Failure to Accommodate Claim Permitted Where Employer Did Not Consider Reassignment to Vacant Position

Gomez v. Con-Way Cent. Express Inc., 2009 U.S. Dist LEXIS 23190, No. 06-cv-5352 (D.N.J., March 24, 2009) – The plaintiff, a truck driver, was responsible for loading and unloading freight frequently weighing up to 50 pounds and occasionally more than 75 pounds. After aggravating a pre-existing back problem, he was given a light duty job paying significantly less. The plaintiff eventually went out on leave, and over the course of the next two years, he and his employer engaged in regular discussions regarding the extent of his disability and the employer’s ability to accommodate his condition. When he failed to return to work after his leave expired, he was terminated.

The plaintiff brought suit claiming failure to accommodate his disability. The court denied the employer’s motion for summary judgment, finding a reasonable jury could conclude that the employer failed to act in good faith during the interactive process, even though the employer assigned the plaintiff to light duty, and subsequently placed him on leave of absence, because the employer failed to reassign him to a vacant position that he could have performed. Although the plaintiff did not specifically request reassignment until two months before his termination, the court reiterated that both parties have a duty to “assist in the search for appropriate reasonable accommodations and to act in good faith.”

As this case reinforces, employers must remember to be thorough and thoughtful when engaging in the interactive process with employees, and consider all reasonable accommodations that might apply to the circumstances of each employee.

Note: This article was published in the April 2009 issue of the New Jersey eAuthority.