EEOC: ADA Case Law Update
Joyce Walker-Jones
Senior Attorney Advisor
Office of Legal Counsel
September 2014
A summary of Title I cases decided in 2013-2014 under the Americans with Disabilities Act
Amendments Act (ADAAA).
A.
Definition of “Disability”
1.
Actual Disability
a.
Anxiety
Huiner v. Arlington Sch. Dist., 2013 WL 5424962 (D.S.D. Sept. 23, 2013). The plaintiff, an art
teacher, alleged that she was discriminated against based on her anxiety and panic attacks when
the school district failed to accommodate her. According to the plaintiff’s testimony and medical
records, her anxiety limited her ability to “maintain her nutritional needs” (which had resulted in
a 30-pound weight loss in eight months), care for her children, and sleep. Based on this
evidence, the court concluded that the plaintiff had presented sufficient facts to make a prima
facie showing that her anxiety constituted a disability under the ADA.
b.
Asthma/Respiratory Conditions
Lopez-Cruz v. Instituto de Gastroenterologia, 960 F. Supp. 2d 367 (D.P.R. 2013). The plaintiff,
a nurse, alleged that she was terminated because of her respiratory problems, a condition for
which she took medication and needed regular checkups, when she asked to be excused from
having to clean medical equipment using Cidex, a disinfectant. The court held that the plaintiff
plausibly pled that her breathing was substantially limited by stating that the disinfectant affected
her respiratory tract and caused “extreme coughing and difficulty breathing,” which was so bad
on one occasion that she went to the emergency room.
c.
Autism
Glaser v. Gap Inc., 2014 WL 349718 (S.D.N.Y. Jan. 31, 2014). The plaintiff, who had worked as
a merchandise handler at a distribution center for more than seven years, alleged that the
defendant violated the ADA when it subjected him to a hostile work environment, failed to
accommodate him, and terminated him for alleged misconduct. Although the defendant
contended that the plaintiff’s autism did not substantially limit his ability to “interact with
others,” the court held that, under the ADAAA, the term “substantially limits” is not meant to be
a demanding standard. EEOC regulations enumerate impairments, including autism, that “will,
at a minimum, substantially limit the major life activities indicated.” The regulations state that
autism “substantially limits brain functions” and also might limit other major life activities not
explicitly identified. Relying on evidence that the plaintiff frequently had been advised not to
distract his coworkers, not to put his arm around his supervisor or touch her when speaking to
her, and to stand further apart from others when talking, the court held that the defendant could
not “seriously argue” that the plaintiff’s ability to interact with others was not impaired.
d.
Back/Leg/Knee Impairments
Summers v. Altarum Inst. Corp., 740 F.3d 325 (4th Cir. 2014). The plaintiff, a senior analyst for
a government contractor, fell and fractured his left leg, tore a tendon in his left knee, fractured
his right ankle, and ruptured a tendon in his right leg. Following two surgeries, the plaintiff’s
doctors restricted him from putting any weight on his left leg for six weeks and estimated that he
2
would not be able to walk normally for at least seven months. After a period of short-term
disability, the plaintiff asked to work from home but, instead, was terminated. The district court
granted the employer’s motion to dismiss the plaintiff’s ADA discriminatory discharge claim,
concluding that the impairment was too temporary to be a disability. Reversing, the Fourth
Circuit gave Chevron deference to EEOC’s amended ADA regulations, which state that “effects
of an impairment lasting or expected to last fewer than six months can be substantially limiting,”
29 C.F.R. §1630.2(j)(1)(ix). The court also noted that, according to the accompanying appendix,
“the duration of an impairment is one factor that is relevant” and “[i]mpairments that last only
for a short period of time are typically not covered, [but] may be covered ‘if sufficiently
severe.’” Citing an appendix example (“[I]f an individual has a back impairment that results in a
20-pound lifting restriction that lasts for several months, he is substantially limited in
lifting….”), the court reasoned: “If, as the EEOC has concluded, a person who cannot lift more
than twenty pounds for ‘several months’ is sufficiently impaired to be disabled within the
meaning of the amended Act, then surely a person whose broken legs and injured tendons render
him completely immobile for more than seven months is also disabled.” The appeals court also
noted that the district court’s holding that a “temporary injury” cannot be a disability erroneously
relied on pre-ADAAA case law.
Mazzeo v. Color Resolutions Int’l, L.L.C., 746 F.3d 1264 (11th Cir. 2014). The plaintiff, who
provided technical and sales services to customers, was diagnosed with a herniated disc and torn
ligaments in his back that caused pain in his lower back and down his leg and that intermittently
affected his ability to walk, sit, stand, bend, run, or lift objects weighing more than ten pounds.
Shortly after informing his employer that he was scheduled to have back surgery, he was
terminated. The district court granted the employer’s motion to dismiss the plaintiff’s ADA
discriminatory discharge claim, reasoning that his doctor’s affidavit was insufficient and
conclusory. Reversing, the Eleventh Circuit found that because the plaintiff’s doctor explained
that the plaintiff’s back problems stemmed from “nerve root involvement caus[ing] radicular
symptoms” and indicated that his limitations were “substantial . . . and permanent,” the affidavit
presented sufficient evidence, in light of the new standards under the ADAAA, to show that the
plaintiff’s herniated disc substantially limited a major life activity.
McFadden v. Biomedical Sys. Corp., 29 A.D. Cas. (BNA) 737, 2014 WL 80717 (E.D. Pa. Jan. 9,
2014). The plaintiff, a director of business development, alleged that his former employer
refused his request for sick leave to have back surgery for his herniated discs and retaliated by
terminating him. In its motion for summary judgment, the defendant argued that the plaintiff’s
allegation that his back condition sometimes caused him pain and limited his ability to walk,
stand, or sit for long periods of time was insufficient to establish a significant restriction on a
major life activity. Disagreeing, the court held that, given the “ADAAA’s liberalized standards,”
the plaintiff’s allegation that he had an impairment that was disabling was sufficient to overcome
a motion to dismiss.
