Labor/Employment – Reassignment backs failure-to-accommodate suit

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In a case of first impression, the court held that where an employer transfers an employee from a position they could perform if provided with reasonable accommodations to a position they do not want, that could support a failure-to-accommodate claim.

Background

Michael Steven Wirtes sued his former employer, the City of Newport News, alleging that it failed to accommodate his disability in violation of the Americans with Disabilities Act, or ADA. According to Wirtes, the city concluded that he could not perform the essential functions of his job as a detective and then offered him the options of either retiring early or accepting reassignment to a civilian position he did not want. Wirtes reluctantly retired early and then filed suit. The district court granted the city’s motion for summary judgment, finding that because Wirtes was offered reassignment, he could not make out a prima facie failure-to-accommodate claim under the ADA.

Analysis

For a plaintiff to establish a prima facie case against his employer for failure to accommodate under the ADA, the plaintiff must show: “‘(1) that he was an individual who had a disability within the meaning of the statute; (2) that the employer had notice of his disability; (3) that with reasonable accommodation he could perform the essential functions of the position; and (4) that the employer refused to make such accommodation.’”

The district court skipped over the first three elements of the prima facie claim before concluding that Wirtes could not satisfy the fourth element, because the city offered him a position as a logistics manager. Thus, for purposes of this appeal, the court assumes that Wirtes could have been reasonably accommodated in his job as a property-crimes detective through the implementation of either or both of his proposed accommodations.

As a result, the narrow question before the court is, assuming the city could have accommodated Wirtes in his role as a detective, did it nonetheless appropriately accommodate him by offering to reassign him to a civilian logistics manager position? In this court’s recent decision in Elledge v. Lowe’s Home Centers, 979 F.3d 1004 (4th Cir. 2020), this court joined other circuits and the Equal Employment Opportunity Commission in recognizing that reassignment is the ADA’s accommodation of “last resort,” and indicated that reassignment should be held “in reserve for unusual circumstances.”

Elledge thus established that reassignment is a disfavored accommodation that employers are generally under no obligation to offer. However, it did not address whether reassignment to a vacant position is a permissible accommodation under the ADA when the employee wishes to stay in their current position and can perform the essential functions of that position with reasonable accommodations. Every circuit court to have addressed this issue has concluded that an employer fails to accommodate its qualified disabled employee when it transfers that employee from a position they could perform if provided with reasonable accommodations to a position they do not want.

Considering this significant precedent from other circuits, the EEOC’s guidance that employers should consider accommodating employees in their current position before considering reassignment and this court’s explanation in Elledge that reassignment is a last-among-equals accommodation that should be held “in reserve for unusual circumstances,” the court holds that an employer generally “[refuses]” to accommodate its disabled employee for ADA purposes when it unilaterally reassigns them to a vacant position instead of reasonably accommodating them in their current position.

To clarify, the court does not hold that an employer can never reassign an employee when there exists a reasonable accommodation that will keep the employee in their current and preferred position. That broad question is not before this court. Nor should this opinion be read in any way to restrict the ability of employers and employees to agree to a voluntary transfer. Rather, reassignment is strongly disfavored when an employee can still do their current job with the assistance of a reasonable accommodation, and should therefore be held “in reserve for unusual circumstances.”

Vacated and remanded.

Wirtes v. City of Newport News (Lawyers Weekly No. 001-092-21, 18 pp.) (James A. Wynn, Jr.) Case No. 19-1780. April 30, 2021. From E.D. Va. (Lawrence Richard Leonard, M.J.) Joshua L. Jewett, Aaron D. Siegrist and Julia A. Rust for Appellant. Adonica Baine and Darlene P. Bradberry for Appellee.