It Takes Two to Tango: Third Circuit Reminds Employees of Their Reciprocal Obligations in the Interactive Process

On March 31, 2020, the Third Circuit Court of Appeals affirmed the District Court’s dismissal of discrimination, retaliation, and wrongful termination claims filed by an ex-accountant of a local board of health. In Petti v. Ocean County Board of Health, the Third Circuit affirmed the District Court’s decision dismissing the employee’s claims under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII), as well as the employee’s common law claim for wrongful termination, finding that no discrimination or retaliation occurred, and that the wrongful termination claim was based on the same facts as the discrimination and retaliation claims.

Facts

B. Janet Petti worked as an accountant for the Ocean County Health Department (OCHD) since 2004. In November 2012, construction commenced on the OCHD campus, at the building next to where Petti worked. On multiple occasions following commencement of construction, Petti expressed to OCHD staff that construction debris containing asbestos would get into her building and upset an unidentified medical condition that she had.

The OCHD made several accommodations for Petti, due to her concerns. In December 2012, she was temporarily transferred to a different building away from the OCHD campus, while OCHD evaluated the safety of her workspace. OCHD also provided Petti with information about safety testing that had been conducted previously on the site and information about her building’s separate ventilation system. OCHD subsequently had an external consultant examine the construction site, and Petti was provided with a report indicating that it was free from external debris or other hazards. Still, Petti filed a safety complaint with New Jersey’s Public Employees Occupational Safety and Health Program (PEOSH) expressing concerns about air quality and debris at her workplace.

Petti was returned to her usual work location in early January 2013. Upon her return, Petti began submitting doctor’s notes explaining why she was unable to work at that location. In February 2013, OCHD approved Petti’s request for medical leave for 12 weeks, backdated to January 2, 2013. While Petti was on medical leave, OCHD hired another outside consultant to do mold testing, which revealed that the room where Petti worked, and the surrounding rooms were in the normal range. OCHD also cooperated with an unannounced PEOSH investigation, in which air quality tests were conducted of Petti’s workspace, in response to her safety complaint.

Despite the mold testing coming back in the normal range, as well as the PEOSH investigation finding no violations, OCHD also offered to move Petti’s work location away from the windows in her office, to provide Petti with a respirator or particulate dust mask while at work, and to install an air scrubber in her department “out of an abundance of caution.” Petti failed to respond to OCHD’s attempts to meet and talk to her about modifications, insisting that the “only solution” was to move her to another building outside her department. Petti also failed to demonstrate or submit any evidence of how her concerns could be accommodated elsewhere when other OCHD buildings were also undergoing construction.

Petti was thereafter directed to return to work at the expiration of her medical leave, but she did not. A few weeks later, Petti submitted yet another doctor’s note stating that she could not wear a respirator for extended periods, due to a neck injury and latex allergy. In response, OCHD’s legal counsel requested a meeting with Petti, but she did not respond.

Petti’s employment was ultimately terminated. This action followed, alleging discrimination, retaliation, and wrongful termination, which was dismissed by the District Court in favor of the OCHD.

District Court’s Decision

For Petti to prevail on her disability discrimination claim, she had to show that (1) she is disabled; (2) she is otherwise qualified to perform the essential functions of her job, with or without reasonable accommodations by her employer; and (3) she has suffered an adverse employment action as a result of her disability, including her employer’s refusal to make reasonable accommodation for her disability. Once a request for reasonable accommodation is made, the employer must engage in a “flexible interactive process” with the employee to assist in seeking accommodations. The Court emphasized that both the employer and the employee have a duty to cooperate in this process in good faith. The District Court found that OCHD's consistent good faith efforts to respond to Petti's requests regarding the safety of her workplace, given the medical conditions she represented, entitled OCHD to summary judgment.

Third Circuit’s Decision

On appeal, the Third Circuit affirmed the District Court’s decision finding that OCHD made a good faith effort to respond to Petti’s requests for accommodation, and that Petti broke down the interactive process by failing to respond to OCHD’s request for a meeting to discuss proposed accommodations. Therefore, the Court upheld the dismissal of Petti’s ADA claim.

The Third Circuit also found that Petti could not prevail on her Title VII retaliation claim, as she could not prove that she would not have been fired but for her filing the complaint with PEOSH.

Finally, the Third Circuit held that Petti’s wrongful termination claim would not be protected by any interest beyond the ADA and Title VII, as it is based on the same facts as her discrimination and retaliation claims, and therefore, must be dismissed.

Bottom Line

Both employers and employees must participate in the interactive process, the obligation does not lie solely with the employer. Courts will look to see that an employer made a good faith effort to accommodate an employee. A good faith effort does not require that the employer provide every accommodation the employee requests. Moreover, when an employee refuses to even talk about any other alternatives, the employee may also lose the right to an accommodation. Thus, an employee’s refusal to participate in good faith in the interactive process is considered a break down in the interactive process and will not be held against an employer acting in good faith.

Employers should be sure to document any and all discussions with and accommodations offered and made for employees requesting disability accommodations.

For more information regarding this decision and best practices for defending claims of discrimination, retaliation, or wrongful termination, please contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group at jpetrella@genovaburns.com or Dina M. Mastellone, Esq., Chair of the firm’s Human Resources Counseling & Compliance Practice Group at dmastellone@genovaburns.com, or 973-533-0777.