Rocco v. Gordon Food Serv., 29 A.D. Cas. (BNA) 888, 2014 WL 546726 (W.D. Pa. Feb. 10,
2014). The plaintiff, a delivery driver, alleged that he was denied a reasonable accommodation
and terminated based on his knee injury, which initially caused pain requiring prescription
medication and limited his ability to walk or lift. The court held that because the plaintiff’s
alleged limitations, including his inability to concentrate or sleep (caused by the pain
3
medication), had resolved by the time of the alleged adverse employment decision, he failed to
establish that he had a disability.
e.
Blood Disorders
Johnson v. City of Chicago Health Dep’t, 549 F. App’x 579 (7th Cir. 2014). A former health
aide alleged that she was denied a reasonable accommodation and terminated because of her
sickle cell anemia, which, at times, substantially limited her ability to walk or bend. Reversing
dismissal of the plaintiff’s complaint, the Seventh Circuit held that the district court erred in
finding that the plaintiff failed to show that her walking (or any other major life activity) was
substantially impaired. Noting that the plaintiff submitted a form from her treating physician to
support her request for reasonable accommodation, indicating that she “needed a walker and
would have ‘gait instability’ for six to nine months,” the court held that a reasonable jury could
conclude that the plaintiff was substantially limited in walking.
f.
Breast Infection
McKenzie-Nevolas v. Deaconess Holdings L.L.C., 29 A.D. Cas. (BNA) 366, 2014 WL 518086
(W.D. Okla. Feb. 7, 2014). The plaintiff, a former medical assistant, alleged that she was
terminated based on recurrent cellulitis/infectious mastitis of her left breast (inflammation of the
soft tissue), which caused redness, pain, and sometimes fever. Noting that no abscess was found
in the plaintiff’s breast, that she never required drainage of her breast or a breast biopsy, that the
limited infection of her breast was temporary and of short duration and did not spread to other
parts of her body, and that her doctors never placed her on any restrictions or limitations,
including lifting, the court concluded that she failed to establish that she had an impairment that
substantially limited one or more of her major life activities.
g.
Cancer/Abnormal Cell Growth
h.
Carpal Tunnel
i.
Depression
No new cases added.
No new cases added.
Palacios v. Continental Airlines, Inc., 27 A.D. Cas. (BNA) 860, 2013 WL 499866 (S.D. Tex.
Feb. 11, 2013). The plaintiff, who received medical treatment and medication for depression
over a period of years, testified that his condition affected his ability to sleep or eat, that
sometimes he slept too much (one time for almost two days) and other times he could not sleep,
that sometimes he did not eat, and that sometimes he just sat in his living room and did nothing.
He also testified that prior to taking FMLA leave, he chose to allow others to work many of his
hours, which company policy allowed, and that due to his depression he did not really care about
potentially losing his house or making car payments or paying other accounts. The court held
that the self-described severity of the plaintiff’s depression and its adverse effects on his desire to
4
work and on his sleeping, eating, and attention to ordinary care of himself, which was supported
by medical evidence, was sufficient under the more lenient standard of the ADAAA to raise a
factual issue that he had a disability under the ADA.
j.
Diabetes
Willoughby v. Connecticut Container Corp., 29 A.D. Cas. (BNA) 94, 2013 WL 6198210 (D.
Conn. Nov. 27, 2013). After experiencing symptoms of “loss of vision, sweating, vertigo, loss of
focus[,] and inability to stand,” the plaintiff was diagnosed with Type II diabetes and high blood
pressure. Five months after his diagnosis, the plaintiff experienced an episode of low blood
sugar and dehydration at work, which caused him to pass out. Despite evidence that the incident
likely was diabetes-related, he was terminated allegedly for sleeping on the job. Applying the
ADAAA’s broadened definitions of disability and major life activity, the court held that because
the plaintiff experienced “symptoms due to diabetes [e.g., fluctuating blood sugar, dehydration,
difficulty standing, dizziness, and faintness], which is by definition a disease which impacts the
functioning of the endocrine system,” a jury easily could find that he had an impairment that
substantially limited one or more of his major life activities. The court also pointed out that
EEOC regulations, 29 C.F.R. § 1630.2(j)(3)(iii), note that “diabetes substantially limits
endocrine function” and, therefore, it “should easily be concluded that [diabetes] will, at a
minimum, substantially limit” a major life activity.
Kinchion v. Cessna Aircraft Co., 2013 WL 66077 (D. Kan. Jan. 4, 2013). The plaintiff, a smallparts finish painter, had a number of health problems during the 15 years he worked for the
defendant. In his complaint alleging that he was terminated in violation of the ADA, he
mentioned only that he had been diagnosed with diabetes and other conditions. Granting the
employer’s motion to dismiss the complaint, with leave for the plaintiff to amend, the court held
that the mere mention of diabetes with nothing more was insufficient to plead disability and that
the defendant should not have to guess at the basis for the claim of disability discrimination.
Although the EEOC’s regulations state that certain impairments such as diabetes will in virtually
all cases result in coverage under the ADAAA, merely parroting the regulation without any
supporting facts was insufficient.
Szarawara v. County of Montgomery. 2013 WL 3230691 (E.D. Pa. June 27, 2013). A
telecommunicator with Type II diabetes who worked nights for an emergency dispatch services
center resigned after the defendant refused to change his hours or move him to part-time status or
a dayshift position. The court held that because the EEOC has advised that diabetes “will, as a
factual matter, virtually always be found to impose a substantial limitation” on the endocrine
function, the defendant’s reliance on pre-ADAAA cases and EEOC’s prior regulations was
inapplicable.
k.
