Jury question exists as to
whether insurance company was required to provide sales
representative (who suffered from bipolar disorder) with
more lucrative accounts as a reasonable accommodation.
Tobin v. Liberty Mutual Ins. Co., 433 F.3d 100 (1st
Cir. December 23, 2005) - This is an ADA action alleging
termination because of disability and failure to provide
reasonable accommodation. Kevin Tobin suffers from
bipolar disorder. This condition affects his
organizational skills. Since 1968, Tobin has been a
sales representative. However, in 1992 his sales
performance began declining. He did not disclose to
Liberty Mutual that he suffered from bipolar disorder
until 1997. Liberty Mutual provided several
accommodations to Tobin, but he was finally terminated
in January 2001. Tobin then brought this lawsuit. The
district court granted summary judgment on behalf of
Liberty Mutual. The First Circuit affirms in part and
vacates in part. With respect to his claim that he was
terminated because of his disability, the First Circuit
agrees with the district court that Tobin failed to show
that the proffered reason for his termination (poor
sales performance) was a pretext for disability
discrimination. With respect to the reasonable
accommodation claim, Tobin argues that he should have
been assigned "MM accounts" as a reasonable
accommodation. Mass Marketing ("MM") accounts are group
insurance discount programs offered to businesses and
associations throughout the United States. MM accounts
provide sales representatives with access to employees
of participating employers in workplace settings and
thereby afford sales representatives exposure to a large
volume of potential clients. Therefore, these accounts
are a good source for potential sales. Liberty Mutual
argued that awarding Tobin an MM account would change
the essential functions of his job by requiring the
company to ignore its own performance standards (which
required that MM accounts be assigned based on merit).
But Tobin provided evidence that the assignment of MM
accounts was more subjective. The Court finds that the
district court erred in granting summary judgment for
Liberty Mutual on the reasonable accommodation claim
because there is a disputed material fact as to whether
the assignment of an MM account to Tobin would have
altered the essential functions of his job. Circuit
Judge Howard writes a concurring opinion in which he
states that the lead opinion is misinterpreting the
district court's ruling. According to Judge Howard, the
district court granted summary judgment on the
reasonable accommodation claim because the district
court believed that the assignment of an MM account did
not qualify as an accommodation because it was not
designed to accommodate his disability (bipolar
disorder, which resulted in an inability to organize).
But even though Judge Howard believes the lead opinion
misunderstands the district court's decision, the
correct result was reached for the following reasons.
Tobin's biggest problem was identifying potential new
customers and going to see them, but he did a good job
at closing the sale. An assignment of a Mass Marketing
account would have helped him overcome his
disability-related problem of being insufficiently
organized to identify and pursue new clients. Therefore,
the assignment of an MM account could qualify as an
accommodation of his disability. One other issue
addressed in the lead opinion is whether Liberty Mutual
engaged in the interactive process. Although the Court
noted that this is part of the reasonable accommodation
analysis, the Court addressed the issue separately since
the parties had briefed it separately. The Court found
no failure to engage in the interactive process where
Liberty Mutual had provided Tobin the following
accommodations: provision of a nurse, computer training,
and numerous meetings to help Tobin create the skills
and plans to increase his sales effectiveness. [Editor's
Note: There is no discussion as to whether these
proffered accommodations should have been sufficient for
Liberty Mutual to meet the ADA's requirement to offer
reasonable accommodations to Tobin.]
