April 21st, 2017
In Bush v. Compass Group USA, Inc., the Sixth Circuit Court of Appeals (covering Ohio, Kentucky, Michigan, and Tennessee) recently affirmed summary judgment dismissing an employee’s disability discrimination claim. Donald Bush worked for the Compass Group as a chef manager for approximately two years. He supervised a staff of six cooks and provided food preparation and catering services. On May 17, 2012, Bush emailed upper management that he had been diagnosed with “severe cervical/thoracic spondylosis” and that he was trying to seek a transfer to a position “that is more manager / director than chef and has minimal caterings.” Thereafter, he applied for ten positions in the company, nine of which would have been promotions, and one which would have been a lateral move. Bush was rejected for each of these jobs because he was either unqualified or the position was never filled.
While Bush was applying for other positions, his physical condition deteriorated and his physician placed him on a ten pound lifting restriction. Bush told management that he could not perform his job as a chef manager. On September 13, 2012, Compass Group advertised for a new chef manager and intended to have Bush train the replacement while he looked for other work. On October 25, 2012, Bush had “a nervous breakdown” at the prospect of losing his job and took leave under the Family and Medical Leave Act. After he was released by his doctor to return to work, Compass Group terminated Bush’s employment.
One of the elements necessary to prove disability discrimination is that the employee is able to perform the essential functions of the job, with or without accommodation. This is where Bush’s claim failed. In addition to telling management that he could not perform his job, he had a ten pound lifting restriction. Bush testified that his job required him to lift cases of meat and fifty pound bags of potatoes and sugar. When asked if lifting heavy weights “was essential” to his job, he replied “Yes. Yes.” Ironically, the job description for the chef manager position does not include a requirement to lift fifty pounds. Rather, it requires only that “[t]he employee must frequently lift and/or move up to 10 pounds.” Under the ADA, a written job description is evidence of a position’s essential functions. Bush could have met the requirements stated in the written job description with his medical restrictions. Instead, Bush testified that the written job description did not accurately reflect his actual job duties. When asked about the ten pounds referenced in the written job description, Bush said he had to lift “quite a lot more than that.” Bush also said in his affidavit that his “actual job duties were different from those in the written description.” While a written job description is evidence of a job’s essential functions, it is only one of several factors courts consider. In light of Bush’s admissions regarding his “actual” job duties, the Sixth Circuit agreed with the District Court that he could not perform an essential function of his job, so that he could not establish a prima facie case of disability discrimination, and therefore, summary judgment was appropriate in favor of Compass Group.
The Sixth Circuit further held that “even if” Bush had established a prima facie case of disability discrimination, summary judgment would still be appropriate because the accommodations he requested were unreasonable. Bush proposed that Compass Group could have hired additional staff to perform the heavy lifting for him. However, the Sixth Circuit has held that a proposed accommodation requesting that an employer change an essential function of the position is per se unreasonable. Bush also proposed that he be transferred to one of the ten positions to which he applied. The Sixth Circuit held this was unreasonable as to nine of those positions because employers are not required to promote employees as a means of reasonable accommodation. As to the lateral position, Bush failed to comply with company policy by failing to notify his supervisor that he was requesting a transfer and employers need not waive legitimate non-discriminatory policies in order to provide an accommodation.
Bush also asserted that his termination was retaliation for using leave under the FMLA. The Court rejected this argument because the Compass Group was seeking a replacement for Bush before he took FMLA.
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