Flu
No new cases added.
5
l.
Hypertension
Gogos v. AMS Mech. Sys., Inc., 737 F.3d 1170 (7th Cir. 2013). The plaintiff, a welder and
pipefitter, alleged that he was terminated in violation of the ADA when he sought leave for
medical treatment of his high blood pressure which “spiked to ‘very high’” and caused
intermittent vision loss, sometimes for a few minutes at a time. Reversing dismissal of the
plaintiff’s complaint, the court held that the plaintiff’s alleged episode of blood-pressure spike
and vision loss was sufficient to plead disability under the ADAAA, citing 42 U.S.C. §
12102(4)(D) (“impairment that is episodic or in remission is a disability if it would substantially
limit a major life activity when active”) and noted that the amended EEOC regulations list
hypertension as an example of an impairment that may be episodic. The court concluded that
“the relevant issue is whether, despite their short duration in this case, Gogos’s higher-than-usual
blood pressure and vision loss substantially [limited] a major life activity when they occurred.”
The court also held that the plaintiff’s chronic high blood pressure, for which he took
medication, could be a disability that substantially limited his cardiovascular and circulatory
functions on an ongoing basis. In this regard, the court referred to the rule of construction in the
ADAAA that the determination of whether an impairment substantially limits a major life
activity is to be made without reference to mitigating measures, such as medications. Thus, even
if the plaintiff had not experienced the episode of elevated blood pressure and vision loss, his
chronic hypertension could constitute a disability.
m.
HIV Infection
Lundy v. Phillips Staffing, 29 A.D. Cas. (BNA) 685, 2014 WL 811544 (D.S.C. Mar. 3, 2014).
The plaintiff alleged that the defendant fired him after learning that he had HIV. The court noted
that although the Fourth Circuit had not definitively held that asymptomatic HIV is a per se
disability, the plaintiff showed that he had HIV, “which is a physical impairment that has a
‘constant and detrimental effect on the infected person’s hemic and lymphatic systems.’”
Further noting that the “[t]he lymph nodes, where the virus is most prevalent during the
asymptomatic phase, play a key role in the body’s immune response system, a major life activity
under the ADAAA,” the court concluded that the plaintiff had a physical impairment that
substantially limited one or more major life activities.
n.
Intellectual Disabilities
o.
Kidney Disease
p.
Migraine Headaches
No new cases added.
No new cases added.
Freelain v. Village of Oak Park, 29 A.D. Cas. (BNA) 927, 2014 WL 148739 (N.D. Ill. Jan. 15,
2014). The plaintiff, a police detective, alleged that he was denied leave under the FMLA,
sexually harassed, discriminated against on the basis of disability (anxiety that resulted in
6
headaches, fatigue, and migraines), and retaliated against in violation of the ADA. The court
held that, even if the plaintiff had the impairments he alleged, merely having a “medically
identifiable impairment” is not enough to establish a disability under the ADA. “[T]he focus is
on whether the impairments substantially limit a major life activity, not whether an impairment
has a name.” Referring to a decision that relied on pre-ADAAA case law, even though the
alleged discrimination in this case occurred after the effective date of the ADAAA, the court also
stated that short-term, temporary restrictions, with little or no long-term impact, generally are not
substantially limiting and do not render a person disabled for purposes of the ADA.
q.
Multiple Sclerosis
Feldman v. Law Enforcement Assocs. Corp., 955 F. Supp. 2d 528 (E.D.N.C. 2013), aff’d on
other grounds, 2014 WL 1876546 (4th Cir. May 12, 2014). The plaintiffs, one with a history of
multiple sclerosis (MS) and another who had been hospitalized overnight and off work for
several weeks because of a transient ischemic attack (TIA or “mini stroke”), alleged that they
were fired because of their disabilities. Because the defendant conceded that MS is a disability
even when in remission and the plaintiff explained that he experienced significant fatigue and
weakness, had trouble walking, and could not drive a car when his MS flared up, the court found
that the plaintiff established that he had a disability. With respect to whether TIA is a disability,
the court held that, even if it is an impairment that is episodic or in remission, the plaintiff
offered no evidence beyond his overnight visit to the hospital to show that it substantially
impaired the major life activity of working or any other major life activity. In particular, the
court noted that the evidence showed that all of the plaintiff’s diagnostic testing at the hospital
was normal and that he was discharged the next day with no restrictions.
r.
Post Traumatic Stress Disorder (PTSD)
Beair v. Summit Polymers, 28 A.D. Cas. (BNA) 640, 2013 WL 4099196 (E.D. Ky. Aug. 13,
2013). A former production operator who had assembled automobile parts alleged that her
employer failed to accommodate her disability, retaliated against her, and terminated her based
on her major depressive disorder and post traumatic stress disorder. The court noted that EEOC
“regulations provide that the ‘individualized assessment of some types of impairments will, in
virtually all cases, result in a determination of coverage’” and “that, with certain specified
impairments, ‘it should be easily concluded that [the impairments] . . . substantially limit the
major life activities indicated.’” In particular, the regulations state that it should be easy to
conclude that “major depressive disorder . . . [and] post-traumatic stress disorder . . .
substantially limit brain function.” Because the plaintiff submitted evidence that she was
diagnosed with major depressive disorder and PTSD and the defendant presented no reason why,
in this case, those conditions did not actually limit her brain function, she presented sufficient
evidence that she had a disability.
s.
Obesity
Powell v. Gentiva Health Servs., Inc., 2014 WL 554155 (S.D. Ala. Feb. 12, 2014). A former
account executive, whose job duties were to make 10 to 12 sales calls per day to market the
defendant’s hospice services, alleged that she was terminated based on her morbid obesity.
