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Joe Wilkerson worked for Boomerang Tube, LLC first as a general laborer and then as a mill operator. He injured his left hand on December 13, 2010 while operating the mill. He returned to work on restricted duty on December 17, 2010. On that evening at work, he reinjured his hand requiring another visit to the emergency room for stitches and antibiotics. He returned to work on December 20, 2010. There was a dispute whether he returned on light duty or full duty initially, but he did eventually return to full duty.
In April 2011 Wilkerson popped a ligament in his right hand and was placed on light duty. He was scheduled for hand surgery on April 27, 2011. In the meantime, he was offered light duty with instructions not to use his injured hand. There was a good deal of dispute regarding the events of April 21, 2011, which is the date Wilkerson was terminated. Wilkerson claimed that his supervisor was trying to make him do activities that were unsafe for him with one hand and Wilkerson allegedly kept asking if he could work in the store room. He said his supervisor refused to allow this.
Boomerang disputed this version and said that even before the shift started, the company planned to have Wilkerson clean offices. The supervisor claimed that he told Wilkerson to go get the cleaning supplies but fifteen minutes later Wilkerson had done nothing. Wilkerson asked his supervisor if he could work in the storeroom. The supervisor said that Wilkerson did not get to choose the type of light duty he would have to perform. Wilkerson said he could not use a mop or a broom, so his supervisor told him to get some Simple Green and a box of rags to wipe down all the restroom and breakroom fixtures. According to the supervisor, he told Wilkerson he was being insubordinate, to which Wilkerson replied that he would leave and go home. Wilkerson refused to do any wiping down work with one hand. The supervisor called his superior, who then gave approval to fire Wilkerson for insubordination.
Wilkerson sued and alleged that Boomerang discriminated against him based on his disability. He further contended that he could have performed the essential functions of his mill operator job with reasonable accommodations. He suggested the following accommodations: 1) receiving assistance from his supervisor; 2) being assigned a trainee; 3) job restructuring or being permitted to wipe down walls and fixtures; 4) receiving a transfer to a vacant position in the storeroom; or 5) being allowed a short leave of absence.
The Court held that plaintiff failed to show that any of these accommodations was reasonable. First, it held that it is unreasonable to require an employer to assign an existing employee to perform essential functions or to hire new employees for this purpose. Second, it held that the company did not have to relieve Wilkerson of the essential functions of his mill operator job. The purpose of reasonable accommodation is to allow the employee to perform his or her job. Third, the Court said that there is no requirement that the company create a new job in the storeroom for Wilkerson or transfer him to a new job since he never proved that such a job was available and that he was qualified for that job. The Court also held that a request for a short leave of absence is not reasonable because it would not help Wilkerson perform the essential job functions. (This aspect of the Court’s ruling is contrary to New Jersey law).
Since Wilkerson could not show that he could perform his job with any reasonable accommodation, the Court dismissed his law suit. This case can be found atWilkerson v. Boomerang Tube, LLC, 2014U.S. Dist. LEXIS 146695 (E.D. Texas October 15, 2014).
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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 jgeaney@capehart.com.