From Cooper v. Dolgencorp, LLCdecided Thursday by the Sixth Circuit, in an opinion by Judge Mathis, joined by Judges Moore and Murphy:
In 2016, Cooper began working for CCCI as a delivery merchandiser [who delivered products to customer stores]. Before CCCI hired Cooper, he had already been diagnosed with Tourette’s syndrome. Tourette syndrome causes unwanted, involuntary muscle movements and sounds known as “tics.” For Cooper, Tourette syndrome involves a rare tic symptom known as coprolalia. The condition causes Cooper to use obscene and inappropriate vocalizations, including swear words (bitch) and racial slurs (nigger)….
This led to repeated customer complaints and ultimately led Cooper’s employer (Coca-Cola Consolidated, Inc., or CCCI) to reassign Cooper to a lower-paying, non-customer-facing warehouse position , $18.96/hour instead of $20.38/hour. (Cooper’s doctor had concluded that Cooper could work as a driver, but he “needs to be present with another driver,” presumably because that was the only way to avoid contact with the client.)
Cooper sued under the Americans with Disabilities Act, under which
(1) The plaintiff has the burden of proving that he is disabled. (2) The plaintiff has the burden of proving that he or she is “otherwise qualified” for the position despite his or her disability: (a) without accommodation by the employer; (b) by eliminating a purported “essential” job requirement; or (c) with a proposed reasonable accommodation. (3) The employer will have the burden of demonstrating that a disputed employment criterion is essential, and therefore a business necessity, or that a proposed solution will impose an undue burden on the employer.
The court concluded that the CCCI was entitled to summary judgment:
[Cooper] claims he was otherwise qualified for the position of delivery merchandiser without accommodation. If this is true, then CCCI’s decision to move Cooper to the warehouse due to his disability was discriminatory….
The parties do not dispute that Cooper’s Tourette syndrome with coprolalia qualifies as a disability….
We must answer two questions to determine whether Cooper was otherwise qualified for the position of delivery merchandiser without accommodation. Was excellent customer service an essential function of Cooper’s position at CCCI? If so, could Cooper perform this function without CCCI changing his job duties in any way?
We answer the first question in the affirmative: excellent customer service is an essential function of the specific Cooper delivery merchant position. As a reminder, not all job functions are essential. Such functions “may be considered essential because (1) the position exists to perform the function, (2) there are a limited number of employees who can perform the function, or (3) it is highly specialized.” Congress has instructed courts to consider “the judgment of the employer” in determining the essential functions of a job. A written job description is “evidence of the essential functions of the job.”
CCCI identifies “[e]excellent customer service skills” in his written job description for the delivery merchandiser position as part of the knowledge, skills, and abilities needed to perform the job. And, most importantly, Cooper establishes that excellent customer service was an essential function of the position delivery merchandiser Our analysis of the first question ends here.
We will then evaluate whether Cooper could provide excellent customer service to unhoused CCCI clients…. A reasonable jury failed to find that Cooper could provide excellent customer service to CCCI customers in his role as a delivery merchandiser without an accommodation. Of particular importance, Cooper’s doctor noted that Cooper needed accommodations to perform his job duties. When the plaintiff’s doctor – not simply the defendant employer – concludes that the plaintiff cannot perform his or her job without an accommodation, the plaintiff likely cannot demonstrate that he or she is otherwise qualified to perform the job without an accommodation.
Cooper’s disability also led him to utter racist and vulgar words in the presence of other people in the stores of CCCI customers. At various times during his employment, CCCI customers complained about the language he used when delivering CCCI products. Indeed, Cooper acknowledges many of the customer complaints filed against him in his amended complaint….
Cooper makes several arguments in response…. [Among other things,] Cooper argues, relying Taylor v. Food World, Inc. (11th Cir. 1998), that there is a substantial dispute of fact regarding whether CCCI can provide excellent service to customers without offending them. Taylor It doesn’t help Cooper. In Taylor, a minor, who had been diagnosed with Asperger’s disorder which led to him suffering from echolalia (repetitive speech), worked as a clerk for Food World packing groceries and carrying them to customers’ vehicles. Food World fired the minor after receiving complaints from customers that the minor was “talking loudly and sometimes asking customers personal questions.” The Eleventh Circuit reversed the district court’s grant of summary judgment to Food World, finding that there was a factual dispute as to whether the minor’s questions to customers were offensive. But there is no reasonable doubt here that Cooper’s use of racist and profane language was offensive.
This case is more similar Ray v. Kroger Co. (11th Cir. 2003) …..In Ray, the plaintiff, like Cooper, had been diagnosed with Tourette syndrome with coprolalia. Ray worked as a grocery clerk for Kroger, which put him in regular contact with Kroger customers. The job required Ray to interact with customers without offending them. Ray was unable to do so because he used decipherable racial slurs, which offended some customers. The Eleventh Circuit held that summary judgment in favor of Kroger was warranted because Ray could not perform an essential function of his job….
The court also concluded that there were no non-customer-facing delivery routes available, so assigning Cooper to that route would not have been a reasonable and practicable solution.
Jeffrey D. Patton of Spilman Thomas & Battle, PLLC represents CCCI.