Background
Ibrahima Dieng worked for Orkin as a pest control technician until a workplace knee injury left him unable to perform that physically demanding job. After his physician cleared him for less strenuous work, Dieng repeatedly asked Orkin about light-duty employment and supplied information concerning his restrictions. According to the summary-judgment record viewed in Dieng’s favor, Orkin did not discuss his limitations or possible reassignment with him and left him on unpaid leave for 16 months, after which he resigned.
Dieng identified customer-service and sales-representative vacancies that Orkin filled after he requested reassignment. He sued under the Americans with Disabilities Act, alleging failure to accommodate and unlawful termination based on disability. The district court granted Orkin summary judgment on both claims, reasoning in part that Dieng could not perform his pest-control job and that unpaid leave was a reasonable accommodation.
The Court’s Holding
The Fourth Circuit majority vacated summary judgment on the failure-to-accommodate claim. When reassignment is the requested accommodation, the relevant question is whether the employee can perform the essential functions of the desired position, not the job he can no longer perform. The record supported a finding that Dieng could perform customer-service work and created factual disputes concerning the essential functions of sales positions and his ability to perform them. A jury also could find that Orkin failed to engage in the interactive process despite Dieng’s repeated requests and that vacant positions made an effective accommodation possible.
The majority further held that indefinite unpaid leave was not an effective accommodation on this record because Orkin knew Dieng’s condition was not temporary and that he could not return to his former position. It remanded the accommodation claim for further proceedings but affirmed summary judgment on the unlawful-discharge claim because Dieng had not administratively exhausted it. His original and amended agency charges alleged failure to accommodate, predated his resignation, and did not encompass a termination claim.
Judge Quattlebaum concurred in affirming the discharge ruling and agreed that part of the accommodation claim should be remanded, but disagreed with the majority’s scope. He would have permitted further consideration only of customer-service vacancies filled at three Virginia branches in November and December 2016 and would have affirmed summary judgment concerning sales positions, which he viewed as incompatible with Dieng’s light-duty restrictions.
Key Takeaways
- For an ADA reassignment request, qualification turns on the essential functions of the desired vacant position rather than those of the employee’s former job.
- Indefinite unpaid leave is not necessarily a reasonable accommodation, particularly when the employee’s restrictions are permanent and reassignment may be available.
- An employer’s failure to engage in the interactive process can support liability when a reasonable accommodation was possible.
- An ADA discharge claim must be administratively exhausted and cannot rest solely on an earlier agency charge alleging failure to accommodate.
Why It Matters
The decision directs employers to evaluate possible reassignment when a disability permanently prevents an employee from returning to an existing role. Simply retaining the employee on unpaid leave may be ineffective where vacancies exist and the employer has not explored whether the employee can perform them.
The divided opinion also highlights unresolved factual and legal limits on reassignment, including which positions qualify, how broadly an employer must search across locations, and whether a vacancy’s actual duties fit the employee’s restrictions.