Hertz Wins Supported Employment Case against EEOC
8 January 1998
Hertz Defeats EEOC in Supported Employment Case; Detroit Federal Court Grants Summary Judgment
PARK RIDGE, N.J., Jan. 8 -- A Federal District Court in
Detroit, in a law suit brought by the Equal Employment Opportunity Commission
(EEOC), found nothing discriminatory in The Hertz Corporation's dismissal of a
job coaching service after two of the service's employees, a man and a woman,
had engaged in what the court described as "making out" while on Hertz'
premises.
Judge John Feikens of the U.S. District Court for the Eastern District of
Michigan, Southern Division, granted Hertz' motion for summary judgment,
dismissing the EEOC's law suit.
The EEOC, in its suit brought against Hertz in May 1996, claimed that
Hertz had effectively terminated two mentally handicapped individuals
performing part-time, seasonal jobs by dismissing the coaching service that
supported them. It labeled this action discriminatory under the Americans
with Disabilities Act.
The court, however, in its 11-page decision, said, "this is a case in
which there is no discrimination whatever." The judge further stated that,
"Hertz should be complimented for what it tried to do here - not sued."
Underlying the court case were events dating back to 1994, when Hertz in
Detroit had been approached by Arkay, Inc., a job coaching service, regarding
the possible employment of two mentally handicapped individuals. Arkay would
provide the necessary coaches to support the individuals in the performance of
their jobs.
Hertz created two part-time, seasonal positions as a response to Arkay,
but experienced problems with the conduct of Arkay's coaches, three months
later culminating in the serious misconduct that precipitated the dismissal of
Arkay.
With Arkay unwilling to transfer the two mentally handicapped individuals
to another coaching service, Hertz was unable to maintain their employment
unsupported. Arkay then went to the EEOC, contending discrimination, and the
EEOC filed suit.
The court, in its decision, took the EEOC to task for bringing an action
against Hertz. It stated, "This case should not have been brought against
Hertz; EEOC's focus was misplaced. EEOC should have advised Arkay that this
was not a case of discrimination against handicapped persons but rather a
breakdown in Arkay's procedures in affording assistance to handicapped
people."
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Case No. 96-72421
Hon. John Feikens
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
V.
HERTZ CORPORATION
Defendant/Third-Party Plaintiff,
V.
ARKAY, INC.,
Third-Party Defendant.
OPINION AND ORDER
I. Background
Chief Justice Earl Warren would often ask when judging a case: "Is it
fair, is it just?" That question must be asked in this case. The Equal
Employment Opportunity Commission (EEOC) and Arkay, Inc. (Arkay), a
federally-funded entity which supplies job coaches to assist handicapped
persons, have combined in this suit to seek sanctions against the Hertz
Corporation (Hertz). They now have been joined by several groups, Disability
Rights Advocates and Michigan Protection and Advisory Services, as amici, who
support that effort.
With this array, one must ask what it is in this case that brings the EEOC
and these rights advocate agencies together to pursue this matter.
One need not look far.
Arkay, Inc. is the motivator.
Arkay has an appealing approach. It seeks out employers, like Hertz, and
makes a proposal: that if the employer will hire a handicapped person, it
(Arkay) will provide a job coach, free of charge, to the employer, who will
assist the handicapped person in doing some work for the employer. Arkay is
paid for these efforts by federal government funding.
This is what happened in this case. In early 1994, Arkay went to Hertz
and pointed out to it that at its rental car operations at Detroit
Metropolitan Airport, it could hire two handicapped persons (mentally
retarded) who could work a limited number of hours each day (approximately
four hours - the record is not clear), and they would be trained and assisted
by two job coaches provided by Arkay. It is clear in the record that these
handicapped persons (Donald Klem and Kenneth Miller) would not be able to do
the intended work, picking up trash in the Hertz parking lot, without training
by and the actual supervision of the job coaches.
Hertz agreed, and the venture started. But it soon went awry. It appears
that the job coaches furnished by Arkay had other distracting interests. One
day (the record is not clear if this was the first time, or the only time),
the job coaches had Mr. Klem and Mr. Miller seated in the back seat of a car
while they, a man and a woman, according to current jargon, were "making out"
in the front seat. It is not clear from the record just what was going on.(1)
Hertz claims that four or five of its supervisors saw rather passionate
lovemaking, while EEOC and Arkay claim the two were exchanging gifts and
thanking each other with kisses.
