In a 2-1 decision, the First Circuit Court of Appeals affirmed the decision of a federal judge in Maine to dismiss a claim of disability discrimination brought by a diabetic department store employee because the employee quit in the middle of negotiating a reasonable accommodation. The decision sparked a strong dissent by Judge William Kayatta, who asserted that the decision demanded "too much resilience and persistence" by a disabled employee and improperly took away the fact-finding responsibility from the jury. For an understanding of the decision and the basis of the dissent, a brief description of the facts is required.
The employee, Pamela Manning, was a Type I diabetic employed at Kohl's department store. To treat her diabetics and prevent complications, she needed to self-administer five insulin injections each day timed with her food intake. Prior to requesting her accommodation, she had been required to work an unpredictable schedule as other employees were. This required some night shifts, some day shifts, and sometimes required her to close the store the night before working an early morning shift -- a so-called "swing shift." She obtained a note from her doctor stating that the unpredictable schedule made it difficult for her to monitor her blood sugar and that a predictable schedule would allow her to smooth her blood sugar levels and prevent serious complications. Manning brought the note to her supervisor, who spoke with human resources and was then told that the company could not promise a predictable work schedule, but it could promise no more "swing shifts." The supervisor then met with Manning and told her that the store could not provide her requested accommodation because it would need to offer the same flexibility to all employees. Manning then left the meeting and said she had no choice but to quit. Her supervisor chased after her and asked her not to quite and to keep talking, but did not offer any specific accommodation.
The Court affirmed the decision of the District of Maine, which granted summary judgment to Kohl's on the failure to accommodate claim and a related claim of constructive discharge. The Court, in an opinion written by Judge Juan Torruella, found that Manning was at fault for quitting in the middle of the negotiation regarding her requested accommodation, and that no reasonable jury could find that Kohl's failed to engage in a good faith interactive process to determine a reasonable accommodation for Manning, as required by the American with Disabilities Act. (Perhaps surprisingly, Judge O. Rogeriee Thompson, an Obama appointee, joined the Reagan appointee's decision). Judge Kayatta's dissent argued that the evidence could easily allow a jury to conclude that Kohl's negotiated in bad faith, as evidenced by its failure to offer any accommodation at all even though its human resources department had authorized the supervisor to offer Manning the accommodation of no "swing shifts".
In unusually strong terms, Kayatta closed his dissent by stating: "As far as I can tell, this is the first time that any circuit court has held that an employer can reject an accommodation request backed up by a doctor's note, refuse to offer an accommodation that it has determined in can make, falsely claim that any accommodation must be offered to all workers whether disabled or not, and then declare the employee's ADA rights forfeited when she gives up." If Judge Kayatta is correct, then the Manning decision is a troubling development in the area of ADA case law. The only saving grace is that the majority decision expressly stated that its holding was limited to the unique facts of the case, although such a sentiment is often expressed in controversial decisions. Only future courts can determine whether the limitation holds true.
