(citation omitted)), aff'd, 250 Fed.Appx. 552 (4th Cir. 2007). And, importantly, the RA “does not require that an employer create a new position for a disabled employee.
The evidence presented requires the conclusion that having vendors conduct inspections of roofs for Saphilom would not remediate all the job-related difficulties presented by her disabilities, and that having fellow Field Claims Specialists or vendors handle all physically strenuous inspection activities would shift essential "physical duties of her position to another employee" or contractors. Wells v. BAE Sys. Norfolk Ship Repair, 483 F. Supp. 2d 497, 509-10 (E.D. Va.), aff'd, 250 F. App'x 552 (4th Cir. 2007). As such, summary judgment must be granted to Nationwide.
Indeed, to the extent Plaintiff was effectively requesting a change in his performance standards or reduced stress from his job demands, courts have routinely held that such a change is not a reasonable accommodation. E.g. Lucas v. W. W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir. 2001) ("[E]mployers are not required to transform the position into another one by eliminating functions that are essential to the nature of the job as it exists."); Wells v. BAE Sys. Norfolk Ship Repair, 483 F. Supp. 2d 497, 509-10 (E.D. Va. 2007), aff'd, 250 Fed. Appx. 552 (4th Cir. 2007) (employer not required to eliminate specific job duties of position); Anderson v. Arizona, No. CV06-00817-PHX-NVW, 2007 U.S. Dist. LEXIS 36399, at *19-20 (D. Ariz. May 15, 2007) (finding a request for a reduced workload beyond the position's minimum workload requirement to be "inherently unreasonable"); Carozza v. Howard Cnty., Md., 847 F. Supp. 365, 368, (D. Md. 1994), aff'd, 45 F.3d 425 (4th Cir. 1995) (holding Rehabilitation Act does not require "an employer so to 'restructure' a job as to change its fundamental requirements, such as the ability to cope with its inherent stressors"). Here, Plaintiff has not provided any evidence to indicate that a general, unspecified change in his performance standards, as he requested, is a reasonable request.
Thus, a plaintiff must show that a reasonable accommodation existed before a court may find that an employer's purported failure to engage in an interactive process was unlawful. Jackson v. City of Chicago, 414 F.3d 806, 813 (7th Cir. 2005); Wells v. BAE Sys. Norfolk Ship Repair, 483 F. Supp. 2d 497, 511 (E.D. Va.) aff'd, 250 F. App'x 552 (4th Cir. 2007). The plaintiff has not done so here.
However, the Plaintiff argues that the Defendant failed to accommodate him by not allowing him to return to work in a different position on the Hospital's North Side. The Plaintiff has the burden to demonstrate that an accommodation is reasonable. Wells v. BAE Sys. Norfolk Ship Repair, 483 F. Supp. 2d 497, 509 (E.D. Va. 2007), aff'd, 250 F. App'x 552 (4th Cir. 2007) (per curiam). Offering a different employment position as a reasonable accommodation is typically a last resort.
Moreover, defendant's concession that it did not construe the letter as a formal RAR and therefore did not engage in the usual interactive process is not sufficient evidence, standing alone, to support a viable claim. See Wells v. BAE Sys. Norfolk Ship Repair, 483 F.Supp.2d 497, 511 (E.D.Va.2007)aff'd, 250 Fed.Appx. 552 (4th Cir.2007) (internal citations omitted) (holding that an employee must demonstrate that the employer's failure to engage in the interactive process resulted in the failure to identify an appropriate accommodation for the qualified employee). Nor is it presumptively discriminatory for an employer in defendant's position to refuse a plaintiff's request for an accommodation that it correctly deems unreasonable.
Kitchen v. Summers Continuous Care Ctr., LLC, 552 F. Supp. 2d 589, 596 (S.D. W. Va. 2008) (internal citations and quotation marks omitted). The plaintiff has the burden of persuasion with respect to demonstrating that an accommodation is reasonable. Wells v. BAE Sys. Norfolk Ship Repair, 483 F. Supp. 2d 497, 509 (E.D. Va. 2007) aff'd, 250 F. App'x 552 (4th Cir. 2007). Ms. Moore has not met that burden.