- A food service staffing agency did not fail to accommodate an employee who misused equipment to aid her walking instead of using the reasonable accommodation granted to her, the 3rd U.S. Circuit Court of Appeals has ruled (Tielle v. The Nutrition Group, No. 19-2873 (3rd Cir. May 7, 2020)).
- Suzanne Tielle, who was the head cook for a school district, claimed her former employer failed to accommodate her disability. She also said she was fired because of her knee injury and retaliated against for requesting accommodations. Tielle was allowed to use a cane after she was observed leaning on a rolling food cart to help her walk. She was told not to use a cart to support her weight because it was unsafe and could tip over, causing injury to herself and others. Her co-workers and supervisors continued to observe Tielle using a food cart for support and the employer said that continuing to do so would result in the termination of her employment.
- The employer fired her and she sued. A district court awarded summary judgment to the staffing agency. On appeal, the 3rd Circuit agreed, stating that no jury could find that the staffing group failed to reasonably accommodate her disability. Tielle asked to use a cane and she was allowed to so, the court said, adding that there was no evidence that she also asked to use a food cart to help her with walking. The court also pointed out that two years passed after Tielle's request for accommodation before she was fired. And the staffing group knew about her disability seven years prior to her termination. The timing of the events, the court noted, does not point to discrimination or retaliation.
While the Americans with Disabilities Act generally obligates employers to provide workers with reasonable accommodations, it does not entitle workers to their preferred obligation. In a separate opinion, the 3rd Circuit recently ruled that the University of Pennsylvania provided a worker with "every accommodation she requested," despite her preference for one of the two alternate arrangements suggested by her doctor.
In rejecting Tielle's claim of retaliation, the court cited a case rejecting the claim that a gap of nearly three months between protected activity and an adverse employment action was "unusually suggestive" of retaliation. A short period of time between the protected activity and an adverse employment action can create an inference of retaliation, however. Earlier this year, the court noted that a fitness instructor's claim of retaliation was supported by the fact that she was fired "only hours” after she informed leadership at the fitness club of her U.S. Equal Employment Opportunity Commission (EEOC) complaint.
It follows that employers should be careful when an adverse employment action closely follows an employee participating in a protected activity such as filing a complaint with the EEOC, unless they can document a legitimate, non-discriminatory reason for the action, sources previously told HR Dive.
To reduce the risk of legal action, experts say HR can ensure supervisors are trained on compliance with local, state and federal laws on bias and retaliation. A robust reporting system can also help, experts have said.