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Citing to pre-ADAAA cases (but acknowledging that the ADAAA governs), the court noted that
a plaintiff’s status as being overweight, without more, had been held not to constitute a
disability; rather, the question turns on an individualized inquiry about the specific condition
and its limitations. Relying on the plaintiff’s testimony that (despite being 5’3” and weighing
230 pounds) her weight did not interfere with her ability to do her job; impair her ability to care
for herself, engage in day-to-day activities, or walk; or cause any health conditions, the court
held that no reasonable factfinder could conclude that her obesity substantially limited one or
more of her major life activities so as to render her disabled.
Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531 (W.D. Pa. 2013). In a suit brought under Title III
of the ADA, the plaintiff alleged that the defendant retail store discriminated against her based
on her obesity by selling plus-size clothing at higher prices and “segregating” such clothing from
smaller sizes. The court noted that although the Third Circuit had yet to decide if obesity is a
disability under the ADA, other courts had held that it may be a disability under the ADAAA.
Considering decisions both before and after the ADAAA, in conjunction with Congress’s intent
to broaden the scope of the definition of disability, the court concluded that it could not
“definitionally exclude obesity when caused by an underlying physiological condition as a
disability under the ADA,” especially since the plaintiff specifically alleged that her obesity was
caused by a thyroid disorder and other medical conditions. In reaching this conclusion, the court
stated that it was unnecessary to decide if obesity or morbid obesity, without an underlying
physiological disorder, is also a disability under the ADAAA.
t.
Pregnancy-Related Complications
Wonasue v. University of Maryland Alumini Assn., 2013 WL 6158375 (D. Md. Nov. 22, 2013).
While pregnancy-related complications may rise to the level of an ADA disability, plaintiff's
single instance of more severe than typical morning sickness did not because there were no
subsequent medical restrictions. Thus, the employer was not required to provide leave or
schedule changes as reasonable accommodations. Other complications that arose after she
resigned were irrelevant to the question of whether there was disability discrimination at time she
sought accommodations.
Heatherly v. Portillo’s Hot Dogs, Inc., 958 F. Supp. 2d 913 (N.D. Ill. 2013). The plaintiff, a
restaurant server, filed suit against her former employer alleging discrimination under the
ADAAA for failure to provide reasonable accommodation for her pregnancy-related disability
when it required her to deliver food to outdoor customers. The plaintiff informed the employer
that she was pregnant and presented a doctor’s note, which stated that she was only to perform
light duties and was “not to work more than 8 hour shifts.” The employer complied with the
plaintiff’s doctor’s requests but denied her request to work only indoors; the plaintiff based that
request on her own interpretation of the doctor’s “light duty” restriction. The court granted
summary judgment to the employer with respect to the plaintiff’s claim. While it found
sufficient evidence to create a triable issue as to whether the plaintiff’s high-risk pregnancy
rendered her disabled under the ADAAA, it could not conclude that the employer had failed to
accommodate her, because nothing in the record – including testimony from her doctor and nurse
– suggested that she was unable to work outside.
8
Price v. UTI, United States, Inc., 117 Fair Empl. Prac. Cas. (BNA) 1876, 2013 WL 798014 (E.D.
Mo. Mar. 5, 2013). The plaintiff alleged that the defendant violated Title VII and the ADA when
it terminated her three weeks after she gave birth and was recovering from a cesarean section.
Denying the defendant’s motion to dismiss the plaintiff’s failure to accommodate claim, the
court noted that an impairment need not be permanent or long term to meet the definition of a
disability. Although EEOC’s interpretive guidance excludes pregnancy itself as a physical
impairment, a physical impairment includes any physiological disorder or condition that affects
the reproductive systems, which can be an impairment or complication related to pregnancy.
Taking the evidence in the light most favorable to the plaintiff, the court concluded that she was
disabled within the meaning of the ADA, because there was evidence that she had multiple
physiological disorders and conditions that affected her reproductive system.
Nayak v. St. Vincent Hosp. & Health Care Ctr., Inc., 2013 WL 121838 (S.D. Ind. Jan. 9, 2013).
The plaintiff, a medical student in an OB/GYN residency program, was not renewed in her third
year, following a seven-month absence for pregnancy-related and post-partum complications that
included being ordered to remain on complete bed rest for six months, miscarriage of one of the
twins she was carrying, and post-partum difficulties that lasted two months and required physical
therapy before returning to work. Denying in part the employer’s motion to dismiss the
plaintiff’s ADA challenge to her termination, the court rejected the employer’s reliance on preADAAA cases involving pregnancy-related complications. Given the lenient standard on a
motion to dismiss and the current change in the law stating that an impairment lasting less than
six months can be substantially limiting, the court, “in an abundance of caution,” found that the
plaintiff sufficiently pled a plausible claim for disability discrimination.
u.
Stroke
Feldman v. Law Enforcement Assocs. Corp., 955 F. Supp. 2d 528 (E.D.N.C. 2013), aff’d on
other grounds, 2014 WL 1876546 (4th Cir. May 12, 2014).
v.
Stuttering
w.
Vision Impairments
x.
Other impairments
No new cases added.
No new cases added.
Bob-Maunuel v. Chipotle Mexican Grill, Inc., 29 A.D. Cas. (BNA) 936, 2014 WL 185978 (N.D.
