Eastern District Court of Tennessee
No. 2:04-cv-381, 2008 U.S. Dist. LEXIS 13920
February 25, 2008
Keywords: ADA, employment, legal concepts, retaliation
Facts of the Case
Ms. Greta D. Kilgo was employed at the Cingular Wireless’ (“Cingular”) Call Center from September 2001 until sometime after July 2005. Her job responsibilities consisted of fielding and handling customer calls quickly and efficiently. Ms. Kilgo had reconstructive surgeries in June 2004 and July 2005 to replace a hip and a knee, respectively. She has severe osteoarthritis in these areas and had difficulty sitting or standing for long periods of time.
Ms. Kilgo made a series of four accommodation requests regarding the location of her desk in relation to the building entrance and restroom, and her need to take more frequent breaks. In November 2001 she made a verbal accommodation request, to which Cingular eventually responded that without medical documentation they would not grant an accommodation. On a second occasion (date unknown) Ms. Kilgo submitted Cingular’s own form, completed by her gynecologist. The form asked if a condition “substantially limits” Ms. Kilgo in a major life activity and provides a list of major life activities with boxes for the physician to check off. Ms. Kilgo’s gynecologist checked the box indicating she was substantially limited in the major life activity of walking, but then circled the word “substantial” in the introductory sentence and wrote “NO” next to it. Because of this discrepancy Cingular denied Ms. Kilgo’s request.
In April 2002 her gynecologist followed up with a letter to Cingular stating that Ms. Kilgo was “significantly limited” in a major life activity, but did not consider the limitation “substantial” because it was unrelated to her job description. The gynecologist further noted that she did not understand what Cingular considered a substantial limitation. On two other occasions between December 2002 and November 2003, Ms. Kilgo’s primary care physician completed Cingular’s form, clearly indicating that Ms. Kilgo had a substantially limiting disability.
After the fourth request, Cingular accommodated Ms. Kilgo by moving her desk closer to an exit and restroom, and by splitting her break time so she was able to take breaks more frequently (every 56 minutes). Ms. Kilgo, however, was not happy with these accommodations. First, the restroom closest to her was a left-handed restroom, and she preferred the right-handed restroom that was now farther away. Second, she preferred to have one break every 90 minutes.
Ms. Kilgo also indicated that sometime after requesting accommodations, her co-workers began to harass her. Examples of the alleged harassment included 1) co-workers rejoicing when her desk was moved, following her to and from lunch and the restroom, and whistling as they walked past her desk; 2) Ms. Kilgo receiving a higher number of calls compared to her co-workers; and 3) IT staff erasing data and changing her computer settings.
Issues of the Case
- Whether the accommodations provided by Cingular were reasonable, and whether Cingular wrongly failed to provide an accommodation after Ms. Kilgo’s first three requests.
- Whether the conduct of Cingular and/or Cingular employees constituted discriminatory harassment.
- Whether the conduct of Cingular and/or Cingular employees created a hostile work environment, and
- Whether the conduct of Cingular and/or Cingular employees constituted retaliation.
Arguments & Analysis
1. The district court addressed whether the accommodations made by Cingular were reasonable where Ms. Kilgo would prefer a different accommodation, and whether Cingular wrongly failed to provide accommodations after Ms. Kilgo’s first three requests.
The Court held that while Cingular was obligated to offer a reasonable accommodation, they were not obligated to provide the accommodation of Ms. Kilgo’s preference. Because Ms. Kilgo was physically capable of using the restroom nearest her new desk location and because she failed to present any explanation or evidence as to why the accommodated break schedule was not reasonable, the Court held the accommodations to be reasonable.
The Court noted that denial of Ms. Kilgo’s first request for accommodation was not wrongful as the ADA’s implementing regulations clearly allow employers to require an employee undergo a medical examination prior to offering an accommodation. Regarding the second request for accommodation, the Court determined the facts underlying the gynecologist’s conclusion that Ms. Kilgo was significantly limited in her ability to walk, as compared with members of the general public, were sufficient for a reasonable juror to conclude Ms. Kilgo was substantially limited in her ability to walk, and therefore a qualified individual with a disability under the ADA. Accordingly, Ms. Kilgo’s second request for an accommodation was reasonable. Whether Cingular wrongly failed to provide an accommodation after this request is a question for the jury.
2. Next the Court considered Ms. Kilgo’s claim that the alleged harassment by co-workers constituted discrimination based on her disability.
