State News : New Jersey

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New Jersey



Derrick Dillard injured his back and shoulder in a work-related car accident in March 2011.  He was unable to perform his previous duties as a Street and Drainage Maintenance Senior for the City of Austin, Texas.  He took FMLA leave and then placed in the City Return to Work Program, which was designed to help employees like Dillard find alternative work for a maximum of 180 days in a year.

Dillard exited the Return to Work Program in January 2012. During the entire period he was enrolled in the program, the City was unable to place him in any position because he remained on a “no duty status.”  The City continued to allow him to remain on leave. Between late January and late April 2012, Dillard was released by his doctors to perform “limited duty” or “administrative duty” work.  The City offered him “administrative work” from May through October 2012.

Dillard lacked the three years of clerical or secretarial experience for an administrative assistant position, so the City offered him on-the-job typing and computer training.  Dillard’s supervisor testified that she repeatedly told Dillard to complete more training and showed him how to sign up for more training, but Dillard did not do so.  He was found playing computer games, surfing the internet, sleeping, making personal calls or looking for other positions while he was supposed to be training.  He missed work without proper notice, came late and left early, and lied about his time.  He attended work only 74% of the time over a 21-week period.  The City gave him an unsatisfactory rating.

For his part Dillard admitted that his lack of typing skills made it impossible for him to complete the one assignment he was given.  He asked Human Resources to give him another position.    Meanwhile, Dillard’s doctors were increasing his capacity to perform certain lifting and physical activities.  The City scheduled him for a pre-termination meeting based on his poor performance while on administrative duty.  The Director noted that Dillard was unapologetic for his inappropriate behavior and admitted that comments about his poor performance were accurate. The City fired Dillard on October 26, 2012.

Dillard sued for discrimination under the ADA and argued that the City should have considered him for vacancies across all departments, not just the Public Works Department, once it became obvious that he lacked the skills of an administrative assistant.  The lower court disagreed and noted that the breakdown in the interactive process was caused by Dillard’s failure to make a good faith effort to make the administrative position work.

The Fifth Circuit Court of Appeals held that the City did not fire Dillard because of any disability but because he was frequently late, used work time to play games, and failed to take advantage of training opportunities.  The Court conceded that the City had a duty to make reasonable accommodation and engage in the interactive process. “Dillard’s position neglects that the interactive process is a two-way street; it requires that employer and employee work together, in good faith, to ascertain a reasonable accommodation.”  The Court said that the City made a reasonable accommodation with the administrative assistant position.  “At this point, the ball was in his court; it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.”  The Court felt it was pivotal that the City offered him training which Dillard neglected.

The case can be found at Dillard v. City of Austin, Texas, 837 F.3d 557 (5th Cir. 2016). It is an interesting case because there are so few published cases where the plaintiff is fired while on alternative duty and while performing inadequately during alternative duty.  Clearly the case’s reasoning makes sense:  when an employee’s job performance is grossly sub-par during alternative duty, and where the employee does not take advantage of offered accommodations, the employee has no argument that his termination is a violation of the ADA.


John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group.  Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at