The Americans with Disabilities Act (ADA) is clear: it is crucial for employers to timely and thoroughly explore avenues of reasonable accommodation (that do not create an undue hardship) for employees with disabilities. This is not a one and done thing; an employer needs to be fully engaged in the interactive process and keep a good record of what it has done to meet its obligations. The failure to do so may result in an employee getting their “decade in court.”
Such is the case in Dressel v. Safeway Inc., 2021 U.S. Dist. LEXIS 105426 (D. Md. June 4, 2021), a case that is now already one half decade old. On June 4, 2021, Judge Hollander denied the employer’s motion for summary judgment, sending the matter to trial.
Dressel worked first as a barista at the Safeway in Towson. She had moved to the Deli and was making sandwiches when, in February 2016, she was in a car accident and injured her knees. She returned to work, but was soon tasked with preparing rotisserie chickens, which required her to lift 50 pounds on a regular basis. She found that this sort of work was not good on her knees.
Dressel claimed that she tried to talk to supervisors but was told one was “too busy” and there was apparently no response from the other. There was a series of doctor visits, some with conflicting diagnoses, contact with Safeway HR discussing the accommodation process, and a less than clear note back from a health care provider suggesting that she could not lift more than 20 pounds, with (possibly) no bending and squatting. This all continued over the course of a year without Dressel returning to work. Much of it was poorly documented.
Eventually, Dressel was offered a position as a barista, but there was no documentation of a written offer by Safeway or why that position was chosen for her. She rejected it, claiming that the demands of the job were beyond her physical abilities. Dressel suggested she could be a pharmacy technician, and there was another series of back-and-forth with her doctor over whether she could do that job. As the court noted it was then “unclear what, if any, developments took place during the five months that followed.”
In October 2017, Dressel’s doctor stated that her continuing knee pain was likely permanent. In December, Safeway offered her a “leave of absence” as a reasonable accommodation. Judge Hollander noted “Of course, by that point plaintiff had not actually worked a shift at Safeway in a year and a half.” Nor did she work one after that time. Safeway fired her in September 2018.
Dressel filed a charge with the EEOC, which found probable cause to believe discrimination occurred two weeks before she was fired. A couple of months later, in November 2018, Safeway offered her the pharmacy technician job. Dressel declined.
With this messy and prolonged factual background, as well as a dearth of contemporaneous records, Judge Hollander found sufficient disputes of material fact to deny Safeway’s motion for summary judgment. While Dressel’s rejection of the tech job in November 2018 precluded recovery after that time, whether she could have performed those duties when she first proposed taking the job, or whether some of the job requirements could have been modified to enable her to do them, which some deposition testimony by Safeway’s HR representative suggested might be the case.
So, this is not a win for either side. As the court noted: “Five years have passed since the interactive process began. Plaintiff twice rejected offers to transfer to other positions. And, since she ceased working at Safeway during 2016, it appears that plaintiff has not attempted to procure other gainful employment. Nevertheless, based on the submissions, defendant is not entitled to summary judgment.” And, unless the matter settles now, a jury will decide who does win.
** This article was drafted by Luca Cellucci, an intern at Kollman & Saucier this Summer.