Federal Court in North Carolina Rules Regarding Reasonable Accommodations
On February 24, 2020, the U.S. District Court for the Middle District of North Carolina issued an opinion in Brown v. Martin Marietta Materials, Inc. regarding disability discrimination, reasonable accommodations, and retaliation involving an employee who was unable to return to work following expiration of Family and Medical Leave Act (FMLA) leave. The case offers employers some guidance regarding the undue hardship analysis at a micro and macro level, ensuring compliance with the interactive process, and the best practice for handling requests for finite leave when the possibility of additional future leave is evident.
Ethan Brown, a former truck driver, alleged disability discrimination under the Americans with Disabilities Act (ADA) and North Carolina public policy, as well as retaliation under the FMLA, against his former employer, Martin Marietta Materials, Inc. The district court granted summary judgment as to Brown’s FMLA retaliation claim and certain public policy claims, and denied summary judgment as to Brown’s ADA claim and remaining public policy claims.
“Martin Marietta owns and operates quarries at which it mines and refines natural resource-based building materials.” Brown worked for Martin Marietta from May 2014 until March 2017, most recently in the position of “Truck Driver-Heavy Off Highway.” An “essential function of this position,” as memorialized in the written job description, is “driving and operating a heavy equipment vehicle to move rock product about the facility.” Consistent with Martin Marietta’s practice, Brown was cross-trained on other positions, including positions “that did not involve driving a truck or operating heavy equipment.” However, despite the cross-training, the plant manager “described driving as ‘the main function of [Brown’s] job’” and estimated Brown ‘spent 85% to 90% of his time operating a truck.’”
Brown has had epilepsy since childhood, which he controls with medication. In December 2016, “he suffered an epileptic seizure for the first time in five years.” “His physician wrote a note seeking to excuse him from work” for four days. Shortly thereafter, Brown “inquire[d] about FMLA leave” and stated “that he ‘was going to be out of work for six months due to epilepsy.’” Brown’s doctor opined that “as a result of the seizure . . . he [would be] ‘unable to drive for six months past the last seizure,’” would be “incapacitated” for six months, and “could suffer [annual] episodic flare-ups preventing him from performing his job functions.” Martin Marietta approved Brown’s request for FMLA leave, granting him 12 weeks of leave.
During Brown’s FMLA leave, his mother contacted Martin Marietta’s human resources (HR) department to inquire about his eligibility for long-term disability benefits and available accommodations. The HR department encouraged Brown’s mother to apply for long-term disability benefits on his behalf, and responded to the accommodation inquiry by advising that Brown’s doctor stated he could not work. Brown also spoke with the safety manager about work he could perform between the expiration of his FMLA leave and the conclusion of the six-month driving restriction, including “to work and do the maintenance, be on the ground, wash down, weld, run the scales.” The safety manager repeatedly explained that the work Brown described “wasn’t a job title” and that there were no openings for work that Brown could perform.
Martin Marietta “evaluated whether Brown could transfer to any other vacant job” but concluded that “Brown was not qualified for any position” that was “geographically proximate to” his original job site. “All but one position required the operation and driving of heavy machinery,” and that one required prior “supervisory or leadership experience,” which Brown lacked. Martin Marietta also stated that it could not reassign Brown’s truck driving responsibilities without “disrupt[ing] [the company’s] operations.”
Ultimately, Martin Marietta terminated Brown’s employment following the expiration of his FMLA leave, in accordance with its “policy and practice to terminate the employment of individuals who do not return to work after their approved medical leave has ended if there are no reasonable accommodations available that would enable the employee to return to work.”
Mr. Brown filed suit, alleging that “Martin Marietta discriminated against him based on his disability by terminating his employment . . . and failing to accommodate his disability . . . retaliated against him in violation of the FMLA . . . , and wrongfully discharged him in violation of North Carolina’s public policy.”
The District Court’s Decision
As to Mr. Brown’s disability claims, “Martin Marietta argue[d] that driving was the essential function of Brown’s job, there were no vacant positions with duties that Brown could perform and for which he was qualified, his proposed reallocation of job duties was not reasonable, and Martin Marietta was not required to provide Brown an indefinite leave of absence.” The court agreed that driving was an essential function of Brown’s job. However, it found that “[t]here are genuine disputes of material fact . . . about the existence of reasonable accommodations, whether Martin Marietta . . . participate[d] in good faith in an interactive process to identify reasonable accommodations, and whether those reasonable accommodations would cause Martin Marietta undue hardship.” In so holding, the court reaffirmed that “Martin Marietta was not required to reallocate the essential function of [Brown’s job]” and that the company was not “required to move others out of their positions so that Brown could perform their jobs.”
