down work for which she was qualified.  But it was the work done on the front end of the accommodation process that ultimately won the day for the employer.  If you, or your organization, need assistance with your employee accommodation process or working through employee accommodations, contact Wiley Reber Law, for experience that works.