Equal Employment Opportunity Commission v. Kohl's Department Stores, Inc.

United States Court of Appeals
For the First Circuit

No. 14-1268

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff, Appellant,

v.

KOHL'S DEPARTMENT STORES, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Torruella, Thompson, and Kayatta,
Circuit Judges.

Donna J. Brusoski, Attorney, Office of the General Counsel,
with whom P. David López, General Counsel, Carolyn L. Wheeler,
Acting Associate General Counsel, and Jennifer S. Goldstein, Acting
Assistant General Counsel, were on brief, for appellant.
Melinda J. Caterine, with whom Fisher & Phillips LLP, was on
brief, for appellee.

December 19, 2014
 TORRUELLA, Circuit Judge. Appellant Equal Employment

Opportunity Commission ("EEOC") asserts that Appellee Kohl's

Department Stores, Inc. ("Kohl's") refused to provide former

employee Pamela Manning ("Manning") with reasonable accommodations

in violation of the Americans with Disabilities Act ("ADA"), 42

U.S.C. § 12112. The EEOC also asserts that by failing to comply

with the ADA, Kohl's constructively discharged Manning. The

district court entered summary judgment in favor of Kohl's on both

claims. We affirm.

I. Background

The following undisputed facts are summarized in the

light most favorable to the EEOC, the nonmoving party. See, e.g.,

McGrath v. Tavares, 757 F.3d 20, 25 (1st Cir. 2014). Manning

suffers from type I diabetes. In October 2006, Manning was hired

as a part-time sales associate at Kohl's. She held this position

until January 2008, when she was promoted to a full-time sales

associate. As a full-time associate working thirty-six to forty

hours per week, Manning worked predictable shifts which usually

started no earlier than 9:00 a.m. and ended no later than 7:00 p.m.

In January 2010, Kohl's restructured its staffing system

nationwide, resulting in a reduction in hours for Manning's

department. Manning maintained her full-time status because she

performed work for various other departments depending on the

store's needs.

-2-
 Due to the restructuring, Kohl's scheduled Manning to

work various shifts at different times during the day, and her

scheduled hours became unpredictable as a result.1 For example,

Manning worked more "swing shifts" –- a night shift followed by an

early shift the next day. In March 2010, Manning informed her

immediate supervisor, Michelle Barnes ("Barnes"), that working

erratic shifts was aggravating her diabetes and endangering her

health. Barnes told Manning to obtain a doctor's note to support

her accommodation request. Manning visited her endocrinologist,

Dr. Irwin Brodsky ("Dr. Brodsky"), who determined that the stress

Manning experienced due to working erratic hours deleteriously

contributed to her high glucose levels. Dr. Brodsky wrote a letter

to the store manager of Kohl's, Tricia Carr ("Carr"), requesting

that Kohl's schedule Manning to work "a predictable day shift

(9a-5p or 10a-6p)," R. at 74, so that Manning could better manage

her stress, glucose level, and insulin therapy.

Upon receiving Dr. Brodsky's letter, Carr contacted

Kohl's human resources department seeking guidance in responding to

Manning's request. She emailed a copy of the letter to Michael

1
Numerous Kohl's employees testified throughout discovery that
full-time associates were expected and required to have "open
availability," meaning they could be scheduled to work at any time
of the day or night. See R. at 92, 95 (Barnes Dep.); id. at 178
(Gamache Dep.); id. at 370-71, 399-401 (Treichler Dep.); id. at 445
(St. John Dep.); id. at 453 (Wilner Dep.). Full-time associates
were also required to work two night or evening shifts each week,
and every other weekend as well. See, e.g., id. at 370 (Treichler
Dep.).

-3-
Treichler ("Treichler") in Human Resources and told him that

Manning had submitted a written doctor's "request[] that I

accommodate [Manning] with day time hrs only." Id. at 75.

Treichler told Carr that with Manning "being a full-time

associate[,] she would still need to be required to work nights and

weekends and that definitely we would make sure she had no swing

shifts, [and] that we would make sure . . . that she really took

her breaks." Id. at 160 (Carr Dep.). Treichler asked Carr to meet

with Manning and propose the no-swing-shift option. Carr's

deposition testimony describing this sequence of events is

consistent with an email she received from Treichler responding to

her request for guidance, which stated, in part: "Clearly we can

not have [Manning] not work nights. BUT, we can work with her to

avoid the 'swing shifts' - A [sic] close followed by an open." Id.

at 76.

Subsequently, Carr and Barnes arranged to meet with

Manning on March 31, 2010, to discuss Manning's concerns. During

their meeting, Manning requested "a steady schedule, [but] not

specifically 9:00 to 5:00." Id. at 282 (Manning Dep.). As she

described it, "I was asking for a midday shift, what I had before,

the hours that I had before [the departmental restructuring]." Id.

at 281 (Manning Dep.). Manning also expressed a willingness to

work on weekends.

