?A market director of Lowe’s Home Centers LLC did not have an Americans with Disabilities Act (ADA) claim when he could not find an available position within his restrictions that he could perform after being diagnosed by his doctor as being permanently disabled, according to a federal district court. Lowe’s initially accommodated him. But after his restrictions were designated as permanent, it informed him he had a month to find another job for which he was qualified and that fit within his restrictions. The plaintiff could not find such a position at his level and declined to be demoted.
The plaintiff began working at Lowe’s in 1993. From 1994 to 2008, he climbed the corporate ranks and was eventually promoted to the position of market director of stores in 2008. Market directors are ultimately responsible for overall store performance within their region, with a primary focus on sales and profitability. They must frequently visit the stores in their market and do a walkthrough to evaluate the merchandise and appearance of the store, talk with the staff, and advise them on how to enhance sales and profits.
During each visit, the plaintiff would spend approximately one hour in the office reviewing reports with the store manager and the remaining two or three hours on the floor. He usually visited two stores in one day and spent eight to 10 hours per day in the stores and one to two hours per day driving between stores, averaging 50 to 60 hours of work per week.
In December 2014, the plaintiff had knee replacement surgery on his right knee after three prior knee surgeries. Upon his return to work in April 2015, his doctor recommended that he be restricted to eight-hour days, including travel, and four hours of standing and walking. Lowe’s agreed to the restrictions and offered him the use of a mobility device in performing his job duties, which the plaintiff did not want to use. This accommodation was approved for 60 days. The Lowe’s Accommodations Team memorialized the restrictions and accommodations in writing.
In June 2015, the Accommodations Team again reviewed the plaintiff’s accommodations and extended them for a period of six months. But in July 2015, the plaintiff’s doctor recertified the plaintiff’s restrictions and noted that he had issued the plaintiff a permanent “disabled parking” permit form. A member of the Accommodations Team forwarded the paperwork to a regional HR director and the vice president of store operations for the plaintiff’s region.
A member of the Accommodations Team contacted the plaintiff and his doctor to inquire if the plaintiff’s restrictions were permanent, and the plaintiff said they were. Because the restrictions were permanent, the HR director and vice president told the plaintiff he had 30 days to find another position that fit within his restrictions. The plaintiff was to look for positions of interest, and Lowe’s would coordinate with the Accommodations Team and the hiring managers and would network internally to locate additional opportunities. If the plaintiff needed more time to search for jobs, Lowe’s would place him on a leave of absence to give him more time to search.
The plaintiff identified and applied for three internal positions but could have qualified only for a market director position in the Lawn and Garden department. Because he did not have lawn and garden experience, Lowe’s informed him that he would have to accept a demotion to a merchandizing manager position and then work back up to market director in that department. The plaintiff refused a demotion.
When the plaintiff could not find another position, he took a leave of absence from Lowe’s. His doctor certified that leave was the only available accommodation for the plaintiff at that time. In November 2015, the plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission. He received disability benefits until January 2016 and, in June 2016, applied for and received early retirement from Lowe’s.
After retiring, the plaintiff contended that his knee had improved, and, in January 2017, his doctor released him from further examination. In March 2017, the plaintiff obtained employment as a part-time paramedic and was able to fulfill the physical requirements of that job.
On Dec. 27, 2016, the plaintiff filed suit against Lowe’s for disability discrimination and retaliation in violation of the ADA and age discrimination. Lowe’s moved for summary judgment.
[SHRM members-only toolkit: Accommodating Employees’ Disabilities]
The court found that the ADA does not require an employer with a nondiscrimination hiring policy to assign an employee to a permanent light-duty position or to reassign the plaintiff to an available position. Rather, Lowe’s could require the plaintiff to find another position for which he was qualified. Thus, the court granted Lowe’s motion for summary judgment and dismissed the case.
Elledge v. Lowe’s Home Centers, LLC, W.D.N.C., 5:16-cv-00227 (Dec. 20, 2018).
Professional Pointer: An employee’s rights often differ when he or she is experiencing long-term, rather than short-term, physical restrictions. Many courts have held that an employer can require an employee with permanent restrictions to find another position for which he or she qualifies.
Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.
[Visit SHRM’s resource page on the Americans with Disabilities Act.]