Ill. Jan. 15, 2014). The plaintiff, a general manager trainee, alleged that he was discriminated
against based on his hernia, hypertension, eye disease, and kidney disease when his management
training ceased and he was terminated. In response to the complaint, the defendant argued that
the plaintiff’s alleged medical conditions were not disabilities as defined by the ADA because
they were “either fictitious, temporary, or [did] not limit any major life activity.” The court held
9
that although the plaintiff’s hypertension and kidney disease were not disabilities, his hernia and
eye disease were, in that they substantially limited major life activities. Specifically, the court
found that because the plaintiff’s doctor restricted him from lifting more than ten pounds because
of his hernia, the plaintiff was substantially limited in lifting. Additionally, because the plaintiff
contended that his eye disease interfered with his vision, prevented him from driving, gave him
headaches, made it difficult for him to read voluminous documents, and caused his eye to leak
fluid, he showed that he was substantially limited in seeing.
Howard v. Steris Corp., 886 F. Supp. 2d 1279 (M.D. Ala. 2012), aff’d, 550 F. App’x 748 (11th
Cir. 2013). An assembly line worker alleged that he was discriminated against based on his
disability (obstructive sleep apnea and Graves’ disease) when he was denied an accommodation
and terminated for sleeping on the job. Prior to ruling on the merits in the employer’s favor
because it had no knowledge of the plaintiff’s disability, the court noted that, “for better or
worse,” the expanded list of major life activities “makes a person afflicted with a common,
minor condition ‘just as disabled as a wheelchair-bound paraplegic – if only for the purposes of
disability law.’” Thus, based on the plaintiff’s doctors’ testimony that the plaintiff’s sleep apnea
interfered with his ability to sleep and that Graves’ disease also can cause difficulty sleeping, the
court held that a reasonable jury could conclude that the plaintiff’s impairments substantially
limited his ability to sleep.
2.
Record of Disability
No new cases added.
3.
“Regarded as” Coverage
a.
“Regarded as” Coverage Not Satisfied
(1)
Action Not Taken “Because of” Impairment
McNally v. Aztar Indiana Gaming Co., L.L.C., 2014 WL 300433 (S.D. Ind. Jan. 28, 2014). The
employer did not “regard” the plaintiff as an individual with a disability, because there was
insufficient evidence that the employer knew or thought the employee had depression or any
other medical condition. The employer’s statements to the effect that the employee should seek
professional counseling to deal with his personal issues was a reference to the employee’s having
shared that he had experienced a house fire and was going through a child custody dispute.
Cobb v. Florence City Bd. of Educ., 2013 WL 5295777 (N.D. Ala. Sept. 18, 2013). The
plaintiff, who was not selected for five positions for which he had applied, could not demonstrate
that he was “regarded as” an individual with a disability, where the non-selections occurred more
than a year after he had returned to work without any limitations following orthoscopic knee
surgery.
Nayak v. St. Vincent Hosp. & Health Care Ctr., Inc., 2013 WL 121838 (S.D. Ind. Jan. 9, 2013).
The plaintiff, a third-year medical resident, was not renewed, following a seven-month absence
for pregnancy-related and post-partum complications. A letter sent by the Residency Program
10
Director indicated that the plaintiff’s medical residency contract was not renewed “[d]ue to
medically complicated pregnancy and significant concerns regarding her academic progress.”
While concluding that the plaintiff’s impairments could plausibly be found to substantially limit
a major life activity and thus allowing her to proceed with a disability discrimination claim under
prong 1, the court granted the employer’s motion to dismiss any claim based on “regarded as”
coverage, concluding that the ADA does not permit “mixed motive” claims, and therefore a
termination because of both an impairment and problems with academic progress could not meet
the “but-for” causation standard required to find that the termination was “because of” disability.
Rocha v. Coastal Carolina Neuropsychiatric Crisis Servs., P.A., 979 F. Supp. 2d 670 (E.D.N.C.
2013). The plaintiff, an employee of an outpatient mental health treatment facility, was
terminated for failure to reveal his three prior felony drug convictions. Termination for this
reason did not demonstrate that the employer “regarded” him as an individual with a disability,
i.e., terminated him because of an actual or perceived impairment of drug addiction.
(2)
Impairment Was “Transitory and Minor”
Reynolds v. Ocean Bio Chem/Kinpak, Inc., 2014 WL 495354 (M.D. Ala. Feb. 5, 2014). The
plaintiff was unable to demonstrate that her supervisor regarded her as having a disability,
notwithstanding his remark that she should “go home and get her foot better” and that she should
return “in a couple of years if we have a position.” The court concluded that the plaintiff’s
fractured ankle, which occurred in February and was expected to limit her ability to stand or
walk until early June, was “transitory and minor.”
Kruger v. Hamilton Manor Nursing Home, 2014 WL 1345333 (W.D.N.Y. Mar. 26, 2014). Even
if the plaintiff’s allegations were more detailed, as required to state a claim, the defendant’s
motion to dismiss would be granted because the plaintiff’s broken arm was “transitory and
minor.” In so concluding, the court noted that the plaintiff, a licensed practical nurse who
claimed that a shift transfer constituted a demotion, admitted that her activities had been only
“temporarily impacted.”
Cobb v. Florence City Bd. of Educ., 2013 WL 5295777 (N.D. Ala. Sept. 18, 2013). Orthoscopic
knee surgery causing a three-month absence from work for recovery was “transitory and minor.”
The court noted that the plaintiff was thereafter able to return to work without restrictions,
resume his lawn care business, and walk approximately four miles twice per week.
Hutcheson v. General Motors Corp., L.L.C., 2013 WL 6799954 (W.D. Mich. Dec. 20, 2013). A
back injury lasting one month was held to be “transitory and minor.”
Bush v. Donahoe, 964 F. Supp. 2d 401 (W.D. Pa. 2013). An ankle/foot sprain requiring a
walking cast/boot for five months, but no other treatment, was held to be “transitory and minor.”
b.
