In a memorable Seinfeld episode, George Costanza learned just how strongly some people oppose the practice of "double dipping" (i.e., dabbing a chip in a bowl of dip, taking a bite, and then dipping the chip again). The Sixth U.S. Circuit Court of Appeals (which has jurisdiction over Tennessee) has proved to be much more tolerant of double dipping, however ― at least as the practice applied to a union member who unsuccessfully challenged her termination through arbitration and then filed a discrimination lawsuit. Fortunately, the employer had taken the proper actions to protect itself from liability in both forums (presumably, it's a loyal reader of Tennessee Employment Law Letter).

Facts

The employee worked for The Goodyear Tire & Rubber Company in Union City. After injuring her neck and shoulder, she went on medical leave beginning in May 2002. Anticipating her return, Goodyear had a physical therapist perform a functional capacity examination in February 2003. Based on the results, the physical therapist determined that she could no longer perform her previous job.

Representatives from Goodyear and the union met with the employee several times to discuss possible accommodations. Meanwhile, the physical therapist considered whether she was qualified to perform any other open jobs. Ultimately, the physical therapist concluded that the employee was qualified to work as a stock trucker, which required her to drive a forklift, and she returned to work in that job in June 2003.

Easy enough, right? Not so fast. Within a few weeks, the employee, complaining of neck and shoulder pain, removed herself from the stock trucker position. She then took another medical leave beginning in late July 2003.

Was the employer satisfied with having tried to accommodate the employee once? Not at all. In October 2003, the physical therapist concluded that the employee could perform a machine cleaner job if Goodyear provided certain accommodations. So the company, at minor cost, provided tools to reduce the job's lifting requirements. The employee then returned to work as a cleaner in early November 2003.

Sounds great ― or at least it did for a grand total of four days, after which the employee again stopped reporting to work. Her psychiatrist then wrote a note excusing her from work through January 6, 2004, because of various psychological disorders. The employer responded with a letter indicating that it was placing her on medical leave and reminding her that she would need to report her status to her department while on leave.

After January 6, though, the employee neither returned to work nor contacted the company to explain her absences. On January 30, a Goodyear representative was able to contact her by phone, but she said she couldn't talk and hung up. On February 19, Goodyear sent the employee a letter indicating that she was deemed to have "resigned without notice" pursuant to the no-call/no-show policy included in its collective bargaining agreement (CBA) with the union.

Nothing beats a termination letter to get an employee's attention. The employee and the union challenged her termination through arbitration. After a hearing, the arbitrator ruled in Goodyear's favor, finding that the employee had abandoned her job under the no-call/no-show policy. Case closed? Hardly. The employee, just getting warmed up, proceeded to file a lawsuit alleging discrimination under the Americans with Disabilities Act (ADA).

Court's Holding

Goodyear argued that the arbitrator's finding barred the employee's claims under the ADA. The district court agreed and dismissed the case in favor of Goodyear. On appeal, however, the Sixth Circuit disagreed.

In particular, the Sixth Circuit reasoned that contractual rights under a CBA are of a "distinctly separate nature" than the "independent statutory rights" created under antidiscrimination law. Moreover, while an arbitrator's expertise is focused on industrial relations, federal courts have more expertise in enforcing the statutes prohibiting discrimination. Furthermore, arbitration doesn't guarantee the same level of procedural safeguards that are available in court. Therefore, the Sixth Circuit ruled that the arbitration award didn't procedurally bar the employee's ADA claim and a court should independently consider its merits.

But even though the employer lost that battle, it won the war when the Sixth Circuit upheld the dismissal on alternate grounds. Focusing on the merits of the employee's case, the court ruled that she had in fact resigned pursuant to the no- call/no-show policy. It also rejected her claim that Goodyear failed to provide her with a reasonable accommodation. According to the court, Goodyear had appropriately engaged in the interactive process with the employee by exploring ways to accommodate her disability. Finally, the company had offered reasonable accommodations that should have allowed her to continue to work. Nance v. The Goodyear Tire & Rubber Company, Case No. 06-6563 (6th Cir., May 23, 2008).

Bottom Line

Based on the number of issues covered in this case, we suspect that one of our old law school professors may have concocted the fact pattern here. In any event, it offers a number of cautionary notes for employers. Let's take a look at them.

Interactive Process. When a disability prevents an employee from performing her job, you must both engage in an interactive process in which you discuss possible accommodations. Although the ADA doesn't specifically describe that process, the Sixth Circuit stressed that "the interactive process is mandatory, and both parties have a duty to participate in good faith." In some cases, the discussion will reveal a reasonable accommodation that allows the employee to continue to work. But even if no reasonable accommodation is found, you will have demonstrated your good faith to the employee and, if necessary, to a judge and jury.

Reassignment As A Reasonable Accommodation. When an employee wishes to return from medical leave, it's natural to think in terms of the position she left. If she can't return to her previous job, though, you should also consider other available positions for which she may be qualified. (You need not create a new job, however, or allow her to trump another employee's seniority rights under a CBA.) In addition, consider whether another reasonable accommodation is needed to allow the employee to perform an open position. In this case, for example, the employee was qualified to perform only the cleaner job after Goodyear provided additional accommodations.

No-Call/No-Show Policies. A no-call/no-show policy may help you anticipate employee absences. The key is to communicate the policy to employees and enforce it promptly and consistently.

Risks Of Litigation In A Union Environment. Don't get too excited when you get an arbitration award upholding a termination. In most cases, you won't hear from the employee again, but some employees don't give up so easily. While an arbitration award doesn't bar subsequent litigation, the Sixth Circuit did signal that a court may consider the award as evidence, depending on the safeguards provided. For example, did the employee receive legal representation? Was there an opportunity to examine and cross-examine and subpoena witnesses? What kind of record of the arbitration exists? By providing a fair forum and maintaining some record of the arbitration (at least a written decision from the arbitrator explaining his rationale or, in some cases, a full transcript of the hearing), you may be able to use the award as evidence in a later lawsuit.

This article is posted with permission from Tennessee Employment Law Letter, which is published by M. Lee Smith Publishers LLC. For more information, go to www.hrhero.com.

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