ADA Doesn't Require Employer to Keep Customer-Facing Employee Whose Tourette's Leads Him to Use Slurs

The court reasoned that "excellent customer service is an essential function of [the employee's] specific delivery merchandiser position," and the employee couldn't provide it.

From Cooper v. Dolgencorp, LLC, decided 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]. Prior to CCCI hiring Cooper, he had already been diagnosed with Tourette Syndrome. Tourette Syndrome causes unwanted, involuntary muscle movements and sounds known as "tics." For Cooper, his Tourette Syndrome has a rare tic symptom known as coprolalia. The condition causes Cooper to use obscene and inappropriate vocalizations, including profanity (bitch) and a racial slur (nigger)….

This led to repeated customer complaints, and eventually 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 "Needs to be present with another driver," presumably because that was the only way he could avoid customer contact.)

Cooper sued under the Americans with Disabilities Act, under which

(1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The plaintiff bears the burden of establishing that he or she is "otherwise qualified" for the position despite his or her disability: (a) without accommodation from the employer; (b) with an alleged "essential" job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.

The court concluded that CCCI was entitled to summary judgment:

[Cooper] argues that he was otherwise qualified for the delivery merchandiser position without an accommodation. If this is true, then CCCI's decision to transfer Cooper to the warehouse because of 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 delivery merchandiser position without an accommodation. Was excellent customer service an essential function of Cooper's position at CCCI? If so, could Cooper perform that 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 Cooper's specific delivery merchandiser 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) a limited number of employees are available that can perform it, or (3) it is highly specialized." Congress has instructed courts to consider "the employer's judgment" in determining the essential functions of a job. A written job description is "evidence of the essential functions of the job."

CCCI identifies "[e]xcellent customer services skills" in its written job description for the delivery merchandiser position as part of the knowledge, skills, and abilities necessary to perform the job. And, crucially, Cooper stipulates that excellent customer service was an essential function of the delivery merchandiser position. Our analysis of the first question ends there.

We next consider whether Cooper could provide excellent customer service to CCCI's customers without an accommodation…. A reasonable jury could not find that Cooper could provide excellent customer service to CCCI's customers in his role as a delivery merchandiser without an accommodation. Of particular importance, Cooper's own doctor noted that Cooper needed an accommodation to perform his job duties. When a plaintiff's own doctor—not merely the defendant employer—concludes that the plaintiff cannot perform his job without an accommodation, the plaintiff likely cannot establish that he is otherwise qualified to perform the job without an accommodation.

Cooper's disability, moreover, caused him to vocalize racist and profane words in the presence of others in the stores of CCCI's customers. At various times during his employment, CCCI's customers complained about the language he used while delivering CCCI's products. In fact, Cooper acknowledges many of the customer complaints made against him in his amended complaint….

Cooper makes several arguments in response…. [Among other things,] Cooper argues, relying on Taylor v. Food World, Inc. (11th Cir. 1998), that a material factual dispute exists regarding whether he could provide excellent service to CCCI's customers without offending them. Taylor does not help Cooper. In Taylor, a minor, who had been diagnosed with Asperger's disorder that caused him to engage in echolalia (repetitive speech), worked as a clerk for Food World bagging groceries and taking groceries to customers' vehicles. Food World terminated the minor after receiving complaints from customers about the minor "speaking loudly and sometimes asking customers personal questions." The Eleventh Circuit reversed the district court's grant of summary judgment to Food World, finding there was a factual dispute about whether the questions the minor posed to customers were offensive. But here, there is no reasonable dispute that Cooper's use of racist and profane language was offensive.

This case is more like 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 placed him in regular contact with Kroger's 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 found that summary judgment in Kroger's favor 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 such a route wouldn't have been a viable reasonable accommodation.

Jeffrey D. Patton of Spilman Thomas & Battle, PLLC represents CCCI.