Since City offered training for alternative employment position due to disability, City did not fail to make a reasonable accommodation says U.S. 5th Circuit.

Dillard v City of Austin, No. 15-50779 ( 5th Cir. September 16,2016)

This is a disability discrimination case where the U.S. Fifth Circuit affirmed the granting of summary judgment for the City employer.

After a car accident left Dillard with lingering injuries that prevented him from performing his former tasks as a manual laborer and field supervisor, the City offered, Dillard an administrative assistant position. Dillard testified that he was “stunned a little bit, because [he] didn’t know how to do no administrative work.” Despite expressing reservations about whether he could do the job, he accepted it.  Dillard did not meet the listed minimum qualification for an administrative assistant position with the City, as he did not have the minimum three years’ clerical or secretarial experience. In light of his lack of experience, Dillard was given on-the-job typing and computer training, and shadowed another administrative assistant. Dillard’s supervisor repeatedly told Dillard to complete more training, and showed him how to sign up for the City’s training programs, but he did not do so.  As a result of performance and behavior in the administrative position, the City eventually terminated Dillard.  Dillard filed a disability discrimination claim asserting the new job was not a “reasonable accommodation” as he was not skilled for that position. The trial court granted the City’s summary judgment motion and Dillard appealed.

The undisputed summary judgment evidence established Dillard was given multiple trainings and opportunities to learn the essential job skills. It did not appear he was incapable of learning, but that he “demonstrat[ed] no initiative, no desire to learn” in his new role. He was also found to be playing computer games at work, surfing the internet, coming in late, and not completing assignments.  Dillard offered no evidence the misconduct and poor performance were pretextual.  As a result, summary judgment was proper for his discrimination claim.  In relation to the failure to accommodate claim, ADA compliance requires an employer to engage in an interactive process with an employee to ascertain what changes could allow her to continue working. In other words, employer and employee must work together in good faith, back and forth, to find a reasonable accommodation. This should be an ongoing, reciprocal process.  Dillard contends that the City should have provided alternative placements and the failure to do so violated the City’s duty to work with him in good faith to find a reasonable accommodation. However, the court held “Dillard’s position neglects that the interactive process is a two-way street…” Once he accepted the position “…the ball was in his court: it was up to him to 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.”  Further, the undisputed evidence established Dillard committed misconduct.  An employee “unable to perform office tasks needs no special skill to avoid misusing company time, dishonesty, falling asleep, or absenteeism.”  As he did not attempt to fill his new role in good faith, Dillard cannot rely on the fact that he did not successfully adjust as a grounds for a failure to accommodate. Summary judgment was proper for the City on the failure to accommodate claim.

If you would like to read this opinion click here. The Panel includes Circuit Judge Southwick, Circuit Judge Costa, and District Judge Ozerden. Circuit Judge Costa delivered the opinion of the court. Attorney for the Appellant: Kell Asher Simon, Austin, TX. Attorney for the Appellee: Megan Mosby, Austin, TX.


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