Under the Americans with Disabilities Act, an employer is only required to provide a reasonable accommodation, not the accommodation preferred by the employee. This is even true when the employee seeks to work with an accommodation, but the employer reasonably believes that a leave of absence is best.
This scenario was most recently addressed by the U.S. District Court for the Eastern District of Pennsylvania in Diaz v. Philadelphia , 2012 US Dist. Lexis 66326 (May 10, 2012) (Surrick, J.).
Alleged Harassment leads to psychological issues
According to the opinion, Elisa Diaz joined the Philadelphia Police Department in June 2003. In spring 2004, she allegedly began to experience “constant” sexual harassment from her immediate supervisor, Sergeant Randy Davis. Diaz alleged Davis became a “constant and unwelcome presence” in Diaz’s life both at, and outside of, work. Diaz was eventually prescribed medications for both physical and psychological conditions attributed to her work environment.
Diaz filed an EEO complaint with the department, and in late 2004 or early 2005 she was transferred from Davis’s district to a different district. Davis was suspended and demoted by the department, the opinion said. This did not, however, end Diaz’s medical conditions, as her internist continued to prescribe her anti-anxiety and sleep medication. Nevertheless, Diaz received “excellent” performance evaluations in 2006 and 2007. She also was transferred to an elite tactical unit within the police department.
Knee injury in new job
While working for this elite unit in February 2007, Diaz suffered a severe knee injury that resulted in her being out of work until July 2008. In early 2008, the opinion said, Diaz learned that an arbitrator had reversed Davis’s suspension and demotion — which Diaz claimed increased her depression and anxiety. This, in turn, resulted in Diaz being prescribed a new round of medications.
When Diaz returned to work, she was initially assigned to patrol duty but was soon transferred to an “inside” position — working in the Closed Circuit Television Unit monitoring prisoners — as a “reasonable accommodation” for her anxiety. In this position, she claimed that she was harassed and retaliated against by Corporal Tracey Davis (no relation to Sergeant Davis) because, according to Diaz, Corporal Davis had been involved with her previous discrimination complaint against Sergeant Davis, according to the opinion. Although Diaz’s evaluation on the CCTV Unit was generally positive, she was found to need improvement in “‘attendance and dependability,’” the court said.
‘Accommodated’ position ends
According to the opinion, Diaz’s supervisors decided to return her to a patrol unit in March 2009. Diaz advised them that her medications would make her a “sub-optimal” patrol officer. Diaz claimed that she wanted to remain in the CCTV Unit until she “got better.” The department sent Diaz for a fitness-for-duty examination, which included an evaluation by a psychiatrist for her post-traumatic stress disorder. There was dispute as to what occurred at the psychiatric evaluation, but no report was submitted. Diaz’s final day of work was in mid-March. She used various leaves to extend her pay through June 2009, including the Family and Medical Leave Act. She then went on unpaid medical leave to December 2009, according to the opinion. Because Diaz failed to submit the paperwork necessary to extend her leave, she was terminated from her employment in January 2010. Her ADA lawsuit, focusing primarily on the department’s alleged failure to provide a reasonable accommodation, followed shortly thereafter. After discovery closed, the department moved for summary judgment.
Leave as an accommodation
The parties agreed that Diaz could not function as a patrol officer. Diaz argued, however, that the department failed to accommodate her disability when it forced her to take an unpaid leave of absence, rather than allowing her to continue working in the CCTV Unit.
The court noted that Diaz had received numerous accommodations throughout the course of her employment, including an extended leave of absence to return from her leg injury, the original assignment to the CCTV Unit and another extended leave through December 2009.
The department argued, and the court agreed, that even the CCTV job required Diaz to function as a “police officer,” which meant that she was likely to “encounter extremely stressful and dangerous situations.” As such, it was critical that Diaz’s mental-health issues be resolved. When they were not (consistent with her own physician’s assessment), the CCTV job was no longer a reasonable accommodation. An extended leave, rather than reassignment, was the accommodation of choice.
Diaz was terminated when she failed to extend her leave of absence — not as the result of her disability. As such, any assertion that she was improving and could have returned to work at some point in the future was outside of the department’s consideration, since there was no paperwork to support this “conjecture.”
‘Dangerous’ position considered
There is much to be taken away from this case. First, the fact that Diaz’s job as a police officer involved a high degree of stress and danger was a strong consideration both from the department and the court. This same analysis (and the need for assurance that the employee is psychologically capable of performing the duties of the position) could translate to other positions, such as in health care or in manufacturing settings, where attentiveness and possible danger to the individual or the public would militate against any type of accommodation that would compromise safety.
However, the department argued that placing Diaz in any police position would have been an “undue hardship.” The court did not address the hardship argument directly, but this may have gone further than necessary, as the law requires that an employee prove that an accommodation is “reasonable.” An employer may be taking on more of a summary judgment burden than necessary by attempting to prove undue hardship — which is the employer’s burden of proof — as opposed to demonstrating (a) that the employee is qualified for the position and (b) that the accommodation is reasonable, both of which are the employee’s burden.
Finally, it is significant that the court found that the goal of the unpaid leave was to “enable the employee to perform [her] essential job functions in the near future.” Because Diaz did not submit the proper forms to extend her leave, the court was not required to address the question of how long the department (or any employer) would be required to wait for the employee to improve to the point that he or she could perform the job in question. •
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.