Gun Maker Must Reload in Worker’s Disability Bias Case

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By Patrick Dorrian

Dec. 5 — Remington Arms Co. may have been on notice that an engineer with a bad back wanted a job accommodation when he said he needed to “mix it up” while performing tasks involving lifting, bending, standing and climbing, a federal appeals court ruled ( Cady v. Remington Arms Co. , 2016 BL 401578, 6th Cir., No. 16-5035, unpublished 12/2/16 ).

The Dec. 2 unpublished opinion addresses the sometimes cloudy issue of when a worker with a disability has provided his employer with enough information to trigger the duty under the Americans with Disabilities Act to engage the employee in an interactive dialogue to try to identify a work adjustment that will enable the employee to continue in his job. It’s an issue that can trip up employers, leading to lost worker productivity, legal claims and potential liability for money and other damages.

Training managers on how to recognize when an employee is requesting or may be implying a need for a reasonable accommodation is vital for employers. It should be coupled with training on the ADA’s restrictions on the types of medical inquiries that may be made of an employee, a pair of management attorneys and a training consultant recently told Bloomberg BNA.

Jury Should Decide

Robert Cady—with an assist from the Equal Employment Opportunity Commission—convinced the U.S. Court of Appeals for the Sixth Circuit that a jury should decide if Cady put Remington on notice that he needed an adjustment in a job assembling Creform work stations. Remington was aware of Cady’s history of back surgeries and that he recently had an MRI and was consulting a doctor.

When Cady asked to “mix it up” and not spend all his time assembling the Creform stations, the company may have been obligated to engage in the ADA accommodation process, the court said, reviving his failure-to-accommodate claim.

The court also rejected Remington’s contention that it wasn’t aware that Cady was disabled because he only expressed a general concern about his back in the midst of otherwise complaining about his work assignment. The company’s knowledge of his surgeries, MRI results and recent doctor’s visit was again sufficient notice, the court found. It said “there is no rule that an employee’s disability notification must stand alone.”

EEOC Pleased With Outcome

The ADA doesn’t separately require a worker to put his employer on notice of a disability, the EEOC said in an amicus brief.

“There is no independent requirement that employees disclose a disability to their employers in the absence of a need for an accommodation,” the EEOC said.

“The Commission is pleased the appellate court agreed that this ADA claim should not have been decided by summary judgment and plaintiff is entitled to his day in court,” Kimberly Smith-Brown, an EEOC spokeswoman, told Bloomberg BNA in a Dec. 5 e-mail.

Neither the company nor its attorneys responded Dec. 5 to Bloomberg BNA’s request for comment. Cady’s attorney was traveling and unavailable for comment Dec. 5 when contacted by Bloomberg BNA.

Complained to Supervisor, Plant Manager

Cady had hurt his back and undergone two surgeries before joining Remington’s Kentucky facility in 2012 as an engineer on its R-51 handgun team. Friction with his supervisor and other team members apparently led to his reassignment in April 2013. Cady was upset and was talked out of resigning by company Vice President Scott Franz, Judge Deborah L. Cook recounted for the Sixth Circuit.

Cady’s back condition flared and began “progressively getting worse” the following month, and an MRI revealed that he had spinal stenosis and nerve compression. He told Remington’s human resources manager about the MRI results and that he was scheduled to see his neurologist July 12, 2013.

The doctor prescribed medication but did not place Cady on any work restrictions since his job was essentially sedentary. The following week, however, Remington sent Cady to St. Cloud, Minn., were he was assigned to assemble the Creform work stations—interlocking pipes and joints that can be made into customized benches for specific manufacturing tasks.

Assembling the benches aggravated Cady’s back, and he complained to one of his Kentucky supervisors. He also complained about performing the work in an outside lot because he said his back medicine made him sensitive to sunlight.

Cady stopped building the benches and went to a conference room and worked on his computer. He then met with the St. Cloud plant manager and mentioned he was concerned about his back but could build the Creform stations if he mixed that work in with other work. He was later sent back to his hotel, called that night and told to return to Kentucky, and fired upon his return for “performance issues.”

Claims Revived Over Notice Issue

A lower court dismissed Cady’s failure-to-accommodate and wrongful discharge claims, but that was error, Cook said.

The lower court based its dismissal on the mistaken conclusion that Cady failed to provide Remington with adequate notice. But a jury could find Cady sufficiently notified the company that he was disabled and that he needed an accommodation to enable him to assemble the Creform stations, Cook said.

Both the HR manager and the Kentucky supervisor Cady spoke with while in Minnesota “were instrumental in recalling Cady to Kentucky and making the firing decision,” Cook wrote.

Judges Martha Craig Daughtrey and Julia Smith Gibbons joined the opinion.

Theodore Walton of Clay Daniel Walton & Adams PLC in Louisville, Ky., represented Cady. Dana L. Rust, Micah B. Schwartz and Katherine G.M. Crocker of McGuireWoods in Richmond, Va., represented Remington. Elizabeth E. Theran of the EEOC in Washington represented the commission.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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