The court held that “reassigning an employee to a vacant position may be a reasonable accommodation” and noted that Brown “was willing to work at” any of the 30 facilities between Raleigh and Charlotte. The court also held that “providing additional, finite unpaid leave for necessary treatment may be a reasonable accommodation.” Here, the court noted that Brown’s impairment was finite and was estimated by his doctor to last only six months. The court found “[t]hat Brown may have had flare-ups after June that would have necessitated a subsequent driving restriction is not relevant to the question of whether he could have driven a truck if given unpaid leave through June 2017.”
The court also considered whether Brown’s proposed accommodations would have created an “undue hardship” on Martin Marietta. In its analysis, the court considered that “Martin Marietta has ‘over 8,500 employees in 27 states, Canada, and the Bahamas,’” and operates over 432 facilities “with annual revenues of nearly $4 billion.” At the facility relevant to this case, Martin Marietta employed 16 individuals. During Brown’s leave, the facility “had to ‘assign driving duties to supervisory personnel, assign other truck drivers to the facility, and/or requir[e] existing truck drivers to perform additional driving duties,’” which resulted in “additional expenditures on overtime compensation” and “significant stress to individual employees and the operation of the facility.”
Ultimately, the court concluded there was “a genuine dispute of material fact as to whether any of Brown’s accommodations that may be reasonable cause Martin Marietta undue hardship in light of the operations of Martin Marietta, the nature and cost of the accommodation, the financial resources of the  facility and the company as a whole, the number of employees at each facility, and the number and location of the company’s other facilities.”
Additionally, the court held there was “a genuine dispute about whether Martin Marietta met its obligation to participate in the interactive process to identify a reasonable accommodation.” In so holding, it highlighted evidence that the company did not give Brown a “straight answer,” “kind of left [the subject] hanging,” and on occasion did not respond to him. The court noted that “although [the company] did communicate with Brown and his mother during his absence, a jury could find from the substance of the communications and, at times, the absence of communication, that Martin Marietta breached its duty of good faith to engage with Brown in an interactive process.”
As to Brown’s disability discrimination claims, the court held that “[t]here is no dispute that Brown had a disability” and “that Martin Marietta terminated him . . . at the expiration of his FMLA leave because he could not drive a truck.” The court held, however, that “there are genuine disputes of material fact as to” “whether Brown was a qualified individual at the time of his termination” and “whether there were reasonable accommodations available” to Brown.
Regarding Brown’s FMLA retaliation claim, the court largely relied on his failure to oppose summary judgment on that claim and noted that “[t]here is no record evidence to show that this proffered [reason for termination]”—namely, because he could not return to work at the expiration of his FMLA leave—“is pretextual.” Consequently, the court granted summary judgment as to that claim.
Finally, the court held that Brown’s wrongful discharge claim failed on jurisdictional grounds “because it arises from the same facts and circumstances as his ADA claims.”
Employers may want to heed this decision for many reasons. First, the size of a company and the amount of revenue it generates factor into the undue hardship analysis, such that while an accommodation might create an undue hardship on one particular location, it might not create an undue hardship on the company as a whole. Second, it is helpful for employers to be responsive during the interactive process because doing so could avoid a finding that the employer dropped the ball in the process. Both parties—the employer and the employee—have a duty to engage in the interactive process in good faith. Third, regarding reasonable accommodations, employers with multiple locations may want to consider alternative jobs at various locations, rather than focusing on available jobs at the job site at issue or within a narrow geographical scope. Fourth, while indefinite leave is not generally considered a reasonable accommodation, finite leave could be, even when there is evidence that future leave may be required. Finally, as always, periodically review job descriptions to ensure they explicitly list essential functions of the positions at issue and are an accurate reflection of what the job entails. Job duties and positions evolve, and while job descriptions may not be dispositive in determining whether a particular job duty is essential for the ADA reasonable accommodation analysis, it can be helpful evidence nonetheless (and is helpful for employees as well when managing performance expectations and the like).