Blind Dairy Queen Employee Given “Exclusive” Job Was Reasonably Accommodated

Garrett Wozniak
Garrett Wozniak
06/06/2014

In a recent opinion, the Seventh Circuit reminded employers and employees that, under the Americans with Disabilities Act (ADA), qualified individuals with a disability are only entitled to a “reasonable” accommodation – they do not get to pick the accommodation. Bunn v. Khoury Enters., Inc., No. 13-2292 (7th Cir. May 28, 2014).

Joshua Bunn was hired in September 2010 to work as an hourly employee at a franchised Dairy Queen store in Indiana. Typically, hourly employees rotated between various “duty stations.” These employees would alternate between preparing ice cream treats, making grilled food, taking orders, and maintaining the dining room, among other duties.

Bunn, who is legally blind, was first assigned to the station where ice cream treats are prepared. Bunn, however, could not perform many of the duties of this station without an accommodation because he could not read the ingredient labels or monitors displaying orders. Given Bunn’s inability to perform these duties, the store manager trained Bunn for the “Expo” position. Expos delivered food to dine-in customers and maintained the dining area. Bunn performed these duties with minimal accommodation. After learning that Bunn could perform the Expo duties, he was assigned exclusively to the position. No other hourly employee was exclusively assigned to a certain station. Although he was not rotating from station to station (as other employees did), Bunn remained a full-time employee.

In his first three months with Dairy Queen, Bunn was repeatedly asked to refrain from using his cell phone while working. Then, in November 2010 the store’s night manager again asked Bunn to put his cell phone away during his shift. Bunn refused, gave the night manager an attitude, and shoved a trash can in her direction. He was suspended for ten days.

Following his suspension, Bunn’s hours decreased. In December, he worked a total of 23.41 hours. The minimal hours resulted from Bunn’s request for seven days off, the store being closed for the holidays and closures due to inclement weather. Further, the store’s sales were typically lower during winter months, which reduced the store’s staffing needs.

Bunn resigned on February 1, 2011, filed a charge of discrimination, and sued the franchisee for failing to accommodate his disability and disparate treatment in violation of the Americans with Disabilities Act (ADA). After a federal district court granted judgment in favor of the employer, Bunn appealed. The Seventh Circuit affirmed the lower court’s decision, reasoning that the employer provided a reasonable accommodation and that there was insufficient evidence to support Bunn’s disparate treatment claim.

In its affirmation, the Seventh Circuit recounted the reasonable accommodation requirements of the ADA. Reasonable accommodation includes “[m]odification or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable [a qualified] individual with a disability . . . to perform the essential functions of that position.” This includes restructuring a job.

In this case, once the store’s management learned that Bunn could not perform the duties of every station on the hourly employee rotation, management worked with Bunn to determine what he could do. As a result, Bunn was assigned exclusively to the Expo station, an accommodation which allowed Bunn to “enjoy equal employment opportunities” and continue his full-time employment. Even though Bunn wanted a different accommodation, the store did all that was required. As the court explained, “it is not sufficient for [an employee] to show that [an employer] failed to engage in an interactive process” to support a failure to accommodate claim. Bunn was provided a reasonable accommodation, and that was sufficient for his claim to fail.

Bunn’s disparate treatment claim failed because there was no evidence that other employees were permitted to talk on their cell phones during a shift. Further, the only evidence Bunn submitted was the manager’s refusal to discuss other accommodations. This was not enough – the store accommodated Bunn and the manager’s refusing to consider alternatives was not evidence of discrimination. Indeed, “it is not evidence of discrimination when a manager tells an employee, ‘Leave the managing to me.’”

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