Employer’s Accommodation Duty: Stay in Touch and Do the Right Thing

  • Jul 2, 2019
  • ADA
  • Laura I. Bernstein

An employer could not give a disabled employee her job back but they did the best they could.  The court said that was good enough.

Sharonia Barton worked as a dental hygienist at Unity Health System’s St. Mary’s campus in Rochester, New York. Upon returning from leave after carpal tunnel surgery, she had a new officer manager (Laurel Tschetter) and a new co-worker (Patrizia Farsace).

Barton alleged that Farsace made several offensive comments to her regarding her race (African American).  She complained to Tschetter who promised to “handle it” but according to Barton, nothing was actually done, prompting her to make additional complaints.

I Need to Leave

Sometime later, Tschetter conducted Barton’s performance evaluation which was generally positive but noted Barton’s tendency toward defensiveness, inflexibility and critical comments about the physicians at the clinic.  Barton was upset over what she perceived as false criticisms in the review.  She therefore applied for and received a medical leave of absence for work-related stress.

While on leave, Barton met with a Human Resources representative regarding her concerns about discrimination. She then met with Unity’s Senior Director for Practice Management, who suggested that they meet together with Tschetter to help the two of them get their working relationship back on track. However, that meeting never took place because Barton extended her medical leave of absence.

Because of the uncertainty of Barton’s return, the clinic did not replace her and tried to meet scheduling and patient care needs with existing staff.  However, when they were overwhelmed with an additional 300 patients after another area clinic closed, they hired a new full time hygienist to fill Barton’s position.  Barton was informed by letter that she would remain on a leave and should stay in contact with Unity so they could work collaboratively on her return to active duty.

I’ll Come Back to Work But Not With Them

Approximately nine months after beginning her leave, Barton submitted a note from her doctor indicating that she was prepared to return to work.  However, the note suggested that Barton not be returned to work with Farsace or be supervised by Tschetter.  Unity looked for open positions at their other clinic locations but found nothing.  They did, however, offer Barton the opportunity to take a vacant dental medical secretary position.  This would get Barton back to active duty without having to work with Farsace or Tschetter, and would give Barton the opportunity to consider and bid on other openings at Unity whenever they arose.

Barton declined and insisted that Tschetter and Farsace be terminated or relocated so that she could return to her original job.  Unity refused this request and with no other openings to offer Barton, they terminated her employment.  She then sued for race and disability discrimination under federal and state law. The lower court dismissed the case and Barton appealed to the Second Circuit Court of Appeals.

The Second Circuit affirmed the lower court ruling, dispensing first with the race discrimination claim by noting that while Barton tried to show that Tschetter was biased against her, there was no evidence that Tschetter was actually involved in the termination decision.

On the disability discrimination issue, the appeals court explained that Barton could not establish that a reasonable accommodation existed that would have allowed her to perform the essential functions of her job. For one thing, Barton only was willing to accept one form of accommodation – transfer to a dental hygienist position at another Unity location so she did not have to work with Tschetter and Farsace – yet was unable to prove that any such vacancies existed when she was ready to return.

You Could Have Reassigned Me Even Though I Wasn’t Working

Barton argued that two vacancies did come up while she was on leave and she could have been transferred to one of them.  The court disagreed, explaining that Barton never updated Unity on her condition and therefore, the employer could not have known when Barton could return or whether she might have restrictions that would require accommodation.  As such, the accommodation that Barton sought in this regard was not reasonable.

The court noted that Unity at all times was prepared to fulfill their obligation to engage in an interactive process but Barton offered no opportunity for further review because she failed to remain in contact during her leave.  Then, when she did seek to return, Unity did the best they could by reviewing vacancies and offering Barton a good job and the chance to review and seek other vacancies as they occurred. The court concluded, “In the circumstances, it appears that Unity made a good faith effort to accommodate Barton. The law requires no more.”

Bottom Line

This case is a textbook example of how employers should approach the interactive process with an employee on a medical leave. The employer encouraged Barton to stay in touch even after they filled her job and then worked diligently with her to find her a suitable job.  When there was no opening equivalent to her former position, they did the next best thing by offering a job that would get her back to work and back into the work environment.  The fact that Barton demanded a different accommodation which was not feasible did not change the fact that Unity made a good faith effort to accommodate Barton.

Interestingly, the appeals court did not comment on Barton’s insistence that she be returned to her original job and that her supervisor and co-worker be reassigned.  It can only be assumed that they found that request so unreasonable as to be unworthy of attention.  We agree.