-4-
 Carr responded that she had spoken to "higher-ups" at the

corporate management level, and that she could not provide a

consistently steady nine-to-five schedule.2 Manning became upset,

2
This is where the dissent parts ways with our view of the
record. The dissent states that Carr failed to offer Manning any
alternative accommodation at the March 31 meeting, even though she
had been expressly authorized to offer Manning a schedule with no
swing shifts. The dissent views Carr's failure to bring up the
swing shifts as evidence that would allow a jury to find that
Kohl's was not making a good faith effort to engage with Manning.
We disagree. While a reasonable jury could have found that Carr
was authorized to offer "no swing shifts," and that she did not
volunteer this information at her meeting with Manning, we are
unable to ascribe the same significance to these facts as does the
dissent.

Manning's requested accommodation was, as stated by Dr.
Brodsky, "a predictable day shift." Indeed, at his deposition Dr.
Brodsky agreed that in his letter to Kohl's he "asked that Ms.
Manning be allowed to work a predictable work shift either nine to
five or ten to five." He further testified that the "only
situation . . . about which [he] rendered an opinion is the one
that [he] listed in the letter," and he agreed that "any variations
beyond the nine a.m. to five p.m. or the [ten] a.m. to six p.m.
[schedule] would require [him] to have a further discussion with
Ms. Manning[.]" Manning herself said that she requested "a steady
schedule, not specifically 9:00 to 5:00." No one is in a better
position than Manning and her doctor to tell us what Manning's
requested accommodation actually was, and the evidence on this
point is uncontested. Manning was not simply asking for "no swing
shifts," she was in fact looking to be relieved of the obligation
to work night shifts as well.

The uncontested evidence in the record also demonstrates that
Carr was never authorized to grant Manning's request. Indeed, the
only evidence is that for Manning to continue working as a
full-time associate, Kohl's would continue to require Manning to
work nights. Thus, there is no evidence that Carr refused to
extend a requested reasonable accommodation that she had been
authorized to give. This is not a case in which an employer
privately decides that it would grant a requested accommodation,
but then elects not to offer it as part of strong-arm negotiating
tactics in the hopes that the employee would accept something less
than he or she originally requested.

-5-
told Carr that she had no choice but to quit because she would go

into ketoacidosis3 or a coma if she continued working unpredictable

hours, put her store keys on the table, walked out of Carr's

office, and slammed the door. Concerned, Carr followed Manning

into the break room outside, asking what she could do to help.

During this conversation, Carr attempted to calm Manning down and

requested that she reconsider her resignation and discuss other

potential accommodations. Manning responded, "Well, you just told

me Corporate wouldn't do anything for me." Id. at 458-59 (Manning

Medical Examination). Manning did not discuss any alternative

accommodations with Carr, but instead cleaned out her locker and

left the building. A few days later, on April 2, 2010, Manning

contacted the EEOC, seeking to file a discrimination claim.

On April 9, 2010, Carr called Manning to request that she

rethink her resignation and consider alternative accommodations for

both part-time and full-time work. Manning asked Carr about her

schedule, and Carr informed her that she would need to consult with

the corporate office about any accommodations. After this phone

Given the state of this record, we are unable to agree with
the dissent's view of Kohl's negotiating tactics. We do not
believe a reasonable jury could find that Kohl's failed to
negotiate in good faith based on Carr's authorization to offer "no
swing shifts."
3
Diabetic ketoacidosis is a serious medical complication that is
caused by low insulin levels. In response, the body burns fatty
acids, causing potentially dangerous levels of acidity to build up
in the bloodstream.

-6-
call, Manning had no further contact with anyone at Kohl's.

Because it had not heard from Manning, Kohl's treated her departure

as voluntary and terminated her employment later that month.

The EEOC brought this current suit on Manning's behalf in

the United States District Court for the District of Maine in

August 2011. The district court entered summary judgment in favor

of Kohl's, concluding on the ADA claim that Manning had failed to

engage in an interactive process in good faith and on the

constructive discharge claim that a reasonable person in Manning's

position would not have felt compelled to resign.

II. Discussion

The EEOC appeals the district court's grant of summary

judgment in favor of Kohl's on both the ADA discrimination claim

and the constructive discharge claim. We review a district court's

grant of summary judgment de novo. E.g., Acevedo-Parrilla v.

Novartis Ex-Lax, Inc., 696 F.3d 128, 136 (1st Cir. 2012). We draw

"'all reasonable inferences in favor of the nonmoving party,'" id.

(quoting Sánchez-Rodríguez v. AT & T Mobility P.R., Inc., 673 F.3d

1, 9 (1st Cir. 2012)), "'without deference to . . . the district

court,'" id. (quoting Hughes v. Bos. Mut. Life Ins. Co., 26 F.3d

264, 268 (1st Cir. 1994)).

