Court Says Failure to Identify New Position Nixes Visually Impaired Worker's ADA Claim

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A Volvo assembly line worker in Virginia who was placed on disability leave because of his deteriorating vision, and who did not identify a vacant position for which he had seniority under a bargaining agreement and was qualified to perform, lacks a failure to accommodate claim under the Americans with Disabilities Act, the U.S. District Court for the Western District of Virginia held Jan. 24 (Kemp v. Volvo Grp. N. Am. Inc., W.D. Va., No. 11-00535, 1/24/13).

Granting summary judgment to Volvo Group North America Inc., Judge Samuel G. Wilson found that Charlie C. Kemp Jr. could not base his ADA claim solely on an allegation that the company did not engage in an interactive process to identify a reasonable accommodation for his disability.

Kemp, the court said, had the burden of demonstrating “the existence of a vacant position” with job duties he could perform with or without reasonable accommodation.

The district court ruled that Kemp failed to meet that burden, and further presented no evidence that Volvo acted in bad faith when it concluded, based on “objective medical evidence” supplied by Kemp as well as a specialist's evaluation, that Kemp's impairment restricted his ability to work in an industrial environment. 

Employee Had Retinitis Pigmentosa

In 1993, Kemp began working at a Volvo heavy truck manufacturing facility in Dublin, Va., the court recounted. He was a member of United Auto Workers Local 2069.

He held a painter position when he was laid off in early 2009, but was recalled by March of that year. Pursuant to seniority provisions in a collective bargaining agreement, Kemp was placed in a position in the assembly department, instead of the paint department.

Kemp presented a medical letter to Volvo's health and risk manager stating that his peripheral vision was deteriorating from retinitis pigmentosa. The letter, written by Kemp's optometrist, further stated that Kemp's impairment “may pose a hazard to himself or fellow workers if working in an area that uses dangerous tools.” The letter suggested that Kemp be assigned “in an area where restricted mobility is required and high impact machinery is not involved.”

Volvo officials placed Kemp on short-term disability leave, and the plant's physician referred Kemp to Dr. John Hines, an opthamologist.

Hines examined Kemp and found “severe peripheral vision loss under the disability guidelines of the visual system.” He further concluded that Kemp's impaired vision “makes it unsafe for [him] to work in an industrial environment.”

Although Hines recommended that Kemp contact another doctor for a second opinion, Kemp did not do so. Volvo officials in October 2009 suggested that Kemp apply for long-term disability benefits. Kemp received such benefits under Volvo's Employment Retirement Income Security Act plan, as well as Social Security disability benefits.

Nevertheless, Kemp in August 2010 inquired about his employment status and the likelihood of his return to Volvo. He ultimately sued the company under the ADA, alleging that the company failed to accommodate his disability. He claimed Volvo failed to engage in an interactive process with him to identify a position for which he would be qualified. 

Failure to Identify Position Dooms ADA Claim

The district court granted summary judgment to Volvo, finding that Kemp failed to meet his burden of identifying a vacant position that included job duties he could perform with or without accommodation.

To establish a prima facie case for his accommodation claim, the court explained, Kemp had to show that he was disabled, that Volvo knew about the disability, that he could perform with reasonable accommodation the essential functions of a position, and that Volvo refused to accommodate him.

It added that the fourth element contains an “implicit” requirement that Kemp and Volvo engage in an interactive process to identify a reasonable accommodation.

However, relying on the U.S. Court of Appeals for the Second Circuit's ruling in McBride v. BIC Consumer-Products Manufacturing Co., 583 F.3d 92 (2d Cir. 2009) (192 DLR A-5, 10/7/09), the district court said Kemp cannot base his failure to accommodate claim solely on an allegation that Volvo did not participate in an interactive process.

Kemp, it said, bore the burden of demonstrating “the existence of some accommodation that would allow him to perform the essential functions of his employment, including the existence of a vacant position for which he is qualified.”

The court found that Kemp failed to identify such a position, and further failed to demonstrate that Volvo acted with bad faith in the reasonable accommodation interactive process.

Kemp had presented Volvo officials with a medical letter stating he had a visual impairment that would be “problematic” on the plant's shop floor, the court said. Company officials then “proceeded cautiously and carefully from that point to resolve the dilemma rather than simply automatically concluding that Kemp was unfit for work,” it said.

The court found “no hint” of bad faith on the part of Volvo. It observed that the interactive process is a “two-way street,” and Kemp never followed up with the medical provider suggested by Dr. Hines for Kemp to obtain a second assessment on his visual ability to safely work in an industrial plant.

“The record before the court presents none of the hallmarks of stereotyping or of the callous jettisoning of a loyal employee with a disability,” the court said. “Rather, it appears that Volvo was stymied or simply at a loss for answers under the circumstances it confronted. Ultimately, it concluded through the interactive process that it could not fashion a reasonable accommodation and successfully worked to ensure that Kemp, its employee, receive[d] disability benefits.” 

Volvo Relied on Worker's Objective Medical Evidence

In addition, the court rejected Kemp's contention that his vision did not actually deteriorate and that he did not pose a safety threat to himself or his co-workers.

“Volvo did not come up with the idea on its own that Kemp had an incurable, progressive eye condition making his placement in an industrial setting problematic,” the court said. “It came from Kemp.”

When “objectively and reasonable read,” the court said, the doctor's letter presented by Kemp suggested that his condition “had deteriorated to a point that he might have posed a hazard to himself or fellow workers and that either an accommodation or disability might have been in order.”

“Kemp presents no rationale for concluding that Volvo acted inappropriately in relying on the objective medical evidence he supplied to Volvo,” the court said.

Hilary K. Johnson of Abingdon, Va., and Melvin E. Williams of Roanoke, Va., represented Kemp. James M. Coleman and Jena S. Tarabula of Constangy, Brooks & Smith in Fairfax, Va., represented Volvo.

By Jay-Anne B. Casuga

Text of the opinion is available at /uploadedfiles/BNA_V2/Images/From_BNA_V1/News/kemp.volvo_(1).pdf.

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