“Regarded as” Coverage Satisfied
Stahly v. South Bend Transp. Corp., 2013 WL 55830 (N.D. Ind. Jan. 3, 2013). The plaintiff, a
bus driver, challenged her termination on various grounds, including perceived disability.
11
Denying the employer’s motion for summary judgment on coverage, the court rejected the
employer’s reliance on pre-ADAAA case law, ruling that it could be concluded that the
termination was “because of” a perceived impairment, given that management knew that the
plaintiff was taking medication and suffered an anxiety attack for which she was admitted to an
emergency room, that she took FMLA leave, and that she was referred by the employee
assistance program to a stress recovery center.
LaPier v. Prince George’s Cnty., Md., 2013 WL 497971 (D. Md. Feb. 7, 2013). The plaintiff, a
student police officer, alleged that the county discriminated against him when it deemed him
physically unfit for duty because of his blood disorder. Although granting the employer’s
motion for summary judgment on the merits because the plaintiff was held not to be qualified,
the court ruled as a preliminary matter that a reasonable juror could conclude that he was
regarded as an individual with a disability, because the employer had medical documentation of
his blood disorder and relied on it in concluding that he was unfit for duty. See also LaPier v.
Prince George’s Cnty., Md., 2012 WL 1552780 (D. Md. Apr. 27, 2012).
Lafata v. Dearborn Heights Sch. Dist. No. 7, 2013 WL 6500068 (E.D. Mich. Dec. 11, 2013).
The employer’s decision to rescind a conditional job offer based on a post-offer medical opinion
of the applicant’s impairment by the employer’s contract physician which imposed restrictions
on climbing ladders and lifting more than 40 pounds, demonstrated that the employer “regarded”
the applicant as an individual with a disability.
Kiniropoulos v. Northampton Cnty. Child Welfare Serv., 917 F. Supp. 2d 377 (E.D. Pa. 2013).
The same month that the plaintiff, a county child welfare caseworker, notified his employer of
limitations due to a leg injury and requested FMLA leave, he was suspended and subsequently
terminated for alleged infractions and misconduct. While granting the employer’s motion to
dismiss the plaintiff’s ADA claim on the grounds that he was not “qualified,” the court first ruled
that his allegations were sufficient for purposes of “regarded as” coverage. Although the
plaintiff did not expressly allege that his injury would last six or more months, it was not
apparent on the face of the pleadings that it would not. Moreover, case law permits an inference
that an employer’s action was based on disability where there is temporal proximity between the
action and the time that the employer learned of the employee’s medical condition.
B.
Definition of “Qualified Individual with a Disability”
1.
Essential Functions
a.
Employer Judgment/Job Descriptions
Demyanovich v. Cadon Plating & Coatings, L.L.C., 747 F.3d 419 (6th Cir. 2014). Reversing
summary judgment for the employer, the court noted that the job description did not identify
lifting or any other physical fitness requirements for a machine operator, thus suggesting they
were not essential functions. The plaintiff had congestive heart failure, dilated cardiomyopathy,
and diabetes. He requested and was denied FMLA leave and reassignment to less physically
demanding jobs. Ultimately, he was terminated. The court noted that while there was evidence
that the plaintiff was unable to perform certain physical tasks at the time of his deposition, there
12
was no evidence that he was unable to perform those tasks at the time he was terminated.
Indeed, the plaintiff’s supervisor testified that the plaintiff was performing satisfactorily at the
time of his termination and that he was not fired for performance problems.
Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014). Reversing summary judgment for the
employer, the court held that there was a genuine issue of material fact whether driving a fire
apparatus under emergency lights was an essential function of a firefighter. After the plaintiff
developed monocular vision, the defendant fired him. Initially, the department doctor who
examined the plaintiff released him to return to work, but the chief medical officer reversed that
decision after receiving a call from the Fire Chief complaining about the decision. Although the
National Fire Protection Association (NFPA) guidelines list the ability to operate a fire apparatus
in an emergency mode as an essential job task of a firefighter, evidence did not show that the
defendant had adopted those guidelines. The record also suggested that the chief medical officer
was unfamiliar with the NFPA guidelines and did not use them in determining that the plaintiff
was no longer qualified. While the ADA states that courts should give “consideration” to an
employer’s judgment in determining the essential functions of a position, it does not require
courts to defer to such judgment or to ignore the other statutory factors to be considered in
identifying the essential functions. The plaintiff stated that the consequences of excusing him
from driving an apparatus during an emergency would have been minimal, that this task was not
highly specialized, and that there were enough other firefighters available to perform this
function. Multiple firefighters noted that not everyone was required to drive an emergency
vehicle. Supporting this evidence, the job description, under “essential functions,” mandated
performance of all listed job duties but also stated that a person “may” need to drive in an
emergency. Finally, the court held that the plaintiff’s statement that he would feel compelled to
drive an emergency vehicle if ordered to do so did not make it an essential function, noting that a
central purpose of the ADA is to prohibit employers from requiring employees with disabilities
to perform tasks that the law deems nonessential.
Henschel v. Clare Cnty. Rd. Comm’n, 737 F.3d 1017 (6th Cir. 2013). As the result of an abovethe-knee leg amputation necessitated by a motorcycle accident, Henshel was no longer able to
haul an excavator using a truck with a manual transmission, a job function he had performed
routinely before the accident. Reversing summary judgment for the employer, the court held that
a genuine issue of fact existed whether hauling an excavator was an essential function of the
excavator operator position, because the job description did not list this particular duty. Hauling
an excavator was listed in the position description for a truck/tractor driver, but not in the
plaintiff’s excavator operator position. The defendant argued that hauling an excavator fell
under “other duties assigned” and that this covered assignment of any job duty from any other
job description. The court disagreed, reasoning that not every duty that may be assigned is
automatically an essential function, because to conclude otherwise would make the job
description meaningless. Essential functions must be fundamental to a particular position, not
marginal. Finally, while an employer’s judgment carries weight in determining whether a
function is essential, it is only one factor to be considered.
