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If Interactive Process Fails, Makes Sure It’s Not Because of You

Posted Tuesday, July 2, 2019 6:28 am

The U.S. District Court for the District of Hawaii recently found in favor of an employer on multiple claims of discrimination and violations of the Americans with Disabilities Act (“ADA”).  Cooper v. Hawaii (June 20, 2019).

Background

Mario Cooper was a delinquent tax collector with the Hawaii Department of Taxation (“HDT”) when he developed elbow tendinitis.  When he requested an ergonomic keyboard and chair, HDT instructed him to make a formal request.  When he submitted his formal request, however, he only sought a separate office space.  HDT denied the request as not medically related to his tendinitis, but informed Cooper they would continue to communicate with him about other possible accommodations.

While Cooper was on a medical leave of absence, he submitted a medical slip indicating that he could return to work on May 23, 2017.  Cooper, however, failed to return to work on May 23, and did not show up to work or advise HDT why he was absent for the next five weeks.

HDT discharged Cooper based on a provision in a collective bargaining agreement that allowed HDT to consider an employee to have resigned if the employee fails to show up to work for 15 days after the conclusion of a leave period.  Cooper challenged the termination on multiple grounds, including violation of the ADA and discrimination based on disability, race, and sex.

Not “Qualified Individual” Due to Failure to Inform Employer of Absence

The ADA only protects “qualified individuals” who can perform the essential functions of the job with or without reasonable accommodation.  The Court noted that even if on-site attendance was not mandatory, informing HDT of when he was going to miss work is a “‘common sense’ essential job requirement.”  According to the Court, even if Cooper had a medical basis to stay home from work, “communicating one’s absence from work to an employer is unquestionably a fundamental job duty.”  The Court therefore concluded that Plaintiff was not able to perform an essential duty of his job and was not a qualified individual protected by the ADA.  The Court nevertheless addressed Cooper’s claims that HDT failed to provide him with reasonable accommodations.

Cooper Responsible for Breakdown of Interactive Process

Even though Cooper orally requested an ergonomic keyboard and chair, the Court did not fault HDT for not providing these accommodations.  Rather, the Court found Cooper responsible for the breakdown in the interactive process because he failed to include such accommodation requests in his formal written request and submitted no evidence of any specific ergonomic changes that would have helped. 

Cooper’s written request only sought private office space.  Although HDT advised him that private office space was not medically related to his elbow tendinitis, HDT continued to engage in the process by offering him to move to a better cubicle.  He rejected the offer, insisting on a private office without explaining how that would be a reasonable accommodation of tendinitis.  Again, the Court faulted Cooper for the breakdown in the interactive process, and dismissed his claims of failure to provide reasonable accommodations.

No Discrimination Where Termination Based on No-Call No-Show

Moreover, the Court found that Cooper missing work for over a month, during which time he failed to inform his employer of why he was missing work and how long he would be gone, constituted a legitimate, non-discriminatory reason for his termination.  Because Cooper failed to offer any evidence that his termination was based on his disability, race, or sex, the Court dismissed those claims.

Takeaways

Employers should be sure their managers are properly trained to engage in the interactive process, including seeking specificity in employees’ requests for reasonable accommodations.  If there is a breakdown in the interactive process, be sure it is not for lack of the company’s efforts.

To learn more about leave and schedule modifications under the ADA, watch this short episode of HEC TV.  For more information about the ADA and issues related to disability, visit HEC’s Disability resources page.

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