This Case Illustrates Why You Always Need to Read the Footnotes

Before getting started on the blog entry of the week, I do want to recognize the passing of Dolly Parton. I grew up on her music. She will probably go down as one of the greatest songwriters of all time not to mention one of the greatest recording artists of all time, an actress (who can forget 9-5. For science-fiction fans, there was an incredible episode in the Orville where her songs were used as the basis for a feminist revolution on an alien planet), and a brilliant businesswoman as well. It has been fascinating to see over the last week just how much she impacted people across the entire political and musical spectrum. She will definitely be missed. I have many of her songs in my playlist on Spotify.

Turning to the blog entry for the week, the case is a published decision from the Fourth Circuit that came down on August 21, 2026, Billesdon v. Wells Fargo Securities, LLC, here. Many other labor and employment lawyers have blogged on this case, but I thought I could add my own perspective. As usual, blog entry is divided into categories, and they are: facts; why Wells Fargo is entitled to judgment as a matter of law on the failure to accommodate claim; why the ADA retaliation claim survives; why Wells Fargo is entitled to judgment as a matter of law on the ADA and the North Carolina disability discharge claims; Judge Berner’s concurrence and dissent; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

Plaintiff has a paralyzed bladder and colon. Everybody at Wells Fargo knew about it over the three decades he worked there. Nevertheless, he was extremely successful in his role. He was so successful that he rose from an intern to managing director and moved from the company’s headquarters in Charlotte, North Carolina, to start a new office in California and head West Coast sales. As his condition worsened, working in the office became problematic. Nevertheless, his supervisor was very flexible. When the pandemic hit, it greatly benefited the plaintiff as he could work right next to a restroom, never had to wait on an overloaded bathroom, or worry about having an accident at work. When the pandemic hit, plaintiff considered moving back to Charlotte where he could be closer to leadership and improve his promotion chances. However, the bathroom situation at Charlotte was not good. Nevertheless, his supervisor assured him that on days when he needed laxatives, he could work from home. Accordingly, he moved back to Charlotte and continued to excel. Unfortunately, the summer of 2021 saw weak financial markets, and Wells Fargo was asked to begin a reduction in force. Further, his longtime supervisor/manager left Wells Fargo and plaintiff began reporting to someone else, whom he did not have the same rapport with. During the pandemic the entire office was closed and everybody worked remotely. Plaintiff was concerned that when the pandemic subsided a bit and return to office mandate started appearing, that he would not be able to work from home. So, plaintiff put in a formal request for an accommodation. That request led to a series of actions on the part of Wells Fargo with the result plaintiff was terminated. He brought suit under both the ADA and the equivalent North Carolina state law and the matter went to trial. The jury awarded him $6 million in back pay, $14 million in front pay, $100,000 in emotional distress damages, 1 million in punitive damages under the ADA, and 1 million in punitive damages under North Carolina law. Plaintiff did accept the remittitur reducing the ADA punitive damages to $300,000 to comply with the statutory cap. Plaintiff’s ADA claims included both failure to accommodate and retaliation.

 

II

Why Wells Fargo Is Entitled to Judgment As a Matter of Law on the Failure to Accommodate Claims