Majors v. General Elec. Co., 714 F.3d 527 (7th Cir. 2013). Affirming summary judgment for the
employer, the court held that the ability to lift objects weighing over 20 pounds was an essential
function for a position requiring an employee to inspect, test, and audit a variety of purchased
13
components and internally manufactured parts for conformance to engineering specifications and
quality standards. As a result of a work injury, the plaintiff was unable to lift more than 20
pounds and could not raise her right arm above shoulder level. The job description noted that the
position required “intermittent movement of heavy objects.” In addition, a person who used to
work in the position and a manager who supervised others in the position confirmed that
someone in the position needed to be able to lift parts and materials weighing more than 20
pounds. Finally, the defendant’s labor resources manager and an ergonomic technical specialist
verified that objects that the plaintiff would have to lift weighed more than 20 pounds.
Knutson v. Schwan’s Home Serv., Inc., 711 F.3d 911 (8th Cir. 2013). Affirming summary
judgment for the employer, the court held that it was an essential function of a location general
manager to be DOT-qualified to drive a delivery truck. The position description stated this
requirement, as did the plaintiff’s conditional job offer. After a penetrating eye injury, the
plaintiff was required to undergo a medical examination and recertification pursuant to DOT
regulations that apply to drivers of commercial vehicles. The doctor refused to give the plaintiff
the certification or a waiver, and the company fired him. Other supervisors testified that
managers drove delivery trucks to deliver products and to train new employees. Exempting
managers from these duties would have resulted in fewer products being delivered and therefore
a drop in sales, as well as having to restructure how new drivers were trained. Although
managers may have driven these trucks infrequently, all other managers had the DOT
certification, and nobody could legally drive a truck without it. The plaintiff also conceded that
he drove the truck before his injury. Although the company had permitted the plaintiff to remain
in his position for several months after the injury (without driving a truck), the ability to obtain
DOT certification remained an essential function. The company had hoped that the plaintiff’s
eyesight would improve and therefore delayed having him undergo the medical examination.
The court concluded that the defendant was not required to exempt the plaintiff from obtaining
DOT certification so that he could drive the delivery trucks.
b.
Limited Number of Employees
Henschel v. Clare Cnty Rd. Comm’n, 737 F.3d 1017 (6th Cir. 2013). Reversing summary
judgment for the employer, the court held that a genuine issue of fact existed whether hauling an
excavator to a worksite was an essential function of an excavator operator position, even with
only one semi-truck driver available to whom this function could have been reassigned. As the
result of an above-the-knee leg amputation necessitated by a motorcycle accident, Henshel was
no longer able to haul an excavator using a truck with a manual transmission, a job function he
had performed routinely before the accident. The semi-truck driver testified that, in addition to
his other duties, he would have been able to haul the excavator. A former excavator operator
testified that there would have been minimal consequences to operations if this duty had been
assigned to the one available semi-truck driver. The former excavator operator also testified that
he had not routinely driven the excavator to the worksite (though there were two semi-truck
drivers available at that time). Finally, the former operator noted there were a number of other
employees besides the semi-truck driver who were qualified and able to transport the equipment,
if necessary.
14
c.
Time Spent Performing Function/Consequence(s) of NonPerformance
Samson v. Federal Express Corp., 746 F.3d 1196 (11th Cir. 2014). Reversing summary
judgment for the employer, the court held that there was a genuine issue of material fact whether
test driving trucks was an essential function of a mechanic, given the minimal amount of time
that was spent performing this function. The job description required all mechanics to have a
commercial driver’s license for interstate driving. To obtain this license an individual must pass
a DOT medical examination. Due to his insulin-dependent diabetes the plaintiff failed the
examination, and the employer withdrew its job offer. The court noted that requiring a
commercial license might mean that test driving was a “highly specialized” job function and that
a mechanic’s need to be able to repair a truck might involve test driving the vehicle. However,
the person eventually hired for the mechanic position testified that in three years he had only test
driven trucks three times and that on at least one occasion he had someone else test drive a truck
while he sat in the passenger seat and diagnosed the mechanical problem. This mirrored the
experience of mechanics in similar jobs in other facilities, who test drove an average of under
four hours per year. The court reasoned that if test driving were an essential function, it would
be performed with more regularity by mechanics. The court also noted that although Samson
would have been the only mechanic at the facility, there were nine other licensed truck drivers
who could have test driven vehicles.
Henschel v. Clare Cnty. Rd. Comm’n, 737 F.3d 1017 (6th Cir. 2013). Reversing summary
judgment for the employer, the court held that a genuine issue of fact existed regarding the
amount of time the plaintiff had spent hauling an excavator, thus calling into question whether
this job duty had been an essential function of his excavator operator position. As the result of
an above-the-knee leg amputation necessitated by a motorcycle accident, Henshel was no longer
able to haul an excavator using a truck with a manual transmission. Although Henshel had
performed the function 70% of the time before his accident, the record did not address how much
time he had actually spent transporting the equipment. The excavator was not transported every
day and could remain at a worksite for weeks at a time. In fact, Henschel testified that the
excavator remained at a job site 90% of the time.
d.
Rotating Among Job Functions
e.
Attendance and Work Schedules
No new cases added.
