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Court Validates Firing of City Worker While on Alternative Duty for Work-Related Injury

By on December 7, 2016 in ADA with 0 Comments

Derrick Dillard injured his back and shoulder in a work-related car accident in March 2011.  He was unable to perform his previous duties as a Street and Drainage Maintenance Senior for the City of Austin, Texas.  He took FMLA leave and then placed in the City Return to Work Program, which was designed to help employees like Dillard find alternative work for a maximum of 180 days in a year.

Dillard exited the Return to Work Program in January 2012. During the entire period he was enrolled in the program, the City was unable to place him in any position because he remained on a “no duty status.”  The City continued to allow him to remain on leave. Between late January and late April 2012, Dillard was released by his doctors to perform “limited duty” or “administrative duty” work.  The City offered him “administrative work” from May through October 2012.

Dillard lacked the three years of clerical or secretarial experience for an administrative assistant position, so the City offered him on-the-job typing and computer training.  Dillard’s supervisor testified that she repeatedly told Dillard to complete more training and showed him how to sign up for more training, but Dillard did not do so.  He was found playing computer games, surfing the internet, sleeping, making personal calls or looking for other positions while he was supposed to be training.  He missed work without proper notice, came late and left early, and lied about his time.  He attended work only 74% of the time over a 21-week period.  The City gave him an unsatisfactory rating.

For his part Dillard admitted that his lack of typing skills made it impossible for him to complete the one assignment he was given.  He asked Human Resources to give him another position.    Meanwhile, Dillard’s doctors were increasing his capacity to perform certain lifting and physical activities.  The City scheduled him for a pre-termination meeting based on his poor performance while on administrative duty.  The Director noted that Dillard was unapologetic for his inappropriate behavior and admitted that comments about his poor performance were accurate. The City fired Dillard on October 26, 2012.

Dillard sued for discrimination under the ADA and argued that the City should have considered him for vacancies across all departments, not just the Public Works Department, once it became obvious that he lacked the skills of an administrative assistant.  The lower court disagreed and noted that the breakdown in the interactive process was caused by Dillard’s failure to make a good faith effort to make the administrative position work.

The Fifth Circuit Court of Appeals held that the City did not fire Dillard because of any disability but because he was frequently late, used work time to play games, and failed to take advantage of training opportunities.  The Court conceded that the City had a duty to make reasonable accommodation and engage in the interactive process. “Dillard’s position neglects that the interactive process is a two-way street; it requires that employer and employee work together, in good faith, to ascertain a reasonable accommodation.”  The Court said that the City made a reasonable accommodation with the administrative assistant position.  “At this point, the ball was in his court; it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.”  The Court felt it was pivotal that the City offered him training which Dillard neglected.

The case can be found at Dillard v. City of Austin, Texas, 837 F.3d 557 (5th Cir. 2016). It is an interesting case because there are so few published cases where the plaintiff is fired while on alternative duty and while performing inadequately during alternative duty.  Clearly the case’s reasoning makes sense:  when an employee’s job performance is grossly sub-par during alternative duty, and where the employee does not take advantage of offered accommodations, the employee has no argument that his termination is a violation of the ADA.

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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