On April 8, 2010, the Court of Appeals for the Third Circuit ruled that an employer may have violated the Americans with Disabilities Act by failing to accommodate an employee’s request to change her shift, claiming that her partial blindness made it difficult for her to commute at night. In Colwell v. Rite Aid Corporation, No. 08-4675 (3d Cir. Apr. 8, 2010), Jeanette Colwell, a cashier at Rite Aid, was diagnosed with retinal vein occlusion in her left eye, and eventually became blind in her eye. In mid-September 2005, Colwell notified her supervisor that, while she was able to perform her work duties without a problem, she found it difficult to drive at night, and requested to work only during day shifts.
Colwell’s supervisor told her that she could not grant that request, as it wouldn’t be fair to the other employees. Further, according to the collective bargaining agreement, shifts were based on seniority. A few weeks later, Colwell provided a doctor’s note, recommending that she refrain from night driving. Colwell’s supervisor again refused her request to work only day shifts, and Colwell responded that her grandson would pick her up when possible, but that she could not routinely depend on others.
Colwell’s union representative was also unsuccessful in convincing the supervisor to re-arrange Colwell’s shifts. Colwell and her union representative then scheduled a joint meeting with her supervisor, who didn’t show up, claiming that ”he got tied up,” and would arrange another meeting. Frustrated, Colwell resigned, and gave two weeks notice, claiming that “I feel I have not been given fair treatment. There has been prejudice against me. I have been picked on and lies have been told about me. No one deserves that kind of treatment.”
Rite Aid did not respond to Colwell’s resignation letter. Colwell then filed a lawsuit, claiming that Rite Aid failed to accommodate her disability, constructively terminated her employment, and retaliated against her. After discovery, the district court dismissed Colwell’s complaint in its entirety.
The Third Circuit affirmed the dismissal of Colwell’s retaliation and constructive discharge claims, but found that there was an issue of fact as to whether Rite Aid tried to accommodate Colwell’s disability. First, the Court held that Colwell was disabled as a matter of law, as she had no vision at all in one eye, rejecting Rite Aid’s argument that she did not prove that her condition had a substantial impact on her daily life activities.
The Court further found that Rite Aid had an obligation to attempt to accommodate Colwell’s disability. In doing so, the Court rejected Rite Aid’s argument that Colwell was requesting a non-workplace accommodation:
Rite Aid adopts the position of the District Court that employers are not “required to accommodate [the] inability to commute to work independently” because “commuting to and from work falls outside the work environment.” [citation omitted] In other words, Rite Aid argues that it had no duty to even consider changing Colwell’s shift because Colwell’s difficulties amounted to a commuting problem unrelated to the workplace, and the ADA does not obligate employers to address such difficulties. We agree with the EEOC that the reach of the ADA is not so limited. Instead, we hold as a matter of law that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates. The statute expressly so provides.
The Court concluded:
In sum, we hold that the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work. As Rite Aid makes no factual argument about the reasonableness of Colwell’s request, nor has it argued before us that scheduling Colwell for day shifts would have been an undue burden, those questions are ultimately for the jury.
The Court held, however, that there was a factual dispute as to whether or not Rite Aid attempted to accommodate Colwell’s disability. Rite Aid argued that it had thought that it did not need to change Colwell’s shift after she informed them that her grandson could pick her up; Colwell claimed, however, that she advised that she could not always rely on her grandson. There was also an issue of fact as to who had terminated the interactive process; a jury could find that, by quitting before re-scheduling a meeting, Colwell had not given Rite Aid a further opportunity to accommodate her. On the other hand, as the Court noted, a reasonable jury could conclude that any further meetings might be futile, as Colwell’s supervisor had consistently refused her requests. The Court summarized, “Under the circumstances presented in this case, a reasonable jury could thus conclude that either party violated the duty to engage with good faith in the interactive process.”
Interestingly, while the Court found that there was an issue of fact regarding the interactive process, and required that issue to be decided by a jury, it affirmed the dismissal of Colwell’s claim of constructive discharge. To prove a constructive discharge claim, the employee must show that the working conditions are so unpleasant or difficult that a reasonable employee would feel that he or she had no option but to resign. The Court further noted:
Factors we have found relevant to this issue are whether the employer (1) “threatened [the employee] with discharge” or “urge[d] or suggest[ed] that she resign or retire,” (2) “demote[d] her,” (3) “reduce[d] her pay or benefits,” (4) “involuntarily transferred [her] to a less desirable position,” (5) altered her “job responsibilities,” or (6) gave “unsatisfactory job evaluations.” Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir.1993). None of those circumstances existed here.
More specifically, the Court found that Colwell’s alleged isolated from other employees, being called slow, and management’s failure to react to her complaints were no so unbearable that a reasonable person would feel compelled to resign.
Colwell has implications for both employers and employees. It is a good reminder to both parties that they have an obligation to engage in an interactive process, in good faith, regarding workplace accommodations. Further, employees who quit often have a difficult time meeting the requirement for a constructive discharge; given the realities of the workplace, it can be a difficult hurdle for employees to prove that their working conditions were so intolerable that they felt that they had no option but to leave.