Restaurant Manager’s Disability Bias Claims Sent Back to Local Agency for Further Review
By Patrick Dorrian
A restaurant manager may proceed with disability bias claims, the District of Columbia Court of Appeals ruled Aug. 29, finding the restaurant’s offer of a demotion and pay cut is evidence it did not adequately accommodate his joint disease problem (Sparrow v. D.C. Office of Human Rights, D.C., No. 12-cv-1732, 8/29/13).
Judge Anna Blackburne-Rigsby cited Timothy Sparrow’s evidence that his boss stated that he wanted Sparrow to address the limp caused by Sparrow’s degenerative hip condition as soon as possible to avoid turning off customers.
Tom Whitney, Sea Catch Restaurant & Raw Bar’s director of quality assurance, also allegedly told Sparrow to “hobble up the stairs” to attend a meeting in Whitney’s office, the judge said. The judge also found that there was evidence that several of Sparrow’s former co-workers were surprised and dismayed by Sea Catch’s treatment of Sparrow given his strong work ethic, effectiveness in his position, and the public praise he had received from upper management.
The court found that the District of Columbia Office of Human Rights failed to properly consider Sparrow’s evidence in its conclusion that Sea Catch engaged in the required interactive process with Sparrow and reasonably accommodated Sparrow for purposes of the District of Columbia Human Rights Act by eliminating his director of restaurant/catering position, reducing his duties, cutting his work hours to 20 hours per week, and reducing his pay by $13,000 annually.
Following his doctor’s recommendation, Sparrow asked Sea Catch to reduce his typical 65-hour workweek by 10 to 15 hours and to require him to spend less time on his feet, according to the court.
Finding that “R.B. Properties’ reduction of Mr. Sparrow’s hours, responsibilities, and pay falls within a spectrum that ranges from, on one end, a reasonable accommodation and, on the other end, an adverse employment action,” the court decided that remand to the DCOHR was required for the agency to consider all of the evidence on the issue.
It added that the local employment rights agency also failed to consider all of Sparrow’s evidence on the question of whether Sea Catch’s stated reason for later firing him–alleged poor performance–less than a month after he sought an accommodation for his condition was a pretext for disability discrimination and retaliation. DCOHR imposed too great a burden on Sparrow at the investigative phase when it required him to prove that the restaurant’s evidence of his alleged poor performance was false, the court ruled.
Started to Use Cane at Work
According to the opinion, on Feb. 26, 2009, while working as director of restaurant/catering for Sea Catch, Sparrow was diagnosed with “an extreme case of degenerative joint disease in his left hip,” and was instructed to use a cane until he was able to have hip replacement surgery.
Sparrow told R.B. Properties about his condition the following day, and at the direction of his doctor asked the restaurant to cut his hours by 10-15 hours per week from his regular 65-hour workweek. He also asked if he could spend less time at work on his feet.
When Sparrow’s limp became noticeable, Whitney allegedly expressed concern about how Sea Catch patrons viewed his appearance and informed him that he wanted Sparrow to address his condition as soon as possible. Sparrow further alleged that, in response to his request to move a meeting with Whitney to Sparrow’s downstairs office rather than holding it in Whitney’s upstairs office, Whitney replied that he should “hobble up the stairs.”
On March 9, 2009, Sparrow was informed that his job was being eliminated. He was given “the day to consider” the restaurant’s offer of a part-time position focused on booking catering events. In the new position, he would be prohibited “from working the floor” of the restaurant, his annual salary would be cut by $13,000, and his hours would be reduced to 20 hours per week.
“There is no indication that Mr. Sparrow’s request for an accommodation was discussed at this meeting,” Blackburne-Rigsby said.
Sparrow accepted the demotion, but nevertheless was terminated by R.B. Properties March 17, 2009, based on his alleged poor performance. He filed a complaint with DCOHR, claiming disability discrimination and retaliation.
The local agency, “without conducting a hearing,” found no probable cause to support Sparrow’s allegations of a failure to accommodate his disability and retaliation for requesting an accommodation. The agency reaffirmed that decision on Sparrow’s request for reconsideration, again without conducting a hearing.
Sparrow appealed DCOHR’s ruling to the District of Columbia Superior Court. That court affirmed the local agency’s findings, and he appealed further to D.C.’s highest court.
Bias Claims Revived
In analyzing Sparrow’s DCHRA claims, the D.C. Court of Appeals noted that it relied in part on federal courts’ interpretations of similar provisions of the Americans with Disabilities Act. It found that while there is no direct ADA liability for employers that fail to engage in the act’s required interactive process for identifying reasonable job accommodations, evidence of a failure to engage in the process is viewed as prima facie proof of possible bad faith.
“Accordingly, if an employer has not engaged in an interactive process, ‘a factual question exists as to whether the employer has attempted to provide reasonable accommodation,’ ” Blackburne-Rigsby wrote.
The court agreed with Sparrow that DCOHR failed to consider all of the evidence in concluding that R.B. Properties had engaged in a sufficient interactive process with Sparrow. The agency relied on affidavits submitted by Whitney and other company executives stating that they worked with Sparrow to satisfy his request for accommodation, but it “ignored other evidence undermining R.B. Properties’ claim,” the court found.
Blackburne-Rigsby said both Sparrow’s and the company’s versions of events suggested that the only communications regarding a work accommodation for Sparrow were limited to Sparrow’s initial accommodation request and the company’s offer of a reduced-duty, part-time position at less pay.
“Therefore, the record reveals that the only effort R.B. Properties undertook to address Mr. Sparrow’s accommodation request was a ‘take it or leave it’ offer of a demotion. That is compelling evidence that R.B. Properties did not engage in an interactive dialogue,” the court concluded.
Agency Applied Incorrect Standards
The court further concluded that the local agency “misapplied the probable cause standard” in finding that the reduced-duty, reduced-pay position Sparrow was moved into after disclosing his hip problems was not an adverse employment action, but rather a reasonable accommodation under the DCHRA.
The agency should have asked only whether the version of events laid out by Sparrow was reasonable, the court said. Instead, it held, DCOHR required Sparrow to disprove the version of events set forth by the company.
The local agency “found that R.B. Properties provided Mr. Sparrow with a reasonable accommodation because, per Mr. Sparrow’s request, the demotion served to reduce Mr. Sparrow’s hours and limited the time he spent on his feet,” Blackburne-Rigsby noted. “Yet, in light of the extent and implications of the reduction of hours, this action was not necessarily a reasonable accommodation,” the judge said.
Sparrow also was subjected to an overly burdensome standard on the issue of pretext, the court ruled. It found that, at the agency investigation phase, Sparrow should have been required only to produce substantial evidence that R.B. Properties’ legitimate, nondiscriminatory reason for discharging him was not the real reason and that the company instead intentionally discriminated against him.
“By qualifying his performance with the affidavits from his colleagues stating that management believed Mr. Sparrow was a good employee and the email Mr. Sparrow sent to management detailing several problems in the restaurant that R.B. Properties claimed he had failed to bring to management’s attention, Mr. Sparrow offered evidence that R.B. Properties did not truly believe that Mr. Sparrow’s performance was poor and that its stated reasons were pretext for its decision to terminate him,” Blackburne-Rigsby said, reversing and remanding the case for further proceedings.
Judges Roy W. McLeese and Frank Q. Nebeker joined the opinion.
Denise M. Clark of Clark Law Group in Washington, D.C., represented Sparrow. Jonathan W. Greenbaum of Coburn & Greenbaum in Washington, D.C., represented R.B. Properties.