Refusal of return-to-work request raises questions for trial

Employers should be mindful that consistency in implementation of policies and treatment of employees is crucial to preventing discrimination claims.

Case name: Calvo v. Walgreens Corp., No. 08-16229 (11th Cir. 08/11/09, unpublished).

Ruling: In an unpublished decision, the 11th U.S. Circuit Court of Appeals reversed and remanded summary judgment for Walgreens Corp. in a former employee's Americans with Disabilities Act suit. The 11th Circuit affirmed summary judgment for Walgreens on the employee's retaliation claims.

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What it means: Employers should be mindful that consistency in implementation of policies and treatment of employees is crucial to preventing discrimination claims. For example, if a job function is truly essential, it should consistently be required of employees. Likewise, if an employee is allowed to return to work under certain circumstances, she should always be allowed to return to work under similar conditions.

Summary: An assistant manager for Walgreens was involved in a serious car accident that permanently incapacitated her left arm and hand and badly injured her right arm. She underwent numerous surgeries, working in her regular position in between operations with some assistance from coworkers to carry items. When the manager was ready to return to work after the final surgery, Walgreens asked her to provide a medical release. On the form, her doctor checked the box indicating she could return to "any other position," but his notes indicated she could continue her usual work. Walgreens refused to allow her to return and discharged her. The manager sued under the ADA. The 11th Circuit reversed and remanded summary judgment for Walgreens.

The court held that the manager raised questions of fact on several issues, including whether lifting was an essential function of her job. The fact Walgreens acknowledged that she successfully performed her job between surgeries without being able to lift indicated to the court that lifting may not be an essential function of the assistant manager job. Also, the written job description listed lifting as only one out of 23 primary functions of assistant managers.

The court also determined that the manager raised factual controversies over whether she met the definition of disability. She provided evidence that she was substantially limited in performing daily life activities such as dressing and bathing herself. Further, she had no use of her left arm and only limited use of her right arm, the court noted.

Additionally, the manager raised doubt about Walgreens' asserted reason for refusing to accommodate her: that she was no longer qualified for her position. The manager pointed out that she had been allowed to return to work in the past with medical documentation that was even more restrictive than the final note she presented. This apparent inconsistency moved the issue past summary judgment, the court concluded.

However, the manager's retaliation claim faltered because she argued that Walgreens' failure to accommodate her was retaliation. She did not present new facts or arguments that would lead this claim to be considered as separate from her failure to accommodate claim, the court said.

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October 5, 2009

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