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Failure to Follow ADA’s Interactive Process not Independent Violation


By Lee Williams

The employee’s condition and request
A dispatcher for a transportation company began having attendance problems shortly after becoming dizzy in her home and falling.  While being treated in the emergency room, the emergency physician informed the dispatcher her scans showed signs of multiple sclerosis requiring investigation by a specialist.  The next available appointment with the specialist was approximately five months after the dispatcher’s trip to the emergency room.

The transportation company’s policy provided an employee who amassed eight absences while working for the company had committed a terminable offense.  The transportation company also implemented a federally required Family and Medical Leave Act (FMLA) policy; however, the dispatcher did not qualify for such leave because she had not been with the company for more than a year.  The dispatcher had two prior absences unrelated to her MS diagnosis.  Following her episode and trip to the hospital, the dispatcher began missing significant amounts of time at work and was eventually transferred to a part time position.  Shortly after transferring positions, the dispatcher again missed work –her eighth absence – and was put on suspension.  
During her suspension, the dispatcher requested a 30-day leave from work pursuant to the transportation company’s FMLA policy, which request the company denied.  Following her suspension, the dispatcher returned to work and was terminated based on the transportation company’s attendance policy.  The dispatcher then sued the transportation company for violation of the ADA.  After the district court ruled in favor of the company, the dispatcher appealed to the Seventh Circuit Court of Appeals.

Non-engagement in ADA process not controlling
The Seventh Circuit held the dispatcher had not provided sufficient proof she would have been able to continue performing the essential functions of her job following her diagnosis and the use of prescription medication.  In fact, the evidence the dispatcher produced showed she took another job shortly after her termination from the transportation company and continued to have attendance problems during her short tenure there.

The Seventh Circuit then addressed the dispatcher’s claim the transportation company did not engage in the flexible and interactive process of finding a reasonable accommodation for her as required by the ADA.  Although the Seventh Circuit agreed with the dispatcher the company’s response to the dispatcher was not appropriate under the ADA, the court found such a failure is not actionable in and of itself under the ADA.  According to the Seventh Circuit, failing to engage in the accommodation process can only be actionable when combined with evidence the employee would be able to perform her essential job functions with an accommodation.  Because the dispatcher had provided no such evidence, the Seventh Circuit determined the transportation company’s failure to properly engage in the interactive process was not relevant.

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