“And we believe that whether he participated in the interactive process is a factual issue for the jury, we also believe the lower court did not consider evidence in our favor that supported his FMLA claim.” attorney Teri Mastando

A steel manufacturer has urged the Eleventh Circuit to affirm dismissal of a former employee’s discrimination suit, saying the worker rejected its reasonable offer to accommodate his need for a fixed shift after he was diagnosed with depression and anorexia.

Carpenter Technology Corp., headquartered in Pennsylvania, wrote in a brief to the federal appeals court on Wednesday that it did not violate the Americans with Disabilities Act or the Family and Medical Leave Act in respect to former technician Charles Cooke. Carpenter Technology said it helped Cooke, who worked for three years in its Alabama facility, to secure short-term disability benefits, medical insurance and 12 weeks off work under the FMLA.

The company said it also offered Cooke a month’s worth of fixed shifts and the ability to swap shifts with his colleagues indefinitely, upon doctors’ advice that Cooke could return to work but was suffering under a swing-shift schedule. Cooke declined the offer and resigned, the company said.

“Carpenter’s [human resources worker] Kellie Traynom went above and beyond general expectations to assist appellant [Cooke],” Carpenter Technology said in its brief. “Carpenter worked with appellant at every step to attempt to resolve his concerns and accommodate his condition.”

An Alabama federal judge in November granted Carpenter Technology’s summary judgment motion in its favor, dismissing Cooke’s discrimination suit brought against the company in January 2019.

Cooke appealed to the Eleventh Circuit, arguing in a March brief that the trial court judge ignored his efforts to return to work while Carpenter forced him to take leave.

Carpenter Technology hired Cooke in July 2015 as a technician required to rotate between a day shift and swing shift on a biweekly basis, the company said in its brief to the appellate court. Around May 2017, Cooke advised his supervisor that he had developed depression and anorexia, and the supervisor encouraged him to apply for leave under the FMLA.

Carpenter said Cooke took FMLA leave from June through September 2017, and it had to hire an additional technician to perform his work duties. The company said it helped Cooke receive short-term disability benefits during his leave, as well as free health insurance, and encouraged him to apply for long-term disability benefits.

At the end of 2017, Cooke wanted to return to work, though his nurse and counselor said in letters to the company that he should not be working swing shifts, the case record shows.

Carpenter said it canvassed Cooke’s colleagues about swapping shifts and they were willing to do so, but ultimately it decided allowing Cooke to permanently work on a fixed shift would be detrimental to the business and his coworkers.

“Based on the company’s production schedule, required rotating shifts, concern regarding employee morale and the consequence of having to either hire an additional employee to shoulder appellant’s workload on a permanent basis in the event that appellant was assigned to work only day or night, [the company] ultimately decided to accommodate appellant’s request to work a single, non-rotating shift for 30 days, rather than on a permanent basis,” Carpenter said.

The company contends Cooke unreasonably interrupted the interactive process to accommodate his disability by refusing its offer and quitting. Cooke was also not a statutory qualified individual with a disability, because he couldn’t perform the essential function of working a rotating shift, Carpenter argued.

The company rejected Cooke’s argument that he was forced to take 12 weeks of leave and that this violated his FMLA rights.

Teri R. Mastando of Mastando & Artrip LLC, an attorney for Cooke, told Law360 that he is currently employed elsewhere in Alabama. She said the plaintiff team is confident they’ll win their appeal, because the lower court found there was a genuine issue of material fact over whether Cooke requested a reasonable accommodation when asking for a permanent fixed shift.

“And we believe that whether he participated in the interactive process is a factual issue for the jury,” Mastando said on Thursday. “We also believe the lower court did not consider evidence in our favor that supported his FMLA claim.”

Mastando said that Cooke could have returned to his technician job because his colleagues were willing to swap shifts with him, so he did not have to work swing shifts. She said Cooke’s immediate supervisor considered that to be a reasonable accommodation.

Counsel for Carpenter did not immediately respond to a request for comment.

Cooke is represented by Eric J. Artrip and Teri R. Mastando of Mastando & Artrip LLC.

Carpenter Technology is represented by Thomas A. Davis and Kimberly R. Ward of Jackson Lewis PC.

The case is Charles Cooke v. Carpenter Technology Corp., case number 20-14604, in the U.S. Court of Appeals for the Eleventh Circuit.

Read more at: https://www.law360.com/articles/1384317/steel-co-fights-ex-worker-s-bid-to-revive-discrimination-suit?or_pk=cee04f46-a506-49e3-a072-ca116f342105&utm_source=campaign-reports&utm_medium=email&utm_campaign=mastando-artrip-campaign?copied=1


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