An employer is not liable for failure to accommodate if the employee is responsible for the breakdown of the interactive process.

In December of 2022, the Eleventh Circuit examined an ADA claim filed by Charles Cooke against his former employer, Carpenter Technology Corporation. The district court originally granted summary judgment in favor of the former employer, which the Eleventh Circuit ultimately reversed. In 2015, Cooke began working for Carpenter Technology as a Nondestructive Testing Unit employee. Such employees worked on a “swing shift” schedule, rotating between day and night shifts.

Cooke was diagnosed with severe depression, anorexia and anxiety. In 2017, Cooke informed his supervisor that he was experiencing suicidal thoughts and starving himself. Per suggestions from his supervisor and human resources, Cooke sought treatment and applied for FMLA leave. After FMLA leave, Cooke was placed on short term disability leave. After a few months, Cooke contacted Carpenter Technology about returning to work. He provided two medical notes which stated that he could return to work but should have a consistent work schedule. Carpenter Technology responded that he could be on a consistent day or night shift for only 30 days with no possibility of reevaluation thereafter, and because he had exhausted all of his leave options, Cooke would thereafter either have to resume a swing shift schedule, quit or be terminated. Cooke declined the offer to follow his medical providers’ recommendations. He continued reaching out to Carpenter Technology, which refused to consider a permanent consistent schedule. Thereafter, Cooke resigned and found a new job.

The district court found that Cooke could not prevail on his ADA discrimination claim because Cooke had caused the breakdown in the required interactive process. To establish a prima facie case of discrimination under the ADA, an employee must show that he or she: (1) has a disability; (2) is a qualified individual; and (3) was unlawfully subject to discrimination because of his or her disability. Further, to trigger an employer’s duty to provide a reasonable accommodation, the employee must (1) make a specific demand for an accommodation and (2) demonstrate that such accommodation is reasonable. After the employee provides this information, the employer must initiate an informal, interactive process with the employee to discuss the employee’s specific limitations, explore potential accommodations, and select the most appropriate accommodation for both the employer and the employee. An employer is not liable for failure to accommodate if the employee is responsible for the breakdown of the interactive process.

Here, the district court struck Cooke’s affidavit opposing Carpenter Technology’s motion for summary judgment as a sham, which was improper because to strike an affidavit as a sham, the new testimony would need to be in “irreconcilable conflict” with the prior testimony. In his affidavit, Cooke offered clarifying testimony regarding leave he was not asked about during his deposition. The Eleventh Circuit ruled that the district court erred in not considering Cooke’s affidavit and reversed summary judgment in favor of Carpenter Technology. 

This decision is a reminder that when defending ADA and other employment claims, there are shifts between the employee/employer regarding making a prima facie case, demand of a reasonable accommodation, and the commencement/continuation of the interactive process. Employers having communications in writing would be most helpful to defend against such claims.
 

_{Case Law Alerts, 1st Quarter, January 2023 is prepared by Marshall Dennehey to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2032 Marshall Dennehey, all rights reserved. This article may not be reprinted without the express written permission of our firm.}