Employer Need Not Hold Position Open for Disabled Employee on Workers’ Comp Leave


by Roger Miller

Miller, Roger 
rmiller@mcgrathnorth.com
(402) 341-3070

James McPherson began working for O’Reilly Auto Parts in 1986 in a sales position.  By 1990 he had been promoted to Territory Assistant Sales Manager.  Eleven years later, in September 2001, McPherson injured his back on the job and filed a workers’ compensation claim.  Although he attempted to continue to work for a period of time, he was placed on a medical leave of absence in January of 2002.  He subsequently had back surgery, and was not released to return to work until July.

During the interim, O’Reilly reassigned McPherson’s sales territory to other managers and promoted another employee to his Territory Assistant Sales Manager position, even though McPherson’s immediate supervisor told him his job would be protected and that he could return to it following surgery and rehabilitation.  It should be noted that, in this case, McPherson did not contend there was any violation of the FMLA which requires an employer to, in most cases, return an employee on an FMLA leave to their former position.

When McPherson was released to return to work, he was still subject to significant physical restrictions which prohibited prolonged sitting or standing, repetitive bending or stooping, or lifting of more than 50-60 pounds “occasionally.”  Those restrictions were deemed permanent.

O’Reilly offered McPherson an alternate position which was available, but which would require him to stand five to six hours during an eight-hour shift, bending or stooping for one to two hours per day, and lifting and carrying 51-75 pounds frequently.  McPherson asked whether accommodations could be made to the job’s physical duties and was told accommodations were possible, although no written agreement or memorandum on the topic was ever created.  McPherson’s physician then wrote a letter to O’Reilly stating he would not release McPherson to work because of the physical demands were inconsistent with the restrictions which the doctor had imposed.  O’Reilly then terminated McPherson’s employment as there were no other positions which matched McPherson’s restrictions, a statement with which McPherson took issue.

McPherson brought suit alleging discrimination under the Americans with Disabilities Act.  He claimed O’Reilly’s termination of his employment, rather than offering him vacant positions, meant that O’Reilly regarded him as disabled.  In addition, he alleged that, by disclosing confidential medical information about him to a third party, O’Reilly had also violated the ADA.  In this regard, McPherson alleged O’Reilly told prospective employers of McPherson that he was no longer employed because he was disabled.

After a Federal District court in Missouri granted Summary Judgment to O’Reilly, McPherson appealed to the United States Court of Appeals for the Eighth Circuit.  On appeal, McPherson did not contend that he was qualified to perform the essential functions of the alternate position which he was offered by O’Reilly, or that O’Reilly was obligated to restore him to the sales position he held prior to his injury.  Rather, the action which he alleges to be discriminatory is O’Reilly’s terminating him, rather than offering him some vacant position because, according to McPherson, O’Reilly regarded him as permanently disabled.

In affirming the grant of Summary Judgment to O’Reilly, the Court noted that McPherson had produced no evidence that he would have been able to perform any of the essential functions of the positions which he contended were vacant.  Furthermore, although he asserted he knew there were vacancies for Store Manager positions, he did not reveal the basis for that assertion.  In other words, he failed to prove other vacancies existed.  Moreover, McPherson conceded he never applied for any of the positions he now claims were vacant.

The Court went on to note that when there are no vacant positions for which an individual with a disability qualifies, the ADA does not require an employer to retain the individual and create an entirely new position for him or her.  Since McPherson had not shown that there were vacant positions for which he was qualified, the Eighth Circuit held that the District Court did not commit error in granting Summary Judgment to O’Reilly and against McPherson.

With respect to McPherson’s claim that O’Reilly violated the ADA by disclosing confidential medical information, the Court first noted that the law prohibits an employer from disclosing confidential medical information about an ex-employee, even if that employee does not have a disability.  The employee must show, however, that the disclosed information was confidential and that the employee suffered some kind of tangible injury as a result of the disclosure.  Once again, however, the Court held that McPherson simply failed to meet his burden of proof.  That is to say, McPherson failed to submit sufficient credible evidence demonstrating that O’Reilly had, in fact, disclosed any confidential medical information to a third party.

While this decision is certainly helpful to employers, care must still be exercised.  Had McPherson been able to prove there were vacant positions for which he was qualified, which met his restrictions, and for which he applied and was denied, or that O’Reilly indeed had disclosed confidential medical information, the result may have been different.

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