The Americans with Disabilities Act (ADA) requires both a disabled employee and her employer to work interactively to identify reasonable accommodations for the disabled employee. The 7th U.S. Circuit Court of Appeals has underscored that requirement by dismissing the claims of an individual who, it found, failed to engage fully in the interactive process. Brown v. Milwaukee Board of School Directors, No. 16-1971, 7th Circuit, May 4, 2017.
Sherlyn Brown was an assistant principal with the Milwaukee Public Schools. Beginning in 2006, she experienced knee pain due to severe arthritis; she requested and was granted certain accommodations for her limitations. She was assisted in that process by James Gorton, who was an employment specialist with the Milwaukee Schools.
In 2009, shortly after returning to work from a knee surgery, Brown re-injured her knee while restraining an unruly student. Her doctor then imposed a blanket restriction to “sedentary work with no student interaction.” After a few months, Brown’s doctor modified the restriction, and provided clarification that Brown “should not be in the vicinity of potentially unruly students.” Gorton immediately informed Brown that Brown could not continue working as an assistant principal and that she would be on paid sick leave while he worked with her to find a suitable position.
Over the following two years, and through Brown’s additional surgery-related absences and returns, Gorton worked to place Brown into a suitable position. However, nearly every available position required being in the vicinity of “potentially unruly students” since, in reality, such a broad restriction could implicate nearly every student. During the times that Gorton spoke to Brown about the restriction, Brown did not dispute Gorton’s characterization of her restrictions, nor did she attempt to explain or revise his understanding.
Gorton’s attempts to speak with Brown about the restrictions were well documented. For example, during one 3-week period, he left two voicemails, sent a certified letter, and sent an e-mail saying he would “deactivate” his file if she failed to respond. She eventually replied.
After Brown had exhausted two and a half years of her allowable three-year medical leave, Gorton again contacted Brown’s doctor, providing a list of essential functions of Brown’s position and asking for an update on Brown’s restrictions. Brown’s doctor replied that Brown could return to work, so long as she was “not put in a position where she is responsible for monitoring and controlling students that may become uncontrollable.” He also confirmed that those restrictions were permanent.
After receiving that letter, Gorton was able to find four vacant lateral positions, but all of which included being around potentially “unruly” students or potentially monitoring or controlling those students, meaning that Brown medically could not hold the positions. Brown’s employment then was terminated.
Brown ultimately filed a lawsuit in federal court, claiming that the Milwaukee schools violated the ADA by failing to accommodate her disability and then by terminating her. The lower court granted summary judgment for Milwaukee Schools, and the Seventh Circuit affirmed that decision.
The appellate court’s dismissal was based on the undisputed fact that Brown essentially could not work around students – any of whom had the potential to become unruly. (According to the court, “[e]ssentially all students are potentially unruly.”)
Brown repeatedly presented Gorton with broad work restrictions with no effort to redefine, further explain, or otherwise delineate the restrictions, other than to say she permanently could not be around or supervise “potentially” unruly students.
On multiple occasions, Gorton asked for additional explanation, but was met with the same description of Brown’s restrictions. In each instance in which Gorton asked for additional clarification, he was met with the same language regarding the requirement that Brown needed to avoid interactions with potentially unruly students.
Four days before Brown’s three-year medical leave expired, Gorton tried once again to obtain clarification that would help to reassign Brown. In response, Brown’s doctor sent a fitness-for-duty certificate that stated there was “no reason why [Brown] could not be around students; she just may not be responsible for controlling those students.” Gratuitously, the doctor also suggested that “security” should be available to control students so Brown wouldn’t have to.
The Seventh Circuit held that the facts in this case “show that Milwaukee Schools acted consistently with the restrictions imposed by Brown’s doctors.” It went on the say that “to the extent that Brown is arguing that her restrictions were less severe than Milwaukee Schools believed, the undisputed facts show that Brown failed to hold up her end of the interactive process by clarifying the extent of her medical restrictions.”
The instructive value of this opinion to employers is clear: the success of Milwaukee Schools in this case is based upon Gorton’s documentation, which relied on job descriptions, statements from the school district’s HR department, and Brown’s own unchanging statements regarding her concern over being around students. If Gorton had not documented his understanding of Brown’s restrictions and his attempts at obtaining clarification from her and her medical providers, the decision in this case may have been completely different.