Virginia Lawyers Weekly VA Lawyers Weekly
Where the charge of discrimination filed by an employee asserted only a claim for disability discrimination; did not check the box for “retaliation” or for “other” to specify a failure-to-accommodate or an interference charge and did not discuss any facts that are reasonably related to retaliation, failure-to-accommodate or interference, those claims were dismissed because they were not administratively exhausted.
Background
Tammy Rausch worked as a general manager for Alta Cima, in the Rocky Mount, Virginia sales office from March 2019 to September 2020. On Sept. 13, 2021, Rausch filed a four-count complaint in this court, alleging discrimination in violation of the Americans with Disabilities Act, or ADA (Count One); failure-to-accommodate in violation of the ADA (Count Two); retaliation in violation of the ADA (Count Three) and interference in violation of the ADA (Count Four). Defendant has moved for summary judgment on all counts.
Exhaustion
Defendant argues that it is entitled to summary judgment on Counts Two, Three and Four. It argues that because these claims are outside the scope of her EEOC charge, Rausch did not fully exhaust her administrative remedies as required by the ADA.
In her EEOC charge, Rausch alleged only disability discrimination and listed the discrimination as occurring between Dec. 4, 2020, when her employment was terminated, and June 7, 2021, the EEOC filing date. In the narrative of her charge, Rausch mentioned only that she believes she was terminated from employment and denied rehiring due to disability discrimination in violation of the ADA.
Rausch did not check the box for “retaliation” or for “other” to specify a failure-to-accommodate or an interference charge, nor did she discuss any facts that are reasonably related to retaliation, failure-to-accommodate or interference while describing her discrimination charge on the EEOC form. Accordingly, the court finds that Rausch did not adequately exhaust her administrative remedies for Counts Two, Three and Four.
Failure to accommodate
Exhaustion notwithstanding, Rausch’s failure-to-accommodate claim cannot survive Alta Cima’s motion for summary judgment. Rausch effectively contends that failing to create a part-time position for her subjects Alta Cima to liability for failing to engage with her in an interactive process to identify a reasonable accommodation.
However Rausch admitted that she was unable to work the full-time schedule that the sales position demanded. Thus, she could not perform the essential functions of the position she sought. Because Alta Cima was not required to create a part-time flexible position for Rausch, any failure to engage in the interactive process is inconsequential, requiring summary judgment on Rausch’s failure-to-accommodate claim.
Wrongful discharge
To survive summary judgment on a discriminatory discharge claim, a plaintiff must “produce evidence sufficient to demonstrate that (1) [she] ‘was a qualified individual with a disability’; (2) [she] ‘was discharged’; (3) [she] ‘was fulfilling [her] employer’s legitimate expectations at the time of discharge’; and (4) ‘the circumstances of [her] discharge raise a reasonable inference of unlawful discrimination.’”
Here, Rausch contends her discharge on Dec. 4, 2020, was in violation of the ADA. But Rausch does not contest that from the time she was placed on medical leave on Sept. 14, 2020, until she was released by her physician for full time work on Jan. 1, 2021, she was not qualified to work the full-time, in-office schedule required for either the general manager position or a full-time sales position.
Rausch instead argues that when she was released to work part-time on Nov. 24, 2020, she could still perform the essential functions of the sales position on a flexible, less intensive basis. But no reasonable reader of the sales position’s job description could interpret the description as permitting of a part-time flexible schedule. As a result, she cannot succeed as a matter of law on her wrongful discharge claim.
Failure to rehire
To succeed on a failure to rehire claim under the ADA, a plaintiff must show that she “(1) is disabled within the meaning of the ADA; (2) applied for the vacant position; (3) was qualified for the position; and (4) was rejected for the position under circumstance giving rise to an inference of unlawful discrimination.”
First, Rausch cannot make out a prima facie case for disability discrimination because she was not disabled for the duration of time she alleges that Alta Cima discriminatorily failed to rehire her. Even if Rausch were able to establish a prima facie case of disability discrimination, moreover, she cannot meet her burden under the McDonnell-Douglas framework to rebut the legitimate nondiscriminatory reasons that Alta Cima provided for why Rausch was not rehired.
Defendant’s motion for summary judgment granted.
Rausch v. Alta Cima Corporation, Case No. 7:21-cv-00476, Feb. 24, 2023. WDVA at Roanoke (Urbanski). VLW 023-3-088. 21 pp.
