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Workplace accommodation responsibilities to be shared

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ST. LOUIS—Employers and their disabled employees have a shared responsibility to resolve accommodation requests, says a federal appellate court in upholding a $100,000 jury award in favor of a worker who uses a wheelchair who unsuccessfully suggested several accommodations and was then terminated.

The employer "failed to engage in the interactive process," although the employee did his part as called for under the Americans with Disabilities Act, said the 8th U.S. Circuit Court of Appeals in its July 6 decision in Equal Employment Opportunity Commission and Ahmet Yigit Demirelli vs. Convergys Customer Management Group Inc.

Mr. Demirelli, who has a rare condition known as brittle bone disease, was hired at Cincinnati-based Convergys' call center in January 2001. Under the company's strict tardy policy, employees with 14 or more violations in a single year could be disciplined.

Mr. Demirelli was often late for work and in returning from lunch. The call center's two van-accessible handicapped parking spaces were usually occupied when he arrived, causing him to either wait for the space to become unoccupied or find an alternative.

Parking at a nearby theater, though, took 10 minutes "and caused Demirelli considerable physical pain," says the opinion. He also had a problem finding the spaces available earlier in the morning and the spots were still occasionally occupied even during a later work shift as well.

Mr. Demirelli's condition and the call center's layout also hampered an on-time lunch return, says the decision. Convergys' call center is "a maze of hundreds of cubicles," but unlike most employees, Mr. Demirelli could not simply look over the tops of the rows of cubicles to find an available workstation. Convergys does not assign employees to work in specific cubicles.

His time-consuming search for a workstation was exacerbated by narrow aisles and navigating obstacles "such as stray chairs or chatting colleagues," says the decision.

Convergys terminated Mr. Demirelli in June 2002.

The record does not show Convergys "fulfilled its obligations to explore possible accommodations for Demirelli's disability," says the opinion by the unanimous three-judge panel. "In fact, the record evidence shows that Demirelli assumed Convergys' responsibility by offering several potential accommodations," which included an extra 15 minutes for lunch.

"Convergys offers no convincing evidence the jury's award of $100,000 for emotional damages shocks the conscience," the decision says.

"This company was formidable in its opposition to accommodate this employee," including its failure to make a parking space available for him or give him an assigned work space, said Paul Mollica, a plaintiff attorney with Meites, Mulder, Mollica & Glink in Chicago. "You have to invest a little bit of time and effort and money into accommodating" the disabled and the record indicates Convergys did not, said Mr. Mollica, who was not involved in the case.

"I think the court took the employer to task for essentially requiring the employee to come up with the reasonable accommodation when quite frankly, it's the employer that best knows its business and is in the best position to design an accommodation that both suits the needs of the employee, yet does not impose an undue hardship on the other employees or the company as a whole," said Jeremy Glenn, a defense attorney with Meckler Bulger & Tilson L.L.P. in Chicago.

Brian Ashe, an attorney with Seyfarth Shaw L.L.P. in San Francisco said the interactive process called for the Americans with Disabilities Act "is a lot like a tango." Two parties are needed to make it work right, he said. But in this case, "the employer wasn't dancing at all."

And attorney for Convergys declined to comment on the decision.

Equal Employment Opportunity Commission, appellee, Ahmet Yigit Demirelli, intervenor-appellee, vs. Convergys Customer Management Group Inc., appellant, 8th U.S. Circuit Court of Appeals, No. 06-2874