Summary judgment is appropriate if the moving party

demonstrates that there is "no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law."

-7-
Fed. R. Civ. P. 56(a); accord Acevedo-Parrilla, 696 F.3d at 136.

There is no genuine dispute of material fact when the moving party

demonstrates that the opposing party has failed "to make a showing

sufficient to establish the existence of an element essential to

that party's case, and on which that party will bear the burden of

proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). We now examine each of the EEOC's claims, in turn.

A. The ADA Discrimination Claim

To establish a case of disability discrimination under

the ADA, the EEOC must establish that: "'(1) [Manning] is disabled

within the meaning of the ADA, (2) [Manning] was able to perform

the essential functions of the job with or without a reasonable

accommodation, and (3) [Kohl's], despite knowing of [Manning]'s

disability, did not reasonably accommodate it.'" Freadman v.

Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 102 (1st Cir. 2007)

(quoting Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003)).

The EEOC's failure to satisfy any one of these elements warrants

the entry of summary judgment against it as a matter of law. See

Celotex Corp., 477 U.S. at 322–23. We bypass any discussion about

the first two elements and proceed directly to the third element,

the basis for our affirmance.4

4
The district court considered but rejected the argument by
Kohl's that Manning was not qualified to perform the "essential
functions" of her job (element (2)). Instead, the district court
granted summary judgment to Kohl's under the accommodation issue
(element (3)) because it found that Manning failed to engage in the

-8-
 Under the third element, an employee's request for

accommodation sometimes5 creates "a duty on the part of the

employer to engage in an interactive process." See Enica v.

Principi, 544 F.3d 328, 338 (1st Cir. 2008). The interactive

process involves an informal dialogue between the employee and the

employer in which the two parties discuss the issues affecting the

employee and potential reasonable accommodations that might address

those issues. See 29 C.F.R. § 1630.2(o)(3). It requires bilateral

cooperation and communication. See Enica, 544 F.3d at 339.

We must emphasize that it is imperative that both the

employer and the employee have a duty to engage in good faith, and

that empty gestures on the part of the employer will not satisfy

the good faith standard. If an employer engages in an interactive

process with the employee, in good faith, for the purpose of

discussing alternative reasonable accommodations, but the employee

fails to cooperate in the process, then the employer cannot be held

liable under the ADA for a failure to provide reasonable

interactive process in good faith. We proceed directly to the
interactive process analysis because "[w]e may uphold an entry of
summary judgement on any basis apparent from the record." McGrath,
757 F.3d at 25.
5
This court does not regard an employer's participation in the
interactive process as an absolute requirement under the ADA.
Instead, we have held that we "resolve the issue on a case-by-case
basis." Kvorjak v. Maine, 259 F.3d 48, 52 (1st Cir. 2001). In
this case, we do not need to address whether Kohl's had a duty to
engage in an interactive process, since it did in fact initiate
such a dialogue with Manning.

-9-
accommodations. See, e.g., id. ("[T]he process requires open

communication by both parties, and an employer will not be held

liable if it makes 'reasonable efforts both to communicate with the

employee and provide accommodations based on the information it

possessed . . . .'" (last alteration in original) (quoting Phelps

v. Optima Health, Inc., 251 F.3d 21, 28 (1st Cir. 2001)));

Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736 (5th Cir. 1999)

("[A]n employer cannot be found to have violated the ADA when

responsibility for the breakdown of the 'informal, interactive

process' is traceable to the employee and not the employer."

(quoting Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1135

(7th Cir. 1996))).

Here, the record shows that after Manning left the

meeting on March 31, 2010, Carr pursued her, attempted to calm her

down, asked her to reconsider her resignation, and requested that

she contemplate alternative accommodations. Manning refused,

instead confirming that she quit by cleaning out her locker and

departing the building. Ten days later, Carr called Manning,

repeating her request for Manning to reconsider her resignation and

to contemplate alternative accommodations. Manning never responded

-10-
to Carr.6 Approximately one week after this phone call, Kohl's

terminated Manning's employment.

While Kohl's response to Manning's accommodation request

may well have been ham-handed, based on the undisputed facts, we

cannot find that its subsequent overtures should be construed as

empty gestures.7 The refusal to give Manning's specific requested

accommodation does not necessarily amount to bad faith, so long as

the employer makes an earnest attempt to discuss other potential

6
The record indicates that a member of the EEOC's staff may have
told Manning not to continue to participate in the interactive
process following her precipitous departure from Kohl's. During
her medical examination, when asked about Carr's April 9, 2010,
phone call to Manning, requesting that she reconsider her
resignation, this was her response:

MS. MANNING: . . . I just wanted to get off the phone as fast
as I could. And then I called --
DR. BOURNE: You could not talk?
MS. MANNING: No. And I told her that I couldn't talk.
DR. BOURNE: Per EEOC's directions?
MS. MANNING: Yes.

