The U.S. Court of Appeals for the Fifth Circuit affirmed a grant of summary judgment finding that an employer did not violate the Americans with Disabilities Act (“ADA”) by discharging an employee after participating in an interactive process seeking reasonable accommodation. Dillard v. City of Austin, No. 15-50779 (5th Cir. Sept. 16, 2016).
Following an accident which prevented the employee from working as a manual laborer, the employer offered transfer to an administrative assistant position. The employee accepted the position, despite expressing reservations about whether he could do the job. The employer provided the employee with training and had the employee shadow another colleague as a means of providing further training. However, plaintiff failed to participate in additional training, repeatedly missed work without notice, and came late and left early. Despite those deficiencies and subpar reviews, the employer did not discharge the employee. Instead, it sought other assignments to accommodate the worker’s impairments, but could not identify one. The employee then was terminated due to poor performance.
The Fifth Circuit found the employee offered no evidence that the employer’s reliance on his history of misconduct and poor performance was pretextual or discriminatory. The Fifth Circuit held that once the employee accepted the administrative position, it was up to him to make an effort to learn and perform the required duties. The evidence of employee misconduct demonstrates a failure to fill the role in good faith. Under these circumstances, the obligation does not shift to the employer to continue the interactive process by offering him alternative placement.
This decision serves as a reminder that employers must engage in an interactive process under the ADA when faced with employees who require reasonable accommodations. However, the obligation is mutual and employees also are required to participate and engage in the process in good faith. Moreover, documentation of poor performance prior to discharge is critical as ever.