Legal Updates


THE INTERACTIVE PROCESS UNDER THE ADA IS A TWO-WAY STREET

June 21, 2017

The 7th Circuit Court of Appeals recently issued a decision involving the interactive process for identifying reasonable accommodations under the Americans with Disabilities Act (ADA).  In a previous Legal Update, we described the interactive process in the context of a 7th Circuit decision finding that an employer (Peoria School District) had failed to fulfill its obligations under the ADA to engage in the interactive process.  By contrast, in the 7th Circuit’s recent decision, the Court held that it was the employee who failed to properly engage in the interactive process with her employer (Milwaukee Public Schools) to determine a reasonable accommodation.[1]  These decisions show that the interactive process is a two-way street.

Facts

The plaintiff was an assistant principal for Milwaukee Public Schools (MPS).  After the plaintiff notified MPS of severe arthritis in her knee, MPS changed the location of her work and modified her job responsibilities to excuse her from intervening in student fights.  The plaintiff later had surgery to replace her knee, but shortly thereafter reinjured her knee while intervening with an unruly student.  After that, the plaintiff’s doctor restricted her to sedentary work with no student interaction until further notice.

The plaintiff returned to work a few months later with a restriction that she not have contact with out-of-control children or potentially combative students.  However, a few months after that, the plaintiff’s doctor informed MPS of a “permanent” restriction that the plaintiff “should not be in the vicinity of potentially unruly students.” Consequently, the plaintiff could no longer continue in her position as an assistant principal, which included patrolling the hallways and regular contact with students.

A week later, MPS sent the plaintiff a list of eight (8) vacant positions, but noted that the plaintiff was not qualified for any of them due to her restriction.  The plaintiff expressed an interest in two (2) other positions, but MPS responded that those positions also included interaction with students.

After another surgery in late 2010, the plaintiff was cleared to return to work with restrictions to “avoid/no student discipline situations.”  MPS requested clarification on this restriction and multiple weeks went by with no response from the plaintiff.  Eventually, MPS received a response from the plaintiff’s doctor confirming that the plaintiff should not be “in the vicinity of potentially unruly students.”

The plaintiff later applied for two (2) positions but was not selected.  She met with MPS to discuss the reassignment process; however, MPS communicated to her that there were very few positions that did not involve interaction with possibly unruly students.  Additionally, in this same timeframe, the plaintiff was evaluated for disability benefits and received a permanent work restriction similar to the previous restriction.  Thereafter, the plaintiff and MPS had two (2) additional discussions regarding vacant positions for which the plaintiff was not qualified due to her restriction.

After two and a half years of medical leave, MPS informed the plaintiff that she had nearly exhausted her leave of absence.  The plaintiff’s doctor then requested a list of the essential functions of the assistant principal position.  MPS responded with a list and indicated that it also included “working in the vicinity of potentially unruly students.”  The plaintiff’s doctor responded that the plaintiff could work around students but should not be responsible for controlling them.  MPS again attempted to identify vacant positions, but the plaintiff was not qualified to perform any of them.  MPS then terminated the plaintiff’s employment because she could not perform the essential functions of any available position. 

Plaintiff’s Claim

The plaintiff filed suit against MPS under the ADA.  She claimed her disability never prevented interactions with students and that MPS failed to accommodate her disability.  She also claimed that MPS could have accommodated her by reinstating her position as assistant principal or by reassigning her to one of the vacant positions.  MPS responded that the plaintiff was not qualified to perform the essential functions of any of the positions, with the exception of the Title I Coordinator position.  However, with respect to the Title I Coordinator position, MPS would have been required to promote the plaintiff and she was not the most qualified candidate for the position.

Court’s Holding

The Court explained that “identifying reasonable accommodations for a disabled employee requires both employer and employee to engage in a flexible, interactive process.”[2]  However, when an employee fails to provide sufficient information to the employer to determine the necessary accommodations, the employer cannot be held liable for failing to accommodate the disabled employee.[3] 

In this case, the plaintiff had a broad restriction, as nearly all students have the potential to act unruly.  MPS communicated its understanding of this broad restriction on multiple occasions, but the plaintiff never challenged MPS’ understanding.  Indeed, MPS repeatedly sought clarification and either did not receive a response or was told the same restriction applied.  Even when the restrictions appeared to loosen, MPS sought clarification and was told the broad restriction still applied.  Therefore, to the extent that the plaintiff claimed her restrictions were less severe than what MPS believed, she “failed to hold up her end of the interactive process by clarifying the extent of her medical restrictions.”[4]  Furthermore, the Court rejected the plaintiff’s argument that being around potentially unruly students was not an essential function of her job.[5]   

Additionally, the Court explained that an employer is not required to accommodate an employee by promoting her to a higher position.[6]  In this case, the plaintiff asserted that the Title I Coordinator position was not actually a promotion.  However, the Court stated that “[w]hether a reassignment would be a promotion, demotion, or lateral transfer is not determined by the employee’s perceptions.”[7]  Here, such a reassignment would involve a $20,000.00 pay increase due to a pay grade change and because she would be working twelve months per year instead of ten, and substantially increased responsibilities.  Therefore, it would have constituted a promotion and MPS had no obligation to reassign the plaintiff to that position.

The Court concluded that this was an unusual case and its holding was correspondingly narrow.[8]  In particular, the undisputed facts showed that MPS acted on the basis of the doctor’s restrictions and that no reasonable accommodation of the plaintiff’s disability was possible. 

Conclusion

It is important to remember that both the employer and the employee must participate in the interactive process.  In this case, the employer complied with its obligations under the interactive process, including seeking clarification in the face of contradictory information.  Notably, this case also demonstrates that the interactive process often involves complicated issues such that it is important to maintain an open line of communication with the employee.

For questions regarding this article, please contact the author, Attorney Jenna E. Rousseau (email: jrousseau@strangpatteson.com; telephone: 844.833.0828 toll free), or your Strang, Patteson, Renning, Lewis & Lacy, s.c., attorney.

[1] Brown v. Milwaukee Bd. of Sch. Directors, 855 F.3d 818 (7th Cir. 2017).

[2] Id. at 824.

[3] Id.

[4] Id. at 826 (citation omitted). 

[5] Id. at 826-27.

[6] Id. at 827.

[7] Id. (citation omitted).

[8] Id. at 828.

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