Pitts v. Lindsey & Company Inc.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          J. LEON HOLMES, UNITED STATES DISTRICT JUDGE

         Lakin Pitts brought this action against her former employer, Lindsey & Company, Inc., for violations of the Family and Medical Leave Act, the Arkansas Minimum Wage Act, and the Americans with Disabilities Act. The parties settled the FMLA and AMWA claims. See Document #23. The Court denied Lindsey & Company's motion for summary judgment on Pitts's ADA claims. See Document #40. On March 25-27, 2019, the Court held a bench trial on the three remaining claims: a failure to accommodate Pitts's disability, discrimination by terminating Pitts's employment based on her disability, and retaliation by terminating Pitts's employment because she requested an accommodation for her disability.

         I. APPLICABLE LEGAL PRINCIPLES

         The ADA prohibits covered employers from, among other things, discriminating against a qualified individual on the basis of disability in regard to the discharge of employees, and in regard to other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). Prohibited discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5)(A). The ADA also prohibits retaliating against an employee who requests a reasonable accommodation for a disability. Scruggs v. Pulaski Cnty., Ark., 817 F.3d 1087, 1094 (8th Cir. 2016).

         Failure to Accommodate

         Employers must “make reasonable accommodations to allow disabled individuals to perform the essential functions of their positions.” Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (en banc) (citing 42 U.S.C. § 12111(8)-(9)); see also 42 U.S.C. § 12112(b)(5). In order to determine whether an accommodation is necessary, the employer and employee must engage in an interactive process. Peyton's v. Fred's Stores of Ark., Inc., 561 F.3d 900, 903 (8th Cir. 2009). The process must be initiated by the disabled employee, who must alert her employer to the need for an accommodation and provide relevant details of her disability. Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 906 (8th Cir. 2015). The duty to accommodate does not arise unless the employee requests an accommodation, but the employee need not use magic words to do so. Ballard v. Rubin, 284 F.3d 957, 960 (8th Cir. 2002); Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 952 n.5 (8th Cir. 1999). “The notice must merely make it clear to the employer that the employee wants assistance for his or her disability.” Fjellestad, 188 F.3d at 952 n.5.

         An employer need not accommodate a disability, however, unless the disabled individual requires an accommodation in order to perform the essential functions of the job. Brumfield v. City of Chicago, 735 F.3d 619, 632 (7th Cir. 2013). For example, where the employer did not provide a sign language interpreter for a deaf employee, the employer was not liable for a failure to accommodate because an interpreter was not required for the employee to perform the essential functions of his position. Kiel, 169 F.3d at 1134. The Eighth Circuit affirmed summary judgment for the employer on the failure to accommodate claim. Id. Thus, when an “employee's limitations do not affect her ability to perform [her job's] essential functions, the employer's duty to accommodate is not implicated.” Brumfield, 735 F.3d at 633; see also Morse v. Midwest Indep. Transmission Sys. Operator, Inc., 2013 WL 6502173 at *1 (D. Minn. Dec. 11, 2013) (“There is no evidence that Morse's Asperger's syndrome interfered with his ability to perform his job. . . In short, even if Morse were disabled, he proved that he did not need an accommodation in order to perform the essential functions of his job.”).

         The essential functions of a job are the “fundamental” job duties. Duello v. Buchanan Cnty. Bd. of Sup'rs, 628 F.3d 968, 972 (8th Cir. 2010). In determining whether a job duty is an essential function, considerations include written job descriptions, the amount of time spent on the job performing the function, and the consequences of not requiring the employee to perform the function. Id.

         Reasonable accommodations to allow disabled employees to perform the essential functions of their positions may include making existing facilities used by employees readily accessible to and usable by individuals with disabilities, job restructuring, acquisition or modification of equipment or devices, and other similar accommodations. 42 U.S.C. § 12111(9). If more than one accommodation would allow a disabled individual to perform the essential functions of the position, the employer has the ultimate discretion to choose between effective accommodations. Kiel, 169 F.3d at 1137 (citing 29 C.F.R. § 1630.9 (Appendix) (1998)). The employer may choose the less expensive accommodation or the accommodation that is easier for it to provide. Id. An accommodation “does not have to be the ‘best' accommodation possible, so long as it is sufficient to meet the job-related needs of the individual being accommodated.” 29 C.F.R. § 1630.9 (Appendix) (2016). A disabled employee, therefore, is not entitled to the accommodation of his or her choice. Minnihan v. Mediacom Commc'ns Corp., 779 F.3d 803, 813 (8th Cir. 2015). Whether an accommodation is reasonable is a question of fact. See E.E.O.C. v. Convergys Customer Mgmt. Grp., Inc., 491 F.3d 790, 796 (8th Cir. 2007).

         Disability Discrimination

         The ultimate question in a disability discrimination claim is whether a qualified individual suffered an adverse employment action on the basis of her disability. See Chalfant v. Titan Distribution, Inc., 475 F.3d 982, 988 (8th Cir. 2007); Otto v. City of Victoria, 685 F.3d 755, 758 (8th Cir. 2012) (citing U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)).

         It has long been the law in the Eighth Circuit that “[a]s long as an employee shows that his disability was a ‘motivating factor' in the challenged employment decision, he is entitled to some relief.” Belk v. Sw. Bell Telephone Co., 194 F.3d 946, 950 (8th Cir. 1999) (quoting Pedigo v. P.A.M. Transport, 60 F.3d 1300, 1301 (8th Cir. 1995) (hereinafter Pedigo I) (itself citing 42 U.S.C. § 2000e-2(m))); see also Oehmke v. Medtronic, Inc., 844 F.3d 748, 756 (8th Cir. 2016) (citing Pedigo I, 60 F.3d at1301).^[1]

         The Eighth Circuit has noted that a 2009 Supreme Court decision casts doubt on the motivating factor causation standard in ADA cases. See Oehmke, 844 F.3d at 757 n.6 (citing Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)). In Gross, the Supreme Court held that the Age Discrimination in Employment Act's prohibition on discrimination “because of” age requires ADEA claimants to prove but-for causation. Id. The Eighth Circuit has commented that Gross's reasoning could arguably extend to the “on the basis of” language in the ADA. Id.; see also Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012) (“We have our doubts about the vitality of the pre-Gross precedent. . . . We can reserve a decision on the meaning of ‘because of' in the ADA for a case in which the issue is briefed.”); Palmquist v. Shinseki, 808 F.Supp.2d 322 (D. Maine 2011) (collecting cases, extensively analyzing the issue, and ultimately holding that an ADA discrimination plaintiff must prove but-for causation to prevail).

         Gross did not construe the ADA, however, and neither Gross nor any subsequent Eighth Circuit case has overruled pre-Gross ADA precedent, which is still binding on this Court. In accordance with this precedent, the Court therefore applies the motivating factor standard in this ADA case: An employer has discriminated on the basis of an ...