R. at 461-62 (Manning Medical Examination).

Assuming this is what happened, Manning should have been
directed to do precisely the opposite: she should have been
informed that she was obliged to continue to engage with the
interactive process in good faith. It thus may well be that
Manning's current predicament is due to erroneous advice provided
by the EEOC. Such a fact, if true, would be troubling, given the
EEOC's duty to investigate discrimination claims and authorize
lawsuits. One would expect that the EEOC should know that an
employee's failure to cooperate in an interactive process would
doom her ADA claim.
7
The EEOC suggests that Kohl's did not act in good faith because
Carr's attempts to reconcile with Manning were disingenuous "empty
gestures." As discussed below, the record does not support this
assertion.

-11-
reasonable accommodations. Here, Kohl's refused to provide

Manning's preferred schedule, but was willing to discuss other

schedules that would balance Manning's needs with those of the

store. Manning refused to hear what Kohl's had to offer. "'It is

difficult to judge the reasonableness of accommodations when the

employee withdraws before we can say with any authority what these

accommodations would have been.'" Griffin v. United Parcel Serv.,

Inc., 661 F.3d 216, 225 (5th Cir. 2011) (quoting Loulseged, 178

F.3d at 734). Manning's refusal to participate in the interactive

process is the reason why the record lacks facts regarding what

reasonable accommodations Kohl's might have offered had Manning

cooperated. We conclude that Kohl's acted in good faith when it

initiated an interactive process and displayed its willingness to

cooperate with Manning, not once but twice, to no effect. See,

e.g., Phelps, 251 F.3d at 28.

Furthermore, we conclude that Manning's refusal to

participate in further discussions with Kohl's was not a good-faith

effort to participate in an interactive process. See, e.g., Enica,

544 F.3d at 339 (quoting Beck, 75 F.3d at 1135); Phelps, 251 F.3d

at 28. Indeed, because Manning chose not to follow up with Carr's

offer to discuss alternative accommodations, Manning was primarily

responsible for the breakdown in the interactive process.8 See

8
The EEOC cites to Colwell v. Rite Aid Corp., 602 F.3d 495 (3d
Cir. 2010) in support of its claim that the refusal by Kohl's to
accommodate Manning's requests constituted a termination of the

-12-
Phelps, 251 F.3d at 27 (holding plaintiff responsible for the

breakdown in the interactive process when she "failed to cooperate

in such a process"); see also Griffin, 661 F.3d at 225 (quoting

Loulseged, 178 F.3d at 734).

In sum, when an employer initiates an interactive

dialogue in good faith with an employee for the purpose of

discussing potential reasonable accommodations for the employee's

disability, the employee must engage in a good-faith effort to work

out potential solutions with the employer prior to seeking judicial

redress. Manning did not do so in this case, and therefore, the

EEOC has failed "to make a showing sufficient to establish the

existence of an element essential to [its] case . . . ." See

Celotex Corp., 477 U.S. at 322. Accordingly, we hold that summary

judgment against the EEOC on the ADA discrimination claim is

warranted as a matter of law.9

B. The Constructive Discharge Claim

To establish a claim of constructive discharge, the EEOC

must show that Manning's working conditions were "so onerous,

abusive, or unpleasant that a reasonable person in [her] position

interactive process. We find Colwell distinguishable, because in
that case, the evidence indicated that the employer may have been
more responsible for a failure to communicate. See id. at 507–08.
Here, Kohl's attempted to communicate with Manning twice, to no
effect.
9
We must emphasize that our holding is limited to the highly
idiosyncratic facts of this case and should not be interpreted as
upsetting our current ADA jurisprudence.

-13-
would have felt compelled to resign." Suárez v. Pueblo Int'l,

Inc., 229 F.3d 49, 54 (1st Cir. 2000) (citing Vega v. Kodak

Caribbean, Ltd., 3 F.3d 476, 480 (1st Cir. 1993)). In other words,

work conditions must have been so intolerable that Manning's

decision to resign was "void of choice or free will" -- that her

only option was to quit. See Torrech-Hernández v. Gen. Elec. Co.,

519 F.3d 41, 50 (1st Cir. 2008). This standard is entirely

objective -- we do not put weight on the employee's subjective

beliefs, "'no matter how sincerely held.'" Id. at 52 (quoting

Marrero v. Goya of P.R., Inc., 304 F.3d 7, 28 (1st Cir. 2002)).

Here, the EEOC fails to meet this objective "reasonable

person" standard. The EEOC argues that Manning's fears that she

would go into ketoacidosis or slip into a coma were objectively

reasonable because her doctor told her that continuing to work

erratic shifts could cause these serious medical complications.