1. 42 U.S.C. §§12112(b)(5)(A),(B), are two very different things. Subparagraph (A), makes it discrimination to not make reasonable accommodations to the known physical or mental limitations of a qualified employee. On the other hand, subparagraph (B), makes it discrimination to deny employment opportunities to a qualified employee if such denial is based on the need to take reasonable accommodations. Plaintiff pleaded and tried his claim as a refusal to make reasonable accommodations under subparagraph (A). He never pleaded subparagraph (B).
2. The court noted in a footnote, that the jury was never asked to find that Wells Fargo fired him to avoid accommodating him. For that matter, no jury instruction was sought on whether Wells Fargo decision to discharge the plaintiff was based upon the need to accommodate the plaintiff. In that same footnote, the court goes on to say that a judgment must rest on the theory jury was asked to find, and not on a theory reconstructed on appeal.
3. Whether the employer failed to provide an accommodation falls under subparagraph (A), while whether the employer took an adverse action, like termination, in order to avoid a combination falls under subparagraph (B). The two theories are not the same.
4. Since this is a subparagraph (A) case, the question is whether Wells Fargo withheld a reasonable accommodation while the plaintiff was employed.
5. The accommodation requests was closed by Wells Fargo because everyone was receiving the accommodation that plaintiff needed.
6. In another footnote, the court noted that an accommodation is not ineffective or not an accommodation at all just because it is available to other employees regardless of disability status. The fact that others receive the same accommodation has nothing to do with whether the accommodation works effectively for the individual in question.
7. An accommodation that does not work is no accommodation at all.
8. An accommodation that does work is an effective arrangement that modifies the work environment for the manner or circumstances under which the position is customarily performed in order to enable an employee to do a job.
9. In another footnote, the court noted that evidence existed that senior managers met his formal accommodation request with hostility, rejected recommended trial periods, and concluded that the accommodation would only delay the inevitable. That evidence supports the retaliation verdict, but concern about an accommodation is not the same as a denial of one.
10. The work from home accommodation that he had during the pandemic was effective in that he was able to perform his job from home. Plaintiff identified that arrangement, his position endorsed it, and plaintiff successfully carried out. While it is true, that there was no formal label that this was an accommodation and that he did not receive explicit approval for this request, the ADA focuses on the term “making,” and not on the term, “approving.” The label given to a situation does not change an effective workplace arrangement into an ineffective one or vice versa. By all accounts the accommodation he was given, even though everybody had the same accommodation, was effective.
11. In another footnote, the court said that under the ADA the only question is whether the employer’s chosen accommodation is effective because not even a well-intentioned court may substitute its own judgment for the employer’s choice.
12. In another footnote, the court notes that a disparate treatment or a retaliation claim requires an adverse action following from a protected status or a protected act. It does not require the plaintiff to show any accommodation was denied or even warranted. On the other hand, a failure to accommodate claim challenges the employer’s withholding of an accommodation and does not require an adverse action.

 

III

Why the ADA Retaliation Claim Survives

1. The record contains substantial circumstantial evidence of retaliatory motivation. The timeline alone supports finding causation.
2. The senior managers learned a plaintiff’s accommodation request in late October. By October-November, they decided to add the plaintiff to the plan reduction in force. By November 3, two of the senior managers had concluded that giving plaintiff an accommodation trial would only delay the inevitable. Preparation of formal discharge documentation followed in early December.
3. The whole termination process was accelerated so that it occurred in approximately two months v. a typical lead time of at least five months.
4. The senior managers actions and attitudes during the intervening period reinforced the causal connection of retaliation. In particular, plaintiff presented evidence that the managers treatment of plaintiff changed markedly after they learned about his request. For example, plaintiff was told that he would receive a stellar review for 2021 because of his fabulous sales numbers. Nevertheless, he received a downgrade in the evaluation and was largely iced out of conversations once he made his formal accommodation request.
5. Senior managers also reacted to his formal accommodation request with skepticism and dismissiveness. In particular, they questioned whether the accommodation management consulting team was new to the company, expressed shock that the plaintiff sought a formal accommodation after obtaining informal arrangements, and pushed back on granting a trial period.
6. Additional layoffs by Wells Fargo do not establish that plaintiff would have been discharged in the accelerated manner but for his formal request to work remotely as an accommodation.

IV

Why Wells Fargo Is Entitled to Judgment as a Matter of Law on the ADA and the North Carolina Disability-Discharge Claims

1. Plaintiff’s disability discrimination claim requires him to prove the disability and not his protected action was a but for cause of his discharge.
2. While an event can have multiple before causes per Bostock, discussed here, each must be independently supported.
3. An employer who retaliates against an employee for engaging in protected activity and is not necessarily motivated by discriminatory animus.
4. A discrimination claim demands evidence of motive based on the protected status, while retaliation claim demands evidence of motive based on the protected act.
5. Everything changed after his formal request for an accommodation. That timing indicates that the termination was downstream of the protected act of asking for reasonable accommodation, and not the protected status of being a person with a disability. Such an approach is the essence of a retaliation claim and not a failure to accommodate claim, which is precisely why the retaliation claim survives.
6. An employer can take adverse action against an employee who requests an accommodation solely based on the content of the request itself, without considering whether the employee is disabled. Such an action does not necessarily consider disability status, since any individual (even one who cannot ultimately prove that they satisfy the ADA’s definition of disability), can request an accommodation and be protected from retaliation.
7. In a footnote, the court noted that the act of requesting a reasonable accommodation is broadly protected under the ADA and does not require a plaintiff to establish a disability existed under the ADA or that the request was reasonable, so long as the plaintiff made the request in good faith.
8. After going through all this discussion, the court had to redo the remedies that plaintiff obtained. In particular: 1) the awards of punitive damages under North Carolina law and the ADA as well as the emotional distress damages were all vacated; 2) the backpay award was remitted to $4,225,558; 3) the front pay award of $14 million was affirmed; and 4) the interest award was vacated and remanded because the court did not apply the federal standard, which would have been the correct standard to apply.

