Thursday, October 1, 2020

Judge Barrett and the case of the Zamboni driver with a disability

 Back with another employment law opinion from Judge Barrett, this time in Graham v. Arctic Zone Iceplex, LLC

Graham was a Zamboni driver at Arctic Zone who got injured on the job. He did not work for a few months, and when he returned, he had certain medical restrictions. Specifically, he could only work sitting down. So, the employer tried to accommodate him by assigning him to sharpen skates. The employee disagreed - and claimed that he could not do the job sitting down. Here's the kicker though - "he did not inform Arctic Zone of his belief that skate sharpening did not meet his restrictions." 

Ask anyone who has attended one of my classes or presentations on the ADA - do I hammer on the importance of the "interactive process?" I hammer on the importance of the interactive process. And, the interactive process (as the name would suggest) is a two way street requiring interaction from both sides:

This is a textbook example of an employee “not provid[ing] sufficient information to the employer to determine the necessary accommodations.” Id. (citations omitted). Because he failed to uphold his end of the interactive process, we affirm the district court’s grant of summary judgment on the accommodation issue.

The employee also eventually got fired. So, Judge Barrett next turned to the employer's proffered legitimate non-discriminatory reasons for the termination. A few notes from that portion of the analysis:

  • The employer was not required to provide prior written notice or discipline of the employee's "apparent bad attitude, inability to complete work on time, and insubordination."
  • Judge Barrett derided the employee's "gotcha" argument - The employer argued that the employee did not handle his "change of position" well but also argued that the employee's "position" never changed. The reality was that the employee's schedule changed, so the semantics of calling it a "change of position" in one context and maintaining that it was the same position but just at a different time later was not viewed as contradictory. 
  • Oh, the employee also caused a Zamboni accident that created a dangerous condition for customers at the ice rink. 
So, Judge Barrett affirmed summary judgment for the employer. 

Sidenote: I've read a few of Judge Barrett's opinions now, and she is an excellent writer. She clearly explains the relevant facts and analysis, and she presents them in an easily readable "plain English" style. She is not, however, "folksy" (contra Justice Gorsuch). 

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