As cases under the amended Americans with Disabilities Act begin to reach the courts, less emphasis will be placed on whether an employee is “disabled” and a greater emphasis will be placed on the questions of whether an employee is a “qualified individual” under the act and whether an employee could be reasonably accommodated. These issues were at the forefront of the U.S. District Court for the Eastern District of Pennsylvania’s Aug. 16 decision in Reilly v. Upper Darby Township .

Difficulty Walking Up Stairs

According to the court, Shamus Reilly was a 10-year veteran of the Upper Darby police force when, in 2007, his fellow officers noticed that he was having difficulty climbing stairs. When he met with his supervisors in June 2007, he disclosed that he suffered from a slowly progressive neurological condition that caused weakness in his legs. Reilly’s supervisors told him that he was being removed from patrol duty and that he would be placed in an “alternate duty” position in the control room.

Shortly thereafter, Reilly underwent a fitness for duty examination after which the examining physician reported that Reilly could not work on patrol duty, but could continue to work in the “light duty” position in the control room. Reilly subsequently sent the police department a list of alternative jobs that he believed he could perform — but received no response. In October 2007, Reilly was informed that he was being terminated “because of his inability to perform the duties of a police officer,” according to the opinion. While Reilly’s union filed a grievance on his behalf shortly after he was advised of his termination, Reilly did not file a discrimination charge with the EEOC, claiming a failure to provide a reasonable accommodation, until January 2009 — well outside the 300-day limitations period.

Limitations Period Tolled

The court first addressed the township’s argument that Reilly’s ADA claim was untimely. Reilly countered that he was unaware of his rights under the ADA and that the limitations period should have been tolled by the department’s alleged failure to post the required notice advising him of his rights. The evidence from the department was that the notice was definitely posted in 2004, but no administrator could testify that the notice was posted at the time Reilly was experiencing his “issues.” As such, the court found there to be genuine issue of fact as to whether the limitations period should have been tolled, until Reilly acquired “actual knowledge of his rights under the statute.”

The court then addressed the substance of Reilly’s claim that he had been denied a reasonable accommodation under the act.

Initially, the court considered whether Reilly was disabled (i.e. substantially limited in his ability to perform a class of jobs) under the pre-amendment ADA and found there to be a genuine issue of fact on this issue.

Qualified individual

The court then addressed whether Reilly was able to establish that he was a “qualified individual” — that is, someone who “with or without reasonable accommodation can perform the essential functions of the employment position that [he/she] holds or desires.” On this question, the court took into consideration that under the ADA, a reasonable accommodation includes “reassignment to a vacant position.” As such, under the 3rd U.S. Circuit Court of Appeals’ 2004 decision in Williams v. Philadelphia Housing Authority , the court found that Reilly is a qualified individual “even if he is no longer able to perform the job of patrol officer, as long as he is able to perform another job available in the department.” Because there was no genuine dispute that Reilly was capable of continuing his work in the control room, the court found there to be issue of fact as to whether he was a “qualified” individual under the act.

Interactive Process Required

Finally, Upper Darby argued that it did not violate any duty that it may have had to provide a reasonable accommodation for Reilly. The court’s consideration of this argument began, like most accommodation cases, by considering whether the township had effectively engaged in the interactive process.

The court first faulted the township for failing to respond to Reilly’s letter in which he suggested alternative positions (and, instead, terminated his employment). The township argued that it had no obligation to “interact” with Reilly because the jobs he listed were not “available.” This included the control room position, which Upper Darby contended was a form of “light duty.” While the court acknowledged that the township had no duty to “create” a permanent position for Reilly, it found there to be genuine issue of fact as to whether assigning him to the control room would have been reasonable accommodation.

Specifically, the township argued that the control room was staffed by civilians, who were paid significantly less than the unionized officers. The court found that whether an additional cost associated with an accommodation is unreasonable is an issue of fact for the jury. Reilly also suggested that he would have been willing to accept either a night shift position in the control room (historically staffed by officers pulled from patrol) or a civilian position (that would nave required him to change his place of residence and accept a pay decrease).

The court went back to the interactive process and reiterated the “importance of communication and cooperation between employers and employees in seeking reasonable accommodations,” as first articulated by the 3rd Circuit in its 1998 ruling in Deane v. Pocono Medical Center .

The case again highlights the need for employers to consider with an open mind how qualified employees can be accommodated under the ADA. In this case, for example, because the township never proposed to Reilly that he work either the night shift or that he accept a civilian position (accompanied by a significant pay decrease), he was able to argue that he might have accepted these (likely unpalatable) options, thereby defeating summary judgment.

The case also notes the importance for counsel to remind their clients to check their employment postings on a regular basis to ensure that they remain current and complete.

Sid Steinberg is a partner in Post & Schell’s business law and litigation department. He concentrates his national litigation and consulting practice in the field of employment and employee relations law. Steinberg has lectured extensively on all
aspects of employment law, including Title VII, the FMLA and the ADA