EEOC v. Ford Motor Co., 29 A.D. Cas. (BNA) 1140, 2014 WL 1584674 (6th Cir. Apr. 22,
2014). Reversing summary judgment for the employer, the court held that there was a genuine
factual issue whether physical attendance in the workplace was an essential function of a resale
steel buyer. As a result of irritable bowel syndrome, Jane Harris requested authorization to
telework on an as-needed basis as a reasonable accommodation. Ford denied the request and
proposed several alternative accommodations which Harris declined; eventually it terminated
Harris. While the court acknowledged that many positions “undoubtedly” require physical
attendance in the workplace, it stated that recent technological developments meant that there
15
was no longer a reason to assume that presence in an employer’s “brick-and-mortar location”
was always “synonymous” with workplace attendance. The real issue was not whether
attendance was an essential function but whether an employee’s physical presence in the Ford
facility was an essential function of the resale buyer position. The court was not persuaded that
the teamwork required for this position necessitated Harris’s physical presence in the facility.
While Ford managers stated that the job required face-to-face interactions to facilitate group
problem-solving, the court emphasized that an employer’s business judgment was only one
factor to consider in determining the essential functions of a job. In Harris’s experience, most
communication with internal and external stakeholders was accomplished via conference call,
even when she had been present in the facility. While Harris was required to make occasional
site visits, Ford presented no evidence that she would be less able to do so if she worked partially
or even primarily from home. Moreover, the company permitted others in the same job to
telecommute, although less frequently than Harris had requested. Finally, the court emphasized
its decision was not a rejection of “the long line of precedent” recognizing predictable attendance
as an essential function of most jobs.
McMillan v. New York, 711 F.3d 120 (2d Cir. 2013). Reversing summary judgment for the
defendant, the court held that a reasonable juror could find that arrival at work at a specific time
was not an essential function for a city case manager. The agency’s flex-time policy permitted
employees to arrive between 9 and 10:15 a.m. A supervisor could approve or disapprove a late
arrival; if approved, the employee could apply accumulated leave or “banked time” – additional
hours worked – to cover the time missed. Due to medication taken for his schizophrenia, the
plaintiff was drowsy and sluggish in the morning, often resulting in arrival after 11 a.m. For a
period of at least 10 years, the plaintiff’s tardy arrivals were explicitly or implicitly approved,
and he was allowed to use banked time to make up for his late arrival. But, in 2008,
management decided to stop approving the plaintiff’s late arrivals, prompting the plaintiff to
request repeatedly that he be given a later start time. The agency refused, stating that the
plaintiff could not work past 6 p.m. without a supervisor present. The agency began disciplining
the plaintiff and ultimately issued a 30-day suspension. The appeals court concluded that
physical presence at or by a specific time is not, as a matter of law, an essential function for all
jobs. Although a specific arrival time would be an essential function for many jobs, the district
court had failed to do a “penetrating factual analysis” to determine whether arrival at a specific
time was an essential function of the plaintiff’s job. The appeals court observed that for 10 years
the agency had routinely approved the plaintiff’s late arrivals and that the agency’s flex-time
policy permitted all employees a window of over one hour to arrive at work, suggesting that
punctuality might not have been essential. Cases cited by the agency and district court were
distinguishable because they involved facts that supported a finding that arrival at a specific time
was an essential function. Finally, on remand the district court would be required to consider
whether the plaintiff could perform his essential functions by working longer hours on certain
days so that he could bank time for days he was tardy and still work 35 hours per week.
f.
Mandatory Overtime
g.
Public Safety
No new cases added.
16
No new cases added.
h.
Ability to Handle Stress
Hill v. Walker, 737 F.3d 1209 (8th Cir. 2013). Affirming summary judgment for the Arkansas
Department of Human Services, the court held that handling stressful cases was an essential
function of a family service worker. Hill, who had depression and anxiety, asked to be removed
from a case after being subjected to a client’s harassment and verbal abuse, including racial slurs.
The court deferred to the employer’s judgment that the ability to handle a difficult case or a
stressful client is the “nature of this business” and noted that the plaintiff’s job description
explained that an employee will experience “frequent exposure to physical and verbal abuse,”
warned of a “stressful environment,” and emphasized that “regular contact with clients” is part of
the job. Permitting individual caseworkers to choose among case assignments based on their
toleration of stress could wreak havoc for management, especially because the agency was
already short staffed.
Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736 (10th Cir. 2013). Affirming summary
judgment for the employer, the court held that a deputy sheriff unable to handle stress, which
was an essential function of his position, was not qualified for the job. After the plaintiff had a
stroke and returned to work, colleagues expressed concerns about his behavior, including that he
had become flustered while making a traffic stop because he could not remember a particular
word and he had lost his temper while on the job. While a neurological fitness-for-duty
examination did not find any problems, the doctor referred him to a neuropsychologist because
of possible problems with cognitive functioning. The psychologist found mild to moderate
fatigue, episodes of lightheadedness, and episodes of weeping, from which he concluded the
plaintiff should be in a low-stress position in which he would not have regular contact with the
public. The plaintiff introduced no evidence contradicting the psychologist’s findings that he
had lingering psychological problems that interfered with the ability to handle stress. Evidence
that he was physically capable of performing the job was irrelevant. Similarly, the fact that his
scores on a standard psychological test were unchanged since he first took them years ago did
not conflict with or undermine the psychologist’s findings. The defendant’s removal of the
plaintiff from his job was based on an individualized assessment stemming from observations by
fellow officers and two medical examinations. Finally, the fact that the plaintiff performed other
essential functions without incident did not undermine the psychologist’s findings, because those
functions did not involve exposure to stressful situations.
i.
Interacting with Others
j.
Travel
k.
Modified Positions
No new cases added.
No new cases added.
17
No new cases added.
l.
Question for Jury/Factual Issue
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the
employer, the court held that genuine issues of material fact existed as to whether hearing was an
essential function for a lifeguard at a wave pool and whether the plaintiff was otherwise qualified
without the ability to hear. Although