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In a published opinion, the Fifth Circuit has held that an employee’s poor performance in a light-duty position can relieve the employer from any further obligation to find a reasonable accommodation under the Americans with Disabilities Act (ADA). This opinion highlights the importance of the interactive process, and emphasizes that both the employer and the employee must put forth a good faith effort to make an accommodation work.

In Dillard v. City of Austin, Texas, Dillard was injured on-the-job, and then took 12 weeks of Family and Medical Leave Act (FMLA) leave. After his FMLA leave expired, the City continued his leave through a 180-day “Return to Work” program. At the end of that program, Dillard was still unable to return to work, but the City again allowed him to remain on leave. Nearly a year after the accident, Dillard was medically cleared for “limited duty” or “administrative duty” work and sought to return to work.

The City offered Dillard a temporary position as an administrative assistant. Dillard, a manual laborer, expressed doubt about whether he would be able to do the job, but accepted the position. Because he had no secretarial experience, the City offered him several opportunities for typing classes and computer training, but Dillard failed to sign up. Instead, he admitted that he frequently came to work late and left early. When he was at work, he admitted that he made personal calls, played computer games and surfed the internet. He let his supervisors know that he was unhappy in the administrative position and asked to be moved to a different job more suited to his experience. Instead of moving Dillard to a different position, the City terminated him due to his poor performance.

Dillard sued the City under the ADA for discriminatory termination and failure to accommodate. He claimed that the City failed to act in good faith to find a more suitable position to accommodate his disability once it became obvious that the administrative position was a poor fit.

The Fifth Circuit disagreed and affirmed the lower court’s grant of summary judgment in the City’s favor. The Court found that Dillard’s admittedly poor job performance in the light-duty position was not just a legitimate non-discriminatory reason for his termination, but was also evidence that the plaintiff – not the City – caused a breakdown in the interactive process to accommodate his disability. The Court emphasized 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 stated that once Dillard accepted the secretarial position, “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.” Because Dillard failed to make an effort to succeed in the light-duty position, the Court found that the City was under no further obligation to try to accommodate his disability.

What Should Employers Do?

The Fifth Circuit’s decision should reassure employers that if they are acting in good faith, they are fulfilling their responsibility under the ADA. In providing reasonable accommodations, employers should do what they can to help the employee succeed but do not have to put up with poor performance.