Reassignment — The Reasonable Accommodation Of Last Resort

Garrett Wozniak
Garrett Wozniak
12/03/2020

Discrimination under the American with Disabilities Act (ADA) includes failing to provide a reasonable accommodation, absent undue hardship, to a qualified individual with a disability.  A recent Fourth Circuit decision provides useful guidance for employers on the interactive process and reassignment as a reasonable accommodation.  Elledge v. Lowe’s Home Centers, LLC et. al., No. 19-1069 (4th Cir. Nov. 18, 2020)

Charles Elledge was a long-time employee of Lowe’s Home Centers, LLC who alleged that his former employer violated the ADA by refusing to reassign him to a vacant position following knee surgery.  Elledge, the Company’s Market Director of Stores, had knee surgery in December 2014.  After his surgery, however, he had difficulty performing some of the essential functions of his job, including walking the floors and driving to the various stores in his portfolio.  The store visits in particular were critical to Elledge’s job performance — he typically visited two stores each day and worked 50-60 hours per week.  The driving from store to store and walking in each facility continued to cause him significant pain post-surgery.

Elledge’s physician restricted him from walking (no more than four hours per day) and said that Elledge should work no more than eight hours daily.  Lowe’s agreed to the accommodation and offered Elledge a motorized scooter as an additional accommodation.  Elledge declined the scooter and did not always adhere to his doctor’s restrictions.  He even created his own accommodation by having others drive him from store to store so that he could stretch his knee in the back seat.  After accommodating Elledge for some time, Lowe’s learned that Elledge’s restrictions, per his doctor, would be permanent.

Upon learning that Elledge’s restrictions were likely permanent, Company representatives engaged in further interactive process — they had multiple conversations with Elledge “to chart a mutually agreeable course forward,” including considering other opportunities at Lowe’s.  Elledge did not want to move into a lower paying position and instead applied for two vacant director-level positions.  The Company hired other employees for the vacancies pursuant to its policies regarding succession planning and “best-qualified hiring.”  Elledge ultimately accepted early retirement with a severance package before filing suit under the ADA and the Age Discrimination in Employment Act.

The trial court granted summary judgment in Lowe’s favor because Elledge did not show that he was a qualified individual — he could not perform the essential functions of the jobs in question with or without reasonable accommodation.

The essential functions of Elledge’s job included:  (1) standing or walking in excess of 4 hours each day; (2) travelling to all supervised stores; and (3) working in excess of 8 hour each day.  Mobility was essential to the job.

Under the ADA, reasonable accommodation “may include job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies . . . and other similar accommodations . . . .”  42 U.S.C. § 12111(9).

Affirming summary judgment in Lowe’s favor, the Fourth Circuit recounted that reassignment is an accommodation of last resort.  Reassignment is an option only if the employee is qualified for the alternate position.  The Court explained that:  “Lowe’s acted reasonably to accommodate Elledge’s transition from a debilitating surgery back to full employment.  Lowe’s extended the aforementioned accommodations on a temporary basis, in anticipation of Elledge making a full recovery.  When sixty days after Elledge returned to work, his condition had not improved and his doctor’s restrictions had not loosened, Lowe’s did not give up on Elledge—it granted him another temporary extension of the same accommodations.”  After thoroughly engaging in the interactive process and learning that Elledge’s restrictions would continue, “Lowe’ could not have been expected to extend such a dramatic reduction in its work requirement indefinitely.”

The Company, said the Fourth Circuit, acted lawfully in following its established policies when selecting other employees instead of Elledge for the two vacant positions.  While the Fourth Circuit has made clear that reassignment is a unique accommodation and that “bumping” of other employees counter to long-term workplace expectations is not required, other federal appellate courts have held that reassignment is an appropriate reasonable accommodation, even where reassignment would bump other more qualified candidates.  Be sure to check the law in your jurisdiction if confronted with such an issue.

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