Even assuming, arguendo, that being concerned about these health

issues is objectively reasonable, we still find that Manning's

choice to resign was "grossly premature, as it was based entirely

on [her] own worst-case-scenario assumption" that Kohl's would not

provide her with accommodations. See id. According to the record,

after Manning left the meeting in Carr's office on March 31, 2010,

Carr followed Manning into the break room. Carr gave Manning her

first opportunity to reconsider her resignation and offered to

discuss other potential accommodations with Manning. Manning

-14-
ignored this first overture, despite seeing that Carr was willing

to discuss and negotiate alternative accommodations. On April 9,

2010, Carr called Manning over the phone, repeating her request

that Manning reconsider both her resignation and her refusal to

discuss alternative accommodations. Manning also ignored this

second overture.

"[A]n employee is obliged not to assume the worst, and

not to jump to conclusions too [quickly]." Id. (internal quotation

marks omitted). Here, Manning not only jumped to a conclusion

prematurely, but she also actively disregarded two opportunities to

resolve her issues. We agree with the Seventh Circuit that a

reasonable person would simply not feel "compelled to resign" when

her employer offered to discuss other work arrangements with her.

See EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 441 (7th Cir. 2000)

("Instead of discussing the new work schedule[,] . . . [the

employee] resigned. While this was certainly her prerogative, we

do not believe this was her only option. . . . [W]e cannot conclude

that a reasonable person in her position would have been compelled

to resign."); see also Torrech-Hernández, 519 F.3d at 50-51.

Because we find that a reasonable person in Manning's position

would not have concluded that departing from her job was her only

available choice, the EEOC has failed to meet the "reasonable

person" element for a constructive discharge claim. We

-15-
consequently hold that summary judgment against the EEOC on the

constructive discharge claim is warranted as a matter of law.

III. Conclusion

We are sympathetic to Manning's medical issues.

Moreover, we note that had the matter ended at the refusal by

Kohl's to grant Manning's request for a steady work schedule,

Manning might well have had viable causes of action. Yet, for both

of her claims, we cannot ignore the multiple subsequent

opportunities that Kohl's offered to Manning to discuss alternative

reasonable accommodations. Consequently, the facts, even when read

in the EEOC's favor, substantiate neither a claim for ADA

discrimination nor a claim for constructive discharge. It follows

that the district court correctly granted summary judgment in favor

of Kohl's on both claims.

AFFIRMED.

-Dissenting Opinion Follows-

-16-
 KAYATTA, Circuit Judge, dissenting. A reasonable jury

could properly view the facts in this case very differently than

does the majority. So viewed, those facts should preclude summary

judgment unless we are to bless as a matter of law a negotiating

tactic that is unfair to disabled employees who reasonably believe

that they confront imminent serious harm if an accommodation is not

provided. To explain why this is so, I begin with a brief example

of how a reasonably competent plaintiff's lawyer would fairly

describe the well-supported facts to a jury, and I then follow with

an analysis of why those facts could support a verdict in EEOC's

favor. Finally, I explain why it follows that the constructive

discharge claim should survive as well.

I. The Facts

Fending off the stress-induced exacerbation of a life-

threatening condition, and believing that she faced imminent

serious harm if she could not secure an accommodation, Manning

requested less erratic work hours--especially no swing shifts--to

allow her to work without suffering harmful medical consequences.

Kohl's demanded that Manning provide a note from her doctor, which

she then did. Dr. Brodsky's note focused on the problem caused

Manning by swing shifts in particular. He explained that, as

someone with type 1 diabetes, Manning "takes five daily injections

of insulin that must be timed to match her meals and activity," but

that she was "having difficulty matching her insulin action to her

-17-
work schedule in your store when she swings shifts (e.g. working

late shift one day and returning for an early shift the next day)."

Dr. Brodsky's note further informed Kohl's that "[a] more

predictable and regular schedule should help smooth her blood sugar

control and help prevent serious complications of diabetes."

Although the note referenced, parenthetically, 9:00 a.m. to 5:00

p.m. and 10:00 a.m. to 6:00 p.m. shifts, a fact-finder could

reasonably conclude that the doctor offered those shifts simply as

acceptable examples, and that Manning merely requested a consistent

day-to-day schedule as a way of avoiding swing shifts. The

district court therefore properly operated on the premise that

Manning's request was for a "more regular and predictable

schedule," somewhere between the hours of 6:00 a.m. and 8:00 p.m.,

that did not include swing shifts.10

Manning repeated her request for a steady work schedule

and no swing shifts during the meeting with store manager Carr and

assistant store manager Barnes. In response, Carr and Barnes left

Manning with the impression that no individual accommodation would

10
Rather than focus on how Kohl's may have reasonably interpreted
Manning's request, including Dr. Brodsky's note, the majority asks
the wrong question: How did Dr. Brodsky interpret his note at his
later deposition? The majority then illogically declares that
interpretation to be the reading that a jury must assume Kohl's
actually adopted. In any event, as I explain in the body of this
dissent, infra, a jury could easily find Kohl's responsible for the
breakdown in the interactive process not because it rejected
Manning's request (however interpreted), but because it failed to
offer even the accommodation it determined it could make.