To prove this, the court applied the Sixth Circuit precedent in Sullivan v. River Valley School District (1999), whereby Ms. Kilgo must demonstrate that: (a) she is a qualified individual with a disability; (b) she can perform the essential job functions with or without reasonable accommodation; (c) she was subjected to an adverse employment decision due to her disability, and; (d) Cingular knew or had reason to know of her disability. The first two factors were not at issue, and the Court looked to whether Ms. Kilgo successfully demonstrated she suffered a materially adverse employment action, that is, decisions or actions that change the terms and conditions of her employment. A materially adverse change must be “more disruptive than a mere inconvenience or an alteration of job responsibilities,” such as termination, demotion, decrease in wage, less distinguished title, material loss of benefits, or significantly diminished material responsibilities. The Court concluded Ms. Kilgo did not demonstrate she suffered an adverse action by Cingular and dismissed this claim.
3. Next, regarding Ms. Kilgo’s hostile work environment claim, she was required to prove that: (a) she is a member of a protected class; (b) she was subjected to unwelcome harassment; (c) the harassment was based on her class membership; (d) the harassment unreasonably interfered with her work performance, and; (e) Cingular is liable.
Because Ms. Kilgo did not submit any evidence demonstrating that the harassment was based on her class membership, her race, sex, or disability, this claim was dismissed.
4. Finally, the Court considered Ms. Kilgo’s retaliation claim, which required she show that: (a) she engaged in a protected activity (i.e. file a discrimination complaint); (b) Cingular knew that she participated in the protected activity; (c) she was subjected to an adverse employment action, and; (d) the adverse action occurred because of the protected activity.
Cingular did not dispute the first two requirements, but did argue Ms. Kilgo was either not harassed or was harassed because of her bizarre behavior, and not because of her disability. The Court applied recent U.S. Supreme Court precedent in Burlington Northern & Santa Fe Railway. Co. v. White (2006), which held that the standard for adverse action in retaliation claims (different from the standard used for adverse action in harassment claims), requires only that the plaintiff show “a reasonable employee would have found the challenged action materially adverse.”
The Court determined it was unnecessary to reach the question of whether a reasonable employee would have found the challenged action materially adverse, because Ms. Kilgo failed to provide evidence that the alleged retaliation occurred because she filed a complaint. Without this evidence Ms. Kilgo could not establish a causal connection between the protected activity and the alleged retaliation, and her retaliation claim was dismissed.
Although Cingular did not provide the accommodations of Ms. Kilgo’s preference, the accommodations provided by Cingular were nonetheless reasonable.
2. Whether Cingular wrongly failed to provide Ms. Kilgo with an accommodation after her second request is a question for the jury.
Where Ms. Kilgo failed to submit evidence that employment actions undertaken by Cingular were “more disruptive than a mere inconvenience or an alteration of job responsibilities,” her discrimination claim was dismissed.
Hostile Work Environment
Because Ms. Kilgo did not submit evidence demonstrating the alleged harassment was based on her race, sex or disability, this claim was dismissed.
Because Ms. Kilgo did not provide evidence that the alleged harassment occurred because of her protected activity, the retaliation claim was dismissed.
The U.S. District Court for the Eastern District of Tennessee recently granted a summary judgment motion in favor of Cingular, thus denying Ms. Kilgo’s sole remaining claim that Cingular wrongly denied her second request for accommodations. The Court found that Ms. Kilgo failed to file her complaint with the EEOC within 300 days of the challenged action as is required by the ADA, and held that the claim is time barred. Ms. Kilgo unsuccessfully argued that because Cingular’s denial of her request was part of an ongoing course of conduct she needed only to show that part of the conduct occurred within the 300 days preceding her filing of the EEOC complaint.
Policy & Practice
An employer is permitted to request a medical examination prior to providing an accommodation, and is not required to provide the accommodation of the employee’s preference as long as the accommodation is reasonable.
An adverse employment action in a harassment claim must be “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Examples of adverse employment actions may include a loss of employment, title, salary, responsibility, or benefits.
Hostile Work Environment and Retaliation
For both of these claims, the plaintiff has the burden to prove a connection between the alleged conduct and the plaintiff’s disability (for hostile work environment) or protected activity (for retaliation).
Timely Filing of EEOC Complaints
The ADA requires that an employee file a complaint with the EEOC within 300 days of the challenged action to avoid any future claims from being time barred. Most states permit complaints to be filed with their own civil rights office and may have longer periods within which to file.
These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time. In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.