Dive Brief:
- A district court wrongly granted summary judgment to Orkin in a former pest control technician’s failure-to-accommodate claim because a reasonable jury could have found that the plaintiff was entitled to reassignment, the 4th U.S. Circuit Court of Appeals said Wednesday.
- The plaintiff in Dieng v. Orkin, LLC injured his knee on the job. His doctor advised him that he would be physically unable to perform the job duties of a pest control technician but that he could perform a less physically demanding role. He relayed this to Orkin, but a manager told the plaintiff that no light-duty positions were available. The plaintiff allegedly received no further follow up and remained on unpaid leave for 16 months before resigning.
- Orkin won summary judgment on the plaintiff’s disability discrimination and failure-to-accommodate claims, but the 4th Circuit reversed on the latter. It held the plaintiff showed that he could perform alternate light-duty roles and that Orkin’s accommodation of unpaid leave — which the court likened to “professional purgatory” — was not a reasonable one. Orkin also may have failed to engage in a good-faith, interactive process, the court found.
Dive Insight:
Authorities including the U.S. Equal Employment Opportunity Commission have historically viewed reassignment as an accommodation of last resort under the ADA, only required when no other effective accommodations would enable performance of essential functions or when all such accommodations would pose undue hardship.
To qualify for reassignment, the employee must be qualified for the new position, EEOC has said in its enforcement guidance, and there is no obligation for employers to assist individuals in becoming qualified. Generally, the new position must be a vacant one that is equivalent in terms of pay, status or other relevant factors — unless there exists no equivalent vacant position, in which case the employee must be reassigned to a vacant lower-level position where available.
In Dieng, the district court initially granted summary judgment because no reasonable accommodation would have allowed the plaintiff to perform the essential functions of the pest control technician position. But that court failed to consider whether he could have performed the essential functions of a lower position that he desired, which is a separate analysis under the ADA, the 4th Circuit noted.
The plaintiff identified two roles, a customer service position and a sales representative position, that he could perform even with his disability. Per the 4th Circuit, the record supported the plaintiff’s assertions, and his former manager openly acknowledged that the plaintiff could have at least performed the customer service role. A factual dispute existed as to his fitness for the sales role, but the court nonetheless wrote that the plaintiff had met his burden under this portion of the ADA.
Orkin countered that it was not obliged to provide the plaintiff’s requested accommodation and that his placement on indefinite unpaid leave was reasonable given an ongoing dispute over his workers’ compensation claims, but the 4th Circuit disagreed.
The court also faulted Orkin for not engaging in an interactive process, namely by not responding to the plaintiff’s repeated requests to discuss the possibility of light-duty reassignment. The plaintiff’s manager noted that he “never received a response” from the company’s HR department about his request and “never followed up.”
“On this record, a reasonable jury could readily conclude that Orkin ignored [the plaintiff’s] repeated requests to return to work in a light-duty position rather than engaging in the interactive process,” the 4th Circuit said.
Orkin declined to comment.
The decision is interesting given past court rulings involving both reassignment and unpaid leave under the ADA.
In 2022, the 8th Circuit held that one employee’s request for reassignment would have been too difficult and time consuming to grant, indicating the potential limits federal courts may be willing to tolerate on a case-by-case basis. Meanwhile, a 2021 decision of the 4th Circuit called reassignment the “last among equals” of ADA accommodations, noting that employers may not unilaterally reassign employees if another reasonable accommodation exists.
Courts also have taken different positions on the reasonableness of unpaid leave as an accommodation. In May, the 6th Circuit held that a school district’s decision to place a teacher on unpaid leave rather than paid sick leave so that she could attend guide dog training did not violate the ADA. In that case, the court said unpaid leave was a suitable accommodation, even if it was not the plaintiff’s preferred accommodation.