-18-
be forthcoming. Specifically, Carr told Manning that if she gave

Manning the scheduling accommodation Manning wanted, then she would

have to do that for everyone else at the store. Barnes reinforced

this point by telling Manning that "we were keeping to consistency

in regards to all full timers in the building and their schedules."

Carr further explained that "the needs of the business dictate[d]

when [Manning] work[ed]" and "would require at times shifts that

are early, days, mids and closes." These statements, taken

together, basically told Manning that Kohl's would not offer

Manning any scheduling accommodation that was not both available to

all other workers and compatible with a business need to have

fluctuating shifts.11 As a concrete demonstration of this point,

Carr and Barnes flatly rejected the accommodation Manning requested

and, importantly, offered her no alternative accommodation even

though Kohl's--through HR manager Treichler--had already expressly

authorized Carr to offer Manning a schedule with no swing shifts,

the availability of which did not turn on its being offered to all

other employees as Carr falsely told Manning.

11
The majority correctly notes that Kohl's employees testified
that full-time employees were required to work two night shifts per
week and have "open availability," or the flexibility to work any
time of the day, although it appears that this scheduling
expectation was not recorded in writing. However, there is also
testimony in the record that exceptions to this scheduling practice
were "pretty regularly" made, and "there was a fair amount of
leeway within those [full-time] positions." The district court
therefore considered it disputed that open availability and working
two night shifts per week were strict requirements for full-time
employees.

-19-
 With a vulnerable employee known to Kohl's to believe she

faced imminent harm if her shifts could not be changed, the

negotiating tactics employed by Carr and Barnes caused Manning to

flee the one-sided discussions and announce that she had no choice

but to quit. It is true that Carr chased after Manning and spoke

with her in the break room, and then called her again ten days

later. But in neither conversation did Carr propose alternative

accommodations, request other information, or otherwise indicate

that Kohl's had relented. In the break room, Carr failed to

suggest any accommodation, including the accommodation that Carr

knew she could offer and that Manning's doctor said she most

needed--no swing shifts. During the second conversation, by phone

on April 9, Manning asked about her work schedule after Carr asked

her to consider other accommodations for full-time and part-time

employment (none of which Carr actually offered, or even said she

had authority to offer).12 Carr replied that she would need to

consult with the corporate office about any schedule

accommodations, in contradiction with the corporate office's

earlier authorization for Carr to avoid scheduling Manning for

swing shifts. Four times unable to get a specific counteroffer

from Kohl's of any accommodation, and told that the person she was

12
Although part-time employment can be a reasonable accommodation,
29 U.S.C. § 12111(9)(b), Kohl's knew that it was not the volume of
work that jeopardized Manning's health, but its erratic
distribution.

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speaking to didn't even have any authority to offer one, Manning

gave up and moved on.

II. The Interactive Process

My colleagues point to nothing in the foregoing

presentation of the evidence that lacks support in the record.

They nevertheless conclude that Manning forfeited her rights under

the ADA because she was not more resilient in the face of Kohl's

negotiating tactics. This conclusion misapprehends the nature of

the interactive process. While Kohl's approach (as described by

Manning) might be well-suited in some hard-edged business or

diplomatic negotiations, it fits poorly with the type of "good

faith," "interactive process" that the applicable regulations

require here. 29 C.F.R. § 1630.2(o)(3)13; see Enica v. Principi,

544 F.3d 328, 339 (1st Cir. 2008). The EEOC's interpretive

guidance directs employers to use a "problem solving approach" to

identify reasonable accommodations in consultation with the

employee. 29 C.F.R. app. § 1630.9.14 Pursuit of this problem-

13
29 C.F.R. § 1630.2(o)(3) provides that "[t]o determine the
appropriate reasonable accommodation it may be necessary for the
covered entity to initiate an informal, interactive process with
the individual with a disability in need of the accommodation. This
process should identify the precise limitations resulting from the
disability and potential reasonable accommodations that could
overcome those limitations."
14
The EEOC's interpretive guidance on the ADA provides, in
relevant part, that

When an individual with a disability has requested
a reasonable accommodation to assist in the performance

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solving approach requires that the employer, once it becomes aware

of the disability of an employee, "engage in a meaningful dialogue

with the employee to find the best means of accommodating that

disability." Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108

(1st Cir. 2005). Interactive discussions should involve "a flexible

give-and-take with the disabled employee so that together they can

determine what accommodation would enable the employee to continue

working." EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th

Cir. 2005). Here, Kohl's did not give even what it could easily

give.

