Disability Accommodation Requires Good-Faith by Employee as well as Employer

Does a disabled employee have an obligation to make a good-faith effort to succeed in a position offered as an accommodation?  The answer is yes according to Dillard v. City of Austin, 837 F.3d 557 (5th Cir. 2016).

Derrick Dillard was a City of Austin employee.  His job required him to perform manual labor.  After injuring his back and shoulder in an on-the-job accident, he was no longer able to perform manual labor.  After about ten months in the City’s “Return to Work” program, Derrick was released by his doctors to “administrative duty” work.  He was then assigned by the City to an administrative assistant position.

Due to his lack of clerical or secretarial experience, the City provided Derrick with extensive on-the-job training to assist him in transitioning to his new job.  Derrick showed no interest in learning the skills needed to succeed in an administrative assistant.  During the 21 weeks Derrick was assigned to the administrative assistant position, he frequently missed work without giving proper notice.  When he did come to work, he spent a lots of his time playing computer games, surfing the internet, and making personal calls.

Not surprisingly, Derrick was terminated by the City due to his unsatisfactory performance as an administrative assistant.  Derrick claimed that the City denied him a reasonable accommodation and discriminated against him based on his disability, which led to a federal court lawsuit.

The trial court granted the City’s motion for summary judgment and the 5th Circuit Court of Appeals upheld the trial court—resulting in the dismissal of Derrick’s lawsuit.  The 5th Circuit described the disability accommodation process as a “two-way street” requiring the employer and employee to work together in good faith to find a reasonable accommodation for the disabled employee.  The court concluded that the uncontroverted evidence established that Derrick did not make “an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.”  His failure to make a good-faith effort to succeed as an administrative assistant was fatal to his claims against the City.

A word of caution for employers: the decision in this lawsuit is based on the City’s substantial efforts to accommodate a disabled employee and the employee’s complete refusal to cooperate.  The outcome of this lawsuit would likely have been different if the City had set Derrick up to fail by arbitrarily assigning him to a position for which he was unsuited and not providing him with the training needed to succeed in his new position.

Mike Loftin is a shareholder in the Underwood Law Firm’s Amarillo Office, who is board certified in Civil Trial Law. This article is not intended as legal advice.  If you seek legal counsel regarding a specific employment law matter, please contact an attorney.

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