Long-time hotel concierge claims insufficient accommodation for his physical limitations. $20M. San Francisco County.

Facts and Background

• Facts and Background:

  Plaintiff worked for Marriott as a concierge at its San Francisco Marquis Marriott for approximately 30 years. Plaintiff had a longstanding history of low-back problems for which he was under medical care. Eventually, he had a series of epidural injections, one of which resulted in him becoming an incomplete paraplegic (walking paraplegic). He took a year-long leave of absence from Marriott as a result.

  Eventually, in January 2015 he returned back to work with restrictions and accommodation requests. Among other things, he required the ability to alternate sitting and standing while doing the job and he required a close, accessible break room. Marriott provided many reasonable accommodations to plaintiff on his return including things like allowing him to wear comfortable shoes and clothing, allowing him to enter the hotel through the valet parking rather than the farther away employee entrance, a closer break room, use of the closer public restrooms, and modifications to the workstation as needed. Generally, from January 2015 into either late 2016 or early 2017, Marriott accommodated plaintiff's restrictions other than some challenges with his break room.

  In late October 2016 or early 2017, the anti-fatigue floor mat that had been used behind the concierge workstations was removed. This began a multi-year process of plaintiff alleging that the replacement anti-fatigue mats did not properly allow him to work while using a rolling chair.  The chair wheels would sink into the mat, not move on the mat safely, etc. Marriott purchased multiple different mat alternatives for plaintiff over the next few years, but plaintiff contended the ones supplied did not work well. Then, in 2017, management and HR held a series of meetings during which, according to plaintiff, management pressured him to move to a farther away break location, which stressed plaintiff out because he contended the existing break location was already too far away for him to walk to. These issues came to head in November 2017, but never resolved because plaintiff was admitted to the hospital that month with the onset of congestive heart failure resulting in a many months-long leave of absence.

  Plaintiff returned back to work from this cardiac-related leave in 2018. At this time, the Marquis Marriott was undergoing a $150 million renovation. In September 2018, as part of the renovation, the front desk and concierge workers were temporarily relocated to the second floor. At the temporary second-floor work location, plaintiff encountered problems with both the break area and the workstation itself. Marriott addressed many of his concerns about the workstation including the building of custom risers and extensions for the workstation. In later September 2018, plaintiff went on another leave of absence for cardiac issues; this time for placement of an IACD device because he continued to suffer from concerning arrhythmias. He returned in November 2018. In December 2018, plaintiff saw the new renovated workstation that he would have to start working at in January 2019. That workstation, unlike the original lobby workstation or the temporary second-floor work station, did not have leg space underneath the counter top allowing one to comfortably sit. It also had an excessive reach from the concierge's location to the location where the guests would stand. Plaintiff proactively reached out to HR asking what accommodations would be made for him at the new workstation.  He was told none would be made at first but that the company would adjust things as needed. Plaintiff began at the new workstation in January 2019 and quickly reported a number of concerns about the workstation. Over the next eight months, Marriott did many things to address the workstation including new mats, building new customer risers and extenders, etc. However, it did not create actual leg space in the new workstation, which resulted in plaintiff having to stand excessively causing more pain and fatigue on his body.

  In July 2019, Marriott's HR department met with plaintiff and asked that he provide updated medical information specifically identifying his limitations, the frequency of his ability to do or not do things and to list all items that he still required assistance with. Plaintiff did not do so. Instead,  in late July 2019, plaintiff retained counsel (Susan Rubenstein), who wrote a letter to Marriott seeking certain accommodations for plaintiff. After Marriott received this letter; it addressed some of the concerns including drawer handles on the desk drawers that plaintiff alleged his knees kept hitting when he tried to sit. But Marriott did not create actual leg space to allow sitting. In August 2019, Marriott's HR department repeatedly reached out to plaintiff to try to engage in further discussions with him and to get his updated medical information. Plaintiff did not respond and stopped reporting to work.

  In September 2019, attorney Rubenstein wrote to Marriott explaining that plaintiff's doctors had recommended that he no longer work, given the non-accommodation. In March 2020, when COVID-19 struck, Marriott laid off all concierges and never rehired any of them. At time of trial, the Marquis Marriott no longer employed concierges. Also, from early March 2020 forward, plaintiff's cardiac health declined rapidly and he became unable to work because of his heart condition. He is currently awaiting a heart transplant.

• Plaintiff's Contentions:

  Plaintiff contended that Marriott failed to accommodate him by designing the renovated workstation for standing work when the concierges had always been allowed to alternate sitting and standing when doing the job. Plaintiff also contended that Marriott failed to accommodate by failing to create leg space after plaintiff reported his concerns about working at this new workstation.

  Plaintiff also contended that while Marriott engaged in plenty of interactive process with him, none of it was in good faith because ultimately upper management refused to address the primary issue: the lack of leg space. Instead, he was strung along for eight months with false hope that Marriott would create leg space when, indeed, they never intended to do so. Plaintiff contended that the eight-month ordeal of working at the new renovated workstation aggravated his underlying chronic pain condition, aggravated his underlying congestive heart failure and the entire ordeal re-triggered his post-traumatic stress disorder that he developed after the epidural injection rendered him paraplegic, but which had been in remission for years.

• Defendant's Contentions:

  Marriott contended that it provided many, many accommodations to plaintiff over five years, that it repeatedly engaged in the interactive process with plaintiff but that he refused to engage in good faith with it including because he refused to supply updated medical information when sought in July 2019.

  Marriott also claimed that plaintiff was setting up this lawsuit, pointing out that that he was cc'ing lawyers on emails back in 2017 and 2018, took pictures of the workplace for years to document issues, and sought counsel in July 2019 rather than simply complying with Marriott's request for updated medical information.

  Marriott also alleged that plaintiff did not really request that Marriott create leg space at the new workstation, but merely that it remove the drawer handles that his knees struck when he was seated. Marriott pointed to the fact that his lawyer's letter in July 2019 did not say that Marriott needed to create leg space, but rather that it needed to remove the drawer handles.

  Marriott also alleged that plaintiff suffered no real damages. Marriott pointed out the undisputed fact that all concierges were laid off in March 2020, noting that plaintiff would have been laid off in March 2020 had he not quit in September 2019. Marriott disputed that its conduct aggravated his chronic-pain condition, relying on the testimony of plaintiff's treating neurologist, who said the spinal cord injury was the same before and after the non-accommodation. Marriott also disputed that its conduct impacted plaintiff's heart condition; Marriott alleged that the heart condition was the result of plaintiff's years of alcohol abuse, his cocaine use, his use of excessive testosterone injections, his paraplegia, etc.