When the event in the car was observed by the Hertz supervisors, the job
coaches were ordered off the premises and the jobs of Messrs. Klem and Miller
were terminated. What happened next is that Arkay went to the EEOC and
claimed that a violation of the Americans With Disabilities Act (ADA) had
occurred and EEOC had better do something about it.
This suit followed.
Plaintiff's major contention is that Hertz, having hired Messrs. Klem and
Miller, now have a continuing duty to employ them, and that Hertz must provide
reasonable accommodation to continue their training and employment. That
reasonable accommodation, EEOC argues, would require Hertz to find other job
coaches to train and supervise Mr. Klem and Mr. Miller.
When Arkay first approached Hertz, and asked it to hire Mr. Klem and Mr.
Miller, Hertz had no legal obligation to do so. See Reigel v. Kaiser
Foundation Health Plan of N.C., 859 F. Supp. 963 (E.D.N.C. 1994).
When it did hire these men, it was essential that they be accompanied,
while being trained and working on Hertz's premises, to be supervised by
competent job coaches. Arkay committed itself to provide this important
accommodation; it was the essential element, the consideration for the
contract. That employment contract was breached by Arkay because of the
conduct of its incompetent job coaches.
In this bizarre situation, EEOC, Arkay and the amici now seek to impose a
legal obligation on Hertz that they say is compelled by 42 U.S.C. section
12112 (ADA). Their complaint "relates solely to Hertz's failure to reasonably
accommodate Klem and Miller ..." This alleged failure to so accommodate, they
claim, is discrimination.
Now to the facts that are not in dispute.
This case has its origins in defendant Hertz's April 1994 decision to
contract with Arkay, Inc., for an employment service for individuals with
developmental disabilities.(2) Arkay representative Susan Skibo contacted
Hertz as to the possibility of employing Arkay personnel. Ms. Skibo
eventually contacted Keith Lamb, one of Hertz's senior station managers at its
Detroit Metropolitan Airport location, and outlined to him the arrangement
that Arkay wanted to structure with Hertz: in exchange for Hertz's provision
of menial tasks for Arkay's developmentally handicapped individuals, Arkay
promised to provide job coaches to train them, to closely supervise them and,
if necessary, tend to any of their medical needs. If Hertz would agree to
employ and pay the handicapped individuals, Arkay would provide and pay the
job coaches.
Mr. Lamb expressed some misgivings, but promised to speak to his
supervisor, Gary Wellman, about Arkay's proposal. Mr. Lamb spoke with Mr.
Wellman and told him that, in light of litter problems Hertz had on its
premises, Arkay's proposal "might be something that would be good to try."
(Lamb dep. at 15). Mr. Wellman, in turn, took the matter to his supervisor,
Michael Kieleszewski, who sought and then obtained permission from Hertz
Headquarters to accept Arkay's offer.(3)
Arkay is funded by Medicaid in an arrangement that it has with Wayne
Community Living Services (WCLS), and that entity works with and through Arkay
to provide supported employment for mentally retarded persons. The record
indicates that on behalf of WCLS, Arkay entered into this employment agreement
with Hertz, which Arkay states in its Answer to Hertz's Third-Party Complaint
against it, Para. 9, would be on a trial basis.
The term "'supported employment,' which has been applied to a wide variety
of programs to assist individuals with severe disabilities in both competitive
and non-competitive employment, is not synonymous with reasonable
accommodation." The Interpretative Guidance to Reg. 29 CFR 1630.9 states that
an example of supported employment might include providing "a temporary job
coach to assist in the training of a qualified individual with a
disability ..."
Before Messrs. Klem and Miller could be hired, however, Hertz had to make
additional accommodations. First, Hertz agreed to waive its usual application
and interview process. Hertz also allowed Messrs. Klem and Miller to take a
paid half-hour break, even though their shift lasted only four hours. Most
important, Hertz allowed Messrs. Klem and Miller to have supportive "job
coaches."
The record also indicates that Hertz did not hold Messrs. Klem and Miller
to the higher standards of its other employees. On one occasion, Mr. Lamb saw
Mr. Klem spit on the floor inside Hertz's car return building, an area used by
Hertz customers. Mr. Lamb did not discipline Mr. Klem; he wanted to give Mr.
Klem an opportunity to adjust to his new environment. Mr. Miller and Mr. Klem
also were not held to the attendance standards of other employees. Mr. Lamb
testified that the pair missed work without penalty. Deposition testimony
also raises serious questions whether, even with a job coach, Mr. Klem could
perform the essential functions of his job. Both Mr. Lamb and one of Mr.
