Efforts to Reassign Worker with TMJ Speaks Volumes about University's Good Faith

Minneapolis, MN (WorkersCompensation.com) – An employer’s documented efforts to help an employee obtain accommodations can go a long way toward establishing that it engaged in the interactive process.  

In Ellers v. University of Minnesota No. 21-1606 (8th Cir. 05/19/22) it was just such documentation that confirmed the University of Minnesota made a good faith attempt to find a customer service representative a job that didn’t exacerbate her Temporomandibular Joint Syndrome. 

The employee worked in an administrative capacity at a health clinic run by the university. The job primarily involved answering customer questions by phone, in person, and by email, and resolving customer issues. 

Because of her TMJ, the customer service representative had jaw pain that affected her ability to speak. She sought a job within the university that could accommodate her need to significantly restrict the time she spent speaking, including having 15 minutes of non-speaking work before her lunch break. She also required a position that would limit her need for facial movements and expressions, and a four-hour workday one to two times per week for medical appointments and to address TMJ flare-ups. 

After the university unsuccessfully attempted to work with her to find a reassignment, the customer service representative sued it under the ADA for failing to engage in the interactive process. The District Court granted the university summary judgment, and the administrator appealed. 

The 8th U.S. Circuit Court of Appeals explained that to establish that an employer failed to participate in an interactive process, an employee must show: 1) the employer knew about the employee's disability; 2) the employee requested accommodations; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith 

The court, focusing on the third element of the claim, rejected the employee’s argument that the university failed to help her find another job. 

The court pointed out that the university had an employee from its job center reach out to the customer services representative to schedule a meeting about vacant positions.  

In addition, the university collaborated with the customer service representative to develop a lengthy questionnaire about positions that interested her that was designed to establish whether the jobs would be suitable, given her restrictions. The university forwarded the questionnaire to the relevant hiring supervisors. “The University also told [the administrator] that if she was concerned about positions being filled before it could obtain information about the positions, she should apply for the jobs and withdraw her application if she did not qualify,” the court wrote. 

Citing the university’s efforts to help the employee find a position that would limit her need to speak and satisfy her other restrictions, the court held that no reasonable jury could find that the university failed to make a good-faith effort to accommodate her.  

The court noted that the university's failure to inform the employee immediately regarding whether she qualified for the jobs she identified was not evidence of bad faith. “The University had to reach out to each department to obtain the information, and it is likely that determining whether a job was consistent with [the employee’s] extensive work restrictions would have been difficult and time consuming,” the court wrote. 

Accordingly, the court affirmed the District Court’s ruling in the University’s favor.