From Cooper v. Dolgencorp, LLC, determined Thursday by the Sixth Circuit, in an opinion by Choose Mathis, joined by Judges Moore and Murphy:
In 2016, Cooper started working for CCCI as a supply merchandiser [who delivered products to customer stores]. Previous to CCCI hiring Cooper, he had already been identified with Tourette Syndrome. Tourette Syndrome causes undesirable, involuntary muscle actions and sounds referred to as “tics.” For Cooper, his Tourette Syndrome has a uncommon tic symptom referred to as coprolalia. The situation causes Cooper to make use of obscene and inappropriate vocalizations, together with profanity (bitch) and a racial slur (nigger)….
This led to repeated buyer complaints, and ultimately led Cooper’s employer (Coca-Cola Consolidated, Inc., or CCCI) to reassign Cooper to a lower-paying non-customer-facing warehouse place, $18.96/hour as a substitute of $20.38/hour. (Cooper’s physician had concluded that Cooper may work as a driver, however “Must be current with one other driver,” presumably as a result of that was the one manner he may keep away from buyer contact.)
Cooper sued beneath the Individuals with Disabilities Act, beneath which
(1) The plaintiff bears the burden of creating that she or he is disabled. (2) The plaintiff bears the burden of creating that she or he is “in any other case certified” for the place regardless of his or her incapacity: (a) with out lodging from the employer; (b) with an alleged “important” job requirement eradicated; or (c) with a proposed affordable lodging. (3) The employer will bear the burden of proving {that a} challenged job criterion is important, and subsequently a enterprise necessity, or {that a} proposed lodging will impose an undue hardship upon the employer.
The court docket concluded that CCCI was entitled to abstract judgment:
[Cooper] argues that he was in any other case certified for the supply merchandiser place with out an lodging. If that is true, then CCCI’s choice to switch Cooper to the warehouse due to his incapacity was discriminatory….
The events don’t dispute that Cooper’s Tourette Syndrome with coprolalia qualifies as a incapacity….
We should reply two questions to find out whether or not Cooper was in any other case certified for the supply merchandiser place with out an lodging. Was glorious customer support a vital perform of Cooper’s place at CCCI? In that case, may Cooper carry out that perform with out CCCI altering his job duties in any manner?
We reply the primary query within the affirmative—glorious customer support is a vital perform of Cooper’s particular supply merchandiser place. As a reminder, not all job capabilities are important. Such capabilities “could also be thought of important as a result of (1) the place exists to carry out the perform, (2) a restricted variety of workers can be found that may carry out it, or (3) it’s extremely specialised.” Congress has instructed courts to think about “the employer’s judgment” in figuring out the important capabilities of a job. A written job description is “proof of the important capabilities of the job.”
CCCI identifies “[e]xcellent buyer providers expertise” in its written job description for the supply merchandiser place as a part of the information, expertise, and skills essential to carry out the job. And, crucially, Cooper stipulates that glorious customer support was a vital perform of the supply merchandiser place. Our evaluation of the primary query ends there.
We subsequent contemplate whether or not Cooper may present glorious customer support to CCCI’s clients with out an lodging…. An affordable jury couldn’t discover that Cooper may present glorious customer support to CCCI’s clients in his position as a supply merchandiser with out an lodging. Of specific significance, Cooper’s personal physician famous that Cooper wanted an lodging to carry out his job duties. When a plaintiff’s personal physician—not merely the defendant employer—concludes that the plaintiff can not carry out his job with out an lodging, the plaintiff probably can not set up that he’s in any other case certified to carry out the job with out an lodging.
Cooper’s incapacity, furthermore, triggered him to vocalize racist and profane phrases within the presence of others within the shops of CCCI’s clients. At numerous occasions throughout his employment, CCCI’s clients complained concerning the language he used whereas delivering CCCI’s merchandise. In actual fact, Cooper acknowledges most of the buyer complaints made towards him in his amended criticism….
Cooper makes a number of arguments in response…. [Among other things,] Cooper argues, counting on Taylor v. Meals World, Inc. (eleventh Cir. 1998), {that a} materials factual dispute exists relating to whether or not he may present glorious service to CCCI’s clients with out offending them. Taylor doesn’t assist Cooper. In Taylor, a minor, who had been identified with Asperger’s dysfunction that triggered him to interact in echolalia (repetitive speech), labored as a clerk for Meals World bagging groceries and taking groceries to clients’ automobiles. Meals World terminated the minor after receiving complaints from clients concerning the minor “talking loudly and generally asking clients private questions.” The Eleventh Circuit reversed the district court docket’s grant of abstract judgment to Meals World, discovering there was a factual dispute about whether or not the questions the minor posed to clients have been offensive. However right here, there isn’t a affordable dispute that Cooper’s use of racist and profane language was offensive.
This case is extra like Ray v. Kroger Co. (eleventh Cir. 2003) ….. In Ray, the plaintiff, like Cooper, had been identified with Tourette Syndrome with coprolalia. Ray labored as a grocery clerk for Kroger, which positioned him in common contact with Kroger’s clients. The job required Ray to work together with clients with out offending them. Ray was unable to take action as a result of he used decipherable racial slurs, which offended some clients. The Eleventh Circuit discovered that abstract judgment in Kroger’s favor was warranted as a result of Ray couldn’t carry out a vital perform of his job….
The court docket additionally concluded that there have been no non-customer-facing supply routes out there, so assigning Cooper to such a route would not have been a viable affordable lodging.
Jeffrey D. Patton of Spilman Thomas & Battle, PLLC represents CCCI.
