Employer's Multiple Attempts to Accommodate A Disabled Employee Deemed Sufficient "Good Faith" Efforts to Accommodate Disability

Sharbano v. Northern States Power Company - Eighth Circuit Court of Appeals

Facts:  James Sharbono ("Sharbono") worked at Northern States Power Company ("Northern").  In 1991, he was injured by an electric shock while at a jobsite.  As a result, he suffered damage to his left foot that required amputation and surgical reconstruction.  After rehabilitation, Sharbono returned to work as a journeyman lineman.  Before 2008, Northern had a policy that required certain employees facing hazardous work conditions to wear "safety-toe footwear" that met the requirements of American National Standards Institute standard Z-41.  Northern did allow an exception based on a "statement from the employee's doctor stating he/she cannot wear safety toe footwear."  Sharbono did not wear a steel-toed boot prior to 2008.  However, as of 2008, Northern's policy no longer provided for exceptions and Sharbono was required to wear steel-toed boots.  Through a disability consultant, Northern offered Sharbono several suggestions to help mitigate the impact of the steel-toed boots. Sharbono obtained modified boots but they were not compliant with the required standard.  After he started to wear steel-toed, compliant boots, Sharbono began to experience discomfort in his left foot.

In 2011, Sharbono began using his sick leave to cover absences from work.  Sharbono requested accommodation from Northern for his foot impairment in an April 2012 meeting with a supervisor.  He submitted a doctor's note indicating it was necessary for Sharbono to cease wearing the steel-toed boots but received no response from his supervisor.  In June 2012, Sharbono's union requested Northern waive its steel-toed boot policy.  In August, Northern denied Sharbono's request.  Northern indicated it could not accommodate the request because it "cannot eliminate the potential foot hazards that are present in the daily work of a lineman."  In October, Northern offered to help Sharbono find another job at the company.  Northern also informed Sharbono that he was eligible under the collective bargaining agreement for "disability retirement benefits".  After Sharbono chose to retire and receive benefits, Northern attempted to determine if a modified steel-toed boot would be compliant but ultimately found it would not.

Sharbono proceeded to file suit against Northern and alleged violations of the Americans With Disabilities Act ("ADA") and the Minnesota Human Rights Act.  The district court granted summary judgment in favor of Northern.  Sharbono appealed solely on the grounds that Northern failed to accommodate his disability.

Holding:  The ADA stipulates that employers are prohibited from discriminating against qualified individuals because of a disability.  Discrimination under the ADA can include "not making reasonable accommodations to the known physical or mental limitations" of an employee, unless an employer can "demonstrate that the accommodation would impose an undue hardship on the operation of the business."  In this case, for Sharbono to prevail, it must be shown that Northern "did not make a good faith effort to assist the employee in seeking accommodations."

Northern's "Inexcusable Delay"

Sharbono argued that Northern engaged in an "inexcusable delay" because the company did not timely respond to his request for an accommodation in October of 2011.  However, the Court of Appeals pointed out that Sharbono had insufficient evidence to establish that he actually made a request at that time.  Prior Eighth Circuit precedent established that an employer is not required to undertake the interactive process until the employee makes a request for an accommodation.  Given that the earliest request appeared to be in April of 2012, the Court found this argument lacked merit.

Northern's Abandonment of the Interactive Process

Next, Sharbono claimed that Northern prematurely abandoned the interactive process in so much that while an orthotics company notified Northern in February of 2013 that a boot could not be produced that would meet requirements, Northern failed to pursue other options.  However, the Court disagreed with Sharbono's claim and pointed out that when Northern was informed by an expert in the industry that a suitable steel-toed boot could not be produced, it was reasonable for the company to cease its efforts.

Northern's Regulated Boot Requirement

Finally, Sharbono argued that Northern erroneously claimed that federal regulations required that specific steel-toed boots be worn and that Northern's alleged misguided reliance on the regulation showed its lack of good faith.  In this case, the Court noted that Sharbono never disputed Northern's interpretation of the regulation during the interactive process and Northern made a good faith effort to secure a boot that would meet the specific standards for safety footwear.  Based upon the evidence in the record, the Court was unswayed by Sharbono's third point of contention.

Judgment:  The Eighth Circuit Court of Appeals affirmed the district court's granting of summary judgment in favor of the employer on the grounds that sufficient evidence existed to establish the company attempted to accommodate a disabled employee's accommodation request, despite the employee being unable to wear sufficient steel-toed boots to satisfy a federal regulation for footwear in the workplace.

The Takeaway:  Although this was a shorter opinion from the Court, I wanted to highlight it for a specific reason.  The facts in the record established that the employer went above and beyond in trying to accommodate the disabled employee.  Not only did Northern attempt to accommodate Sharbono during his employment, but they also kept trying to find an accommodation even after he elected to retire with disability benefits.  Employers take note, this is a good example of an employer being proactive and attempting, multiple times, to accommodate a disabled employee.

Majority Opinion Judge:  Judge Colloton

Date:  September 6, 2018

Opinion:  http://hr.cch.com/ELD/SharbonoNorthern090618.pdf