 

V

Judge Berner’s Concurrence and Dissent

1. Wells Fargo did not meet the high bar for reversing a jury’s verdict on the plaintiff’s federal and state law disability discrimination claims and the jury’s calculation of the backpay award.
2. Judge Berner agrees that the failure to accommodate claim fails but not for the same reasons as the majority opinion.
3. Considering the highly deferential standard to juries, a reasonable jury could have ruled in favor of the plaintiff on his disability claims and calculated $6 million as the amount of back pay owed.
4. Plenty of evidence existed that plaintiff was terminated because of his disability. In particular, the jury heard evidence as to the following: 1) the reduction in force was highly irregular and the typical procedure was not followed; and 2) a mere two weeks elapsed from the initial decision to terminate the plaintiff to his termination. One Wells Fargo employee testified that they could not recall a single occasion with the decision to terminate an employee through a reduction in force was taken so quickly.
5. Judge Berner in essence says that separating out intentional action from retaliation can be a far from clear exercise.
6. The majority decision to use the figure it ultimately adopts as a remittitur doesn’t make a lot of sense. While counsel for the plaintiff referenced $4,225,558 as a backpay figure during closing argument was not evidence upon which a jury may rely.
7. Everybody receiving the accommodation of working from home does not make it an accommodation for purposes of the ADA. Instead, that was simply a temporary policy for all Wells Fargo employees in response to the Covid-19 crisis. Wells Fargo never intended that such an arrangement would be permanent. Indeed, two weeks before plaintiff was terminated, they notified employees that it with their intent for them to return to the office.
8. Plaintiff sought an accommodation to be permitted to work from home once all the other employees were inevitably ordered to return to the office. Wells Fargo never resolved that request, and did not make the requested accommodation. However, it did not deny the request either. Instead, it terminated the plaintiff before his request was resolved. Since plaintiff’s request for accommodation with neither actually nor constructively denied before he was terminated, the failure to accommodate claim cannot survive.
9. The ADA prohibits an employer from terminating an employee to avoid making a reasonable accommodation. While the facts of the case certainly support such a finding, plaintiff did not plead subparagraph (B).

 

V

Thoughts/Takeaways

1. In law school, they told us when we were briefing cases, that we had to read the footnotes. Lawyers are notorious for what are called speaking footnotes. Interestingly enough, other disciplines, such as medicine, flatly prohibit such speaking footnotes. In this particular case, I counted approximately half a dozen significant points made in the decision that all appeared in footnotes and not in the body of the case. Significant points made in the footnotes include: 1) for an accommodation to be reasonable, it must be an effective one; 2) a concern about an accommodation is not the same as the denial of an accommodation; 3) the only question is whether an employer’s chosen accommodation is effective; 4) the requesting of a reasonable accommodation is broadly protected under the ADA and does not require plaintiff to establish the disability existed under the ADA or that the request was even reasonable so long at the plaintiff made the request in good faith (of course, whether an actual accommodation has to be given depends upon whether a disability actually exists. Also, good faith is a bit complicated, as I have seen cases holding that an accommodation request is not in good faith if it is something that simply would never be granted under the ADA); 5) a failure to accommodate claim does not require an adverse action (courts are all over the place on this question, which is why I was surprised to see it stated like this and in a footnote no less); and 6) a jury has to decide the case based on what is pleaded in the complaint.
2. An accommodation can be something that all employees can use.
3. There is a difference in kind between a failure to accommodate cause of action (status) v. a retaliation cause of action (protected act).
4. Causation is governed by Bostock, which we discussed here.
5. This case is an excellent illustration of how persons with disability benefit from working from home.
6. I can’t tell you how many times new supervisors get in the way of already working accommodations and that lead to litigation. Make sure supervisors get trained regularly on their ADA obligations by a person knowledgeable about the ADA.
7. This case could have gone differently if the focus has been on a failure to engage in the interactive process. It certainly seems like the employer did not do that.
8. I haven’t seen a case before that made a big deal between the distinction between subparagraphs (A) & (B) the way this case does. This line of thought bears watching going forward, especially since this decision is published. For cases following this line of thinking, be sure to be intentional in which subparagraph is pled.
9. If you are not going to thoroughly read footnotes in a case that you are looking at, at the very least make sure you peruse them.