The Third Circuit in an ADA case holds that offering a half-blinded sales clerk the option of daytime-only shifts may be considered a reasonable accommodation. It reverses summary judgment, concluding that a jury could find in this case that the employer caused the breakdown of the interactive process.
Colwell v. Rite Aid of Pennsylvania, Inc., No. 08-4675 (3d Cir. Apr. 8, 2010): The panel summarizes the facts —
“In the summer of 2005, Colwell was diagnosed with ‘retinal vein occlusion and glaucoma in her left eye,’ and eventually became blind in that eye. Colwell . . . . Although able to see out of her right eye and to perform her duties at work, in mid-September 2005 Colwell informed her supervisor Susan Chapman that her partial blindness made it dangerous and difficult for her to drive to work at night. Colwell claims, and Rite Aid does not dispute, that public transportation was not an option for her because bus service ended at 6 p.m. and there were no taxis. Nonetheless, Chapman told Colwell that she would not be assigned only to day shifts because it ‘wouldn’t be fair’ to the other workers.”
Frustrated in her attempts to get the company to grant her day-time only shifts, Colwell resigned.
The panel reverses summary judgment on the reasonable acommodation claim. It holds, first, the panel holds (as did the district court) that employee presented a genuine issue of material fact that she was significantly limited in the major life activity of seeing. “Rite Aid appears to argue that Colwell’s inability to drive at night is not relevant to her ability to see because some courts have found that driving, and driving at night in particular, are not major life activities. It may be that driving and driving at night are not major life activities, but that is not the question presented here, which is whether Colwell’s difficulty in driving at night, and her description of why that exercise is dangerous for her, are relevant to the extent to which her ability to see is restricted.”
Second, it holds that the plaintiff in this case requested an accommodation (not being required to work at night).
Third, it holds that “as a matter of law  changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates.” It cites 42 U.S.C. § 12111(9)(B), which endorses “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” In particular, commuting to work under certain circumstances may have to be accommodated, if reasonable, such as where “the requested accommodation is a change to a workplace condition that is entirely within an employer’s control and that would allow the employee to get to work and perform her job. See 29 C.F.R. § 1630.2(o)(1)(ii)-(iii).”
Finally, the panel holds that the issue of whether the employer failed to carry out the interactive process:
“A reasonable jury, however, could conclude that Rite Aid failed in its obligations to engage in the interactive process required under the ADA. The record supports a reasonable inference that Colwell told [manager] Chapman that she could not always count on her grandson to drive her to work, and that the solution was only a temporary one. Moreover, after Colwell and Chapman spoke, Colwell had [union representative] Karasek contact Chapman to seek a change in Colwell’s shifts but Kasarek found Chapman immovable in her resistance to any schedule change for Colwell. Colwell’s resignation note also implied that she was unhappy with the status quo of her scheduling and a jury could reasonably infer that Colwell had continued to communicate that unhappiness to Chapman. Chapman’s agreement to meet with Karasek and Colwell would not compel a reasonable jury to find that Rite Aid was willing to negotiate in good faith. Chapman had flatly refused all of Colwell’s overtures to obtain an accommodation, and Rite Aid does not assert that Chapman was willing to offer any accommodations at the meeting.”
Nonetheless, the panel also affirms summary judgment on plaintiff’s other claims that she was constructively discharged and suffered retaliation: “In support of its determination that Colwell had not provided a persuasive claim of constructive discharge, the District Court stated that because Colwell did not appeal to higher levels of management and did not attempt to reschedule the meeting between Chapman and the union representative, she made no reasonable effort to explore alternatives before electing to resign . . . For the reasons set forth above, we will affirm the District Court’s grant of summary judgment on Colwell’s claim of constructive discharge.”