Accepting as we must for summary judgment purposes the

foregoing presentation of the facts--all well-supported by

of a job, the employer, using a problem solving approach,
should:

(1) Analyze the particular job involved and
determine its purpose and essential functions;

(2) Consult with the individual with a disability to
ascertain the precise job-related limitations imposed by
the individual's disability and how those limitations
could be overcome with a reasonable accommodation;

(3) In consultation with the individual to be
accommodated, identify potential accommodations and
assess the effectiveness each would have in enabling the
individual to perform the essential functions of the
position; and

(4) Consider the preference of the individual to be
accommodated and select and implement the accommodation
that is most appropriate for both the employee and the
employer.

29 C.F.R. app. § 1630.9.

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competent proof in the record--it seems most unfair to say that

Manning forfeited her rights under the ADA. Manning communicated

to Kohl's the fact that she was disabled, she provided specific

medical evidence describing how the swing shifts threatened her

health, and she proposed a specific but flexible accommodation. In

other words, she did everything necessary to enable Kohl's to

determine whether any accommodation was reasonably possible. Cf.

Griffin v. United Parcel Serv., Inc., 661 F.3d 216, 225 (5th Cir.

2011) (employee failed to provide information to show that his

requested accommodation was necessary to manage his diabetes).

Indeed, Kohl's did determine that an accommodation was possible; it

simply never offered it.

The obligation to engage in the interactive process in

good faith arises out of a need to see to it that an employer

receives the information necessary to determine whether an

accommodation is needed, and why. See 29 C.F.R. app. § 1630.9.

Kohl's had all that information, and required nothing more

(including Manning's agreement) to offer that which it had already

determined it could accommodate. The majority seems to conclude

that because Treichler did not authorize Carr to offer Manning the

most favorable accommodation of "a predictable day shift," Carr's

failure to at least offer Manning "no swing shifts" is not evidence

of lack of good faith. In the majority's words, Carr did not

refuse "to extend a requested reasonable accommodation that she had

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been authorized to give" (emphasis added). There are two problems

with this argument.

First, on this record, a jury might well conclude that

Kohl's actually understood that the key thing Manning needed and

that she sought was consistency in the form of no swing shifts.

Dr. Brodsky's note clearly emphasized the problem swing shifts

posed for Manning's blood sugar control. Indeed, Treichler's

response to Carr shows that he at least interpreted the doctor's

note as requesting no swing shifts: "Clearly we can not [sic] have

her not work nights. BUT, we can work with her to avoid the 'swing

shifts'--A [sic] close followed by an open." And Carr documented

in an email that Manning asked her simply, and generally, "why she

couldn't have a more day to day consistent schedule."

Second, let's assume that the majority is correct, i.e.,

that Manning's request could only be interpreted as a request for

something more than no swing shifts, and that Treichler only

authorized Carr to offer an end to swing shifts. The fact remains,

Carr never offered anything, and (if Manning is to be believed) a

jury could find that Carr and Barnes actively misled Manning into

believing that they could offer no accommodation that was not

consistent with the schedules of "all full timers" or available to

everyone else. I would think that a jury could find that such

tactics fell far enough short of "good faith" participation in an

"interactive," "problem solving" process so as to place on Kohl's

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some of the blame for the breakdown of that process. Instead, the

majority rewards Kohl's for withholding even the accommodation it

could make--and misrepresenting its availability--by declaring that

Kohl's wins the whole case as a matter of law. All the employer

now need do is keep its lips moving, not offer anything, imply that

it cannot offer what even it determines it clearly can, and hope

that the employee becomes disheartened enough to give up.

The majority's language betrays a failure to focus on the

role of a jury in this case. The majority observes that Kohl's

negotiating tactics did not "necessarily amount to bad faith"

(emphasis added), so long as it was "earnest." I agree. Therefore

the EEOC does not win on summary judgment. Why Kohl's wins,

though, is not explained. To be blunt, what exactly did Kohl's say

that could not be viewed as an empty gesture, or worse? Kohl's had

two chances to offer no swing shifts, it never offered anything,

and the party who did make an offer and supply requested

information (Manning) loses as a matter of law?

It would therefore appear that the majority reserves a

heightened judicial scrutiny for breakdowns in the interactive

process only when the employee may have erred. In Jacques v.

Clean-Up Group, Inc., 96 F.3d 506 (1st Cir. 1996), the employer

entirely failed to engage in any interactive process, apparently

unaware of its obligation to do so, and claimed to have interpreted

the employee's request for an accommodation as an "implicit

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refusal" to accept a work assignment. Id. at 515. Our court

acknowledged that it was "painfully aware that the [employer's]

failure to engage in an informal interactive process with [the

employee] regarding accommodation options beyond those which he

requested results from its failure to be properly informed of its

obligations under the ADA." Id. We nonetheless sustained a jury

verdict for the employer, noting that "cases involving reasonable

accommodation turn heavily upon their facts and an appraisal of the

reasonableness of the parties' behavior." Id. Somehow, then, a

reasonable jury could find that the oblivious employer in Jacques

did not forfeit its rights, but, according to the majority in this

case, no reasonable jury could find that Manning preserved hers.

And this is apparently so even though Kohl's, like the employee in

Jacques, "was just as well situated, if not better so, to

investigate and suggest other alternatives." Id. at 514.

Certainly no precedent compels the hard-edged view

adopted by the majority as a pronouncement with which no jury could

reasonably disagree. In exonerating the employer in Tobin, our

court stated that "[t]his is not an instance where the employer

. . . simply rejected any request for accommodation without further

discussion." Tobin, 433 F.3d at 109. Unlike the "great deal of

discussion" and "significant action on the part of company

officials" in Tobin, id., a jury could find in this case that

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Kohl's discussed only in form, not substance, and did not act at

all.

Instead, Kohl's approach is closer to that of the

employer in Colwell v. Rite Aid, 602 F.3d 495 (3d Cir. 2010).

There, the employer's manager rejected the requests of a partially

blind employee, who could not drive at night, to be scheduled for

daytime shifts only. Id. at 498-99. The Third Circuit concluded

that the manager's subsequent agreement to a meeting with an

employee, without more, would not compel a jury to find that the

employer was willing to negotiate in good faith after the manager

"had flatly refused all of [the employee's] overtures," and the

employer "d[id] not assert that [the manager] was willing to offer

any accommodations," even though the employee quit before the

meeting. Id. at 507-08; see also Sears, Roebuck & Co, 417 F.3d at

806 ("The last act in the interactive process is not always the

cause of a breakdown . . . and courts must examine the process as

a whole . . . .").

The majority quotes Enica and Phelps for the proposition

that "the process requires open communication by both parties, and

an employer will not be held liable if it makes 'reasonable efforts

both to communicate with the employee and provide accommodations

based on the information it possessed.'" Enica, 544 F.3d at 339

(quoting Phelps v. Optima Health, Inc., 251 F.3d 21, 28 (1st Cir.

2001)). A jury could certainly find that Kohl's did not make

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reasonable efforts to provide accommodations based on the

information it possessed. Indeed, it did not even make a

reasonable effort to provide the accommodation it knew it could

provide. By contrast, in Phelps the employer actually offered

several potential alternative accommodations, and the employee

conceded that she refused to participate in the interactive

process. Phelps, 251 F.3d at 27-28. Likewise, in Enica the

employer did offer and agree to several accommodations during

months of back-and-forth with the employee. Enica, 544 F.3d at

340-42. Kohl's, however, offered nothing.

III. The Constructive Discharge

Because a reasonable jury could find that Manning

reasonably believed that no accommodation was forthcoming or

possible, and that further work without an accommodation posed a

serious health risk, a jury that found Kohl's could have reasonably

accommodated Manning's needs could also conclude that Kohl's

constructively discharged Manning by not doing so. The lack of an

accommodation made Manning's working conditions "so difficult or

unpleasant that a reasonable person in [her] shoes would have felt

compelled to resign," resulting in constructive discharge. De La

Vega v. San Juan Star, Inc., 377 F.3d 111, 117 (1st Cir. 2004)

(quotation marks omitted) (alteration in original). Manning's

doctor's note is clear that the erratic work schedule "induce[d]

additional stress and more sugar fluctuation" and that Manning's

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"diabetes control ha[d] recently deteriorated and exhibit[ed] a

clear stress pattern." That deterioration raised the prospect of

ketoacidosis or a coma. Kohl's unwillingness to give Manning a

predictable schedule subjected Manning to working conditions that

threatened her health. Surely a jury could find such a threat

sufficiently daunting as to compel Manning to defend herself by

refusing to work without the required protection.

Although there may be cases in which an employer fails to

accommodate but does not constructively discharge an employee, as

when working without an accommodation does not jeopardize the

employee's health, here Manning's work schedule put her in harm's

way. The "choice" between working a schedule that exacerbates a

serious medical condition and resigning is not really a choice at

all, and certainly not one that employees should have to make. See

Torrech-Hernández v. Gen. Elec. Co., 519 F.3d 41, 50 (1st Cir.

2008) ("[I]n order for a resignation to constitute a constructive

discharge, it effectively must be void of choice or free will.").

IV. Conclusion

As best as I can tell, this is the first time that any

circuit court has held that an employer can reject an accommodation

request backed up by a doctor's note, refuse to offer an

accommodation that it has determined it can make, falsely claim

that any accommodation must be offered to all workers whether

disabled or not, and then declare the employee's ADA rights

-29-
forfeited when she gives up. Such a holding demands too much

resilience and persistence on the part of a disabled and stressed-

out employee, and takes away from jurors a task they are well-

suited to perform. I respectfully dissent.

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