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Supervisor’s Testimony Rebuts Written Job Description on 35 Pound Lifting Requirement Being Essential Job Function

By on November 23, 2016 in ADA with 0 Comments

Kenneth Camp worked for 38 years for Bi-Lo, LLC., a grocery store in Tennessee, as a stock clerk.  He worked with two others stocking the grocery with product each night.  In March 2012 the Store Director, Mr. Gilreath, arrived at the store and noted that the three stock-shift clerks had not finished shelving all the product.  He asked why not.  The supervisor, Mr. Bishop, said that Camp had a bad back and the other two workers had to pitch in to help with the heavy stuff.  Bishop also said that “it was hard for them to get done with Camp on restrictions.”

Since a teenager Camp suffered from scoliosis but he had always worked with this medical condition.  Gilreath never knew about the back condition until March 2012. He approached Camp and told him the company was thinking of putting him on light duty.  The HR Director asked Camp if he felt he could do the job.  Camp said, “Yes, I can still do everything.  I know what I can lift and what I can’t, and I can do all the other things except lift the real super heavy items.”

Camp was given a job description which was written in 2007, almost 30 years after Camp began working for the company, which identified lifting requirements, including being able to safely lift over 35 pounds.  The job description also said he had to be able to lift at least 20 pounds constantly and 20-60 pounds frequently. On April 24, 2012 the company advised Camp he would have to take a leave of absence. He was instructed to use his remaining sick leave and vacation days, followed by short-term disability in order to reach his 62nd birthday.  At that point he could retire.

Camp wanted to return to work after his short-term disability ended but the HR Director said he would have to be cleared by his doctor to lift 60 pounds.  Camp’s leave was extended several times but on October 12, 2012, he was advised he would be terminated if he did not provide a fitness for duty form from his doctor.  Camp requested that he be permitted to return to work as he had done for many years with his two co-workers lifting the heaviest items.  The company refused this request and terminated his employment.

Camp sued and argued that the company discriminated against him on the basis of his disability.  He lost at the federal court level and appealed. The issue on appeal came down to whether heavy lifting was an essential job function.  Bi-Lo argued that the 35 pound lifting requirement was an essential job function.  Camp and his two co-workers testified that they had never seen this 2007 job description or any other job description during their long period of employment.  Bishop, who was Camp’s immediate supervisor, testified that “heavy lifting was not an essential function of Camp’s job, and Mr. Camp did his job fine.”  Bishop also said that heavy lifting was only a very small part of the job. The other co-worker said the same thing.  Both co-workers said that the way they worked was Camp would put items on the shelves while the other two men would carry the heavier items so there was no loss of efficiency.  In essence, the two workers made accommodations for Camp’s inability to lift very heavy items.

Given this testimony, the Sixth Circuit Court of Appeals said that a supervisor’s testimony may rebut the written job description regarding what constitutes an essential function.  The Court said, “This is not a case involving a firefighter, nurse, police officer or a military person where the inability to lift the ‘required’ weight could put an innocent person’s life at risk or cause ‘undue hardship’ or even endanger a colleague.” The Court said that summary judgment should not have been granted for the employer in this case because there was enough evidence for a jury to decide that the ability to lift more than 35 pounds is an essential function of the stock-clerk job. The Court further noted that the record showed Camp was meeting all job expectations, and his termination stemmed from only one incident when the crew did not get their work done on time. There was no proof by the company of any other instances where the 35 pound requirement could be shown to explain why there were delays in getting work done. “Bi-Lo has presented no evidence that accommodating Camp’s disability caused undue hardship to his coworkers.”

This case can be found at Camp v. Bi-Lo LLC, 2016 U.S. App. LEXIS 19053 (6th Cir. 2016).   It is a case worth studying.  When it comes to deciding what is an essential job function and what is a reasonable accommodation, this case emphasizes the importance of considering not just the written job description says but what actually happens in the workplace.  It also shows how important it is to speak with supervisors on the job before making termination decisions. Ironically, in this case the plaintiff’s own supervisor turned out to be the key witness against the company.

 

           

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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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