Klem's job coaches testified as to incidents in which Mr. Klem spent part of a
workday staring at airplanes overhead and refused orders from his job coach to
do his job.
Hertz did accommodate to this. Hertz claims, however, that it could not
tolerate problems created by the job coaches assigned to Messrs. Klem and
Miller. The first job coach that Arkay sent was "mean" to Messrs. Klem and
Miller. Hertz requested that this coach be replaced. Arkay granted this
request and, for a time, provided a job coach that met Hertz's expectations.
This second job coach was subsequently replaced by another coach who, on
June 7, 1994, was involved in the incident which precipitated the termination
of Hertz's relationship with Arkay.
To this incident Hertz's response was swift. One of its managers
confronted the job coaches and promptly told them to leave Hertz property.
Hertz then contacted Arkay and severed its relationship with that company.
Even though, at that point, it could have easily have done so, Arkay refused
to turn Messrs. Klem and Miller over to another job agency performing the same
function that Arkay performed.(4) Instead, Arkay threatened to, and
eventually did, contact EEOC and induced it to institute this action. The
record is not clear that Arkay ever informed Wayne Community Living Services,
of this situation, or that Arkay received WCLS's consent to secure other job
coaches, i.e., organizations that, like Arkay, could have provided this type
of employment support to Messrs. Klem and Miller.
II. Analysis
The comment of Judge Richard Posner in Vande Zande v. State of Wisc. Dept.
of Admin., 44 F.3d 538 (7th Cir. 1995), is instructive:
(I)f the employer ... bends over backwards to accommodate a disabled
worker - goes farther than the law requires - ... it must not be punished
for its generosity by being deemed to have conceded the reasonableness of
so far reaching an accommodation. That would hurt rather than help
disabled workers.
While, as is pointed out hereinafter, EEOC cannot even come close to
establishing a prima facie case of disability discrimination against Hertz,
this is a case in which there is no discrimination whatever.(5) The teaching
of the ancient fable is instructive: it took a child to point out to the
crowd admiring what they thought was an ornately dressed emperor riding a
horse, that the emperor had no clothes on at all. EEOC's position fits that
fable. One wonders why that agency is unable to see clearly what it is
attempting to claim. Hertz should be complimented for what it tried to do
here - not sued. How does EEOC expect to further the goal of assisting
handicapped persons that employers will hire if it seeks to punish them
for their generosity?
Putting that aside for the moment, and taking on EEOC's argument that it
has here a prima facie case, EEOC cannot and does not establish a prima facie
case of discrimination required by ADA.
Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996),
teaches that, to establish a prima facie case, a plaintiff must show that
1) he or she is disabled, 2) is otherwise qualified for the job, with or
without "reasonable" accommodation, 3) suffered an adverse employment
decision, 4) the employer knew or had reason to know of his or her
disability, and 5) after rejection or termination the position remained
open, or the disabled individual was replaced. (Citations omitted)
It is clear that plaintiff does not and cannot establish factor 2).
Messrs. Klem and Miller are not qualified for the job because accommodation to
permit them to function was not provided by Arkay (or anyone else). It is not
the duty, obligation or responsibility of Hertz to provide job coaches, either
on a temporary basis or on a permanent basis, to train and supervise these
handicapped individuals.
It is also clear that after Messrs. Klem and Miller were terminated due to
Arkay's breach of the trial arrangement that these positions (Klem's and
Miller's) did not remain open. These positions ceased when the arrangement
failed. It is also clear that they (Klem and Miller) were not replaced.
The result in this case was not brought about by Hertz. Arkay and,
perhaps, Wayne Community Living Services had a responsibility for "picking up
the pieces," and should have initiated a reopening of the arrangement with
Hertz. The record indicates that had Arkay "made such an offer, Hertz would
have seriously considered extending the employment" of Mr. Klem and Mr.
Miller.
But, even more important, the position of the EEOC is troublesome. This
case should not have been brought against Hertz; EEOC's focus was misplaced.
EEOC should have advised Arkay that this was not a case of discrimination
against handicapped persons but rather a breakdown in Arkay's procedures in
affording assistance to handicapped people.
Even EEOC's Interpretative Guidance stands in its way. The guidelines
provide at 29 CFR 1630.9 that:
The term "supported employment," which has been applied to a wide variety
of programs to assist individuals with severe disabilities in both
competitive and non-competitive employment is not synonymous with
reasonable accommodation. Examples of supported employment include
modified training materials, restructuring essential functions to enable
an individual to perform a job, or hiring an outside professional ("job
coach") to assist in 'job training.' Whether a particular form of
assistance would be required as a reasonable accommodation must be
determined on an individualized, case by case basis without regard to
whether that assistance is referred to as "supported employment." For
example, an employer, under certain circumstances, may be required to
provide modified training materials or a 'temporary' "job coach" to
assist in the 'training' of a 'qualified individual' with a disability as
a reasonable accommodation.(6) (Emphasis added)
If a temporary job coach providing job training to a qualified individual
may be a reasonable accommodation, the clear implication is that a full-time
job coach providing more than training to unqualified individuals is not.
Caselaw supports this view. Ricks v. Xerox Corp., 877 F.Supp. 1468
(D.Kan. 1995), is on point. In that case, the district court ruled that an
employee's request for a full-time "helper" to assist in the performance of
the essential functions of his job was unreasonable as a matter of law. A
similar result was reached in Gilbert v. Frank, 949 F.2d 637 (CA 2 1991), in
which the U.S. Court of Appeals for the Second Circuit held that it was
unreasonable to have two people performing the same tasks normally performed
by one. Insisting that Messrs. Miller and Klem have a full-time job coach to
assist in the performance of job duties on a permanent basis is, likewise,
unreasonable.
Neither party disputes that Hertz had no initial obligation to hire
Messrs. Klem and Miller. See Reigel, supra, at 963, 973: "(The ADA) cannot
be construed to require an employer to make fundamental or substantial
modifications in its operations to assure every disabled individual the
benefit of employment."
EEOC, in the face of this precedent and in spite of its inability to point
to any case mandating that a full-time job coach is a reasonable
accommodation, advances the incredible argument that, because Hertz could have
obtained a job coach for Messrs. Klem and Miller at no cost to itself, the
provision of a job coach is a per se reasonable accommodation, and must be
provided.
Plaintiff seeks to establish an expanded liability for putative employers
who consider hiring handicapped persons, i.e., that once an employer evidences
an intent to and does provide employment for a handicapped person with support
for that person of a job coach, it is obligated to continue that relationship
in perpetuity and without regard to any event(s) that make that employment
relationship untenable. The ADA does not require this.
III. Conclusion
The motion brought by Hertz for summary judgment is GRANTED.
IT IS SO ORDERED.
JOHN FEIKENS
John Feikens
United States District Judge
Dated: January 6, 1998
NOTES:
(1) The female participant is still employed with Arkay. The male
participant was apparently married at the time. The female participant
downplayed the incident, saying that she and her paramour were merely engaged
in a "prolonged hug." The male participant was apparently never deposed.
(2) Arkay is funded, at least in part, by Medicaid.
(3) Prior to accepting Arkay's offer, Hertz had no employees assigned
specifically to cleaning the parking lot. Hertz created positions for Messrs.
Klem and Miller to do this. The positions have not been filled since Mr.
Klem's and Mr. Miller's employment was terminated.
(4) Two Hertz managers, Gary Wellman and Michael Kieleszewski, testified
that, had Arkay made such an offer, they would have considered extending the
employment of Messrs. Klem and Miller.
(5) In cases brought under Title VII of the Civil Rights Act of 1964
(see 42 U.S.C. section 2000a-2(a)(1)), once an employer proffers a legitimate,
nondiscriminatory reason for a challenged employment decision, as Hertz has
done in this case, the McDonnell-Douglas burden shifting framework becomes
irrelevant; the only thing left to be decided is the ultimate question:
whether defendant engaged in discrimination. See St. Mary's Honor Society v.
Hicks, 509 U.S. 502, 510-512, 113 S.Ct. 2742, 2748-2750, 125 L.Ed.2d 407
(1993). The same reasoning applies to claims of discrimination brought under
ADA.
(6) The single-quoted portions deserve special attention. To begin with,
there is no dispute here that the role of the job coaches in this case went
far beyond that of "job training." The record reflects that the coaches
supervised, disciplined, and assisted in the performance of work. In
addition, Arkay representative Susan Skibo testified that neither Mr. Klem nor
Mr. Miller had ever worked without the full-time assistance of a job coach.
Ms. Skibo further testified that they would always need this full-time
assistance. Finally, while there is an issue of fact with regard to whether
Messrs. Klem and Miller were qualified individuals, the fact that they
required full-time assistance for more than job training moots, for purposes
of summary judgment, the factual dispute.
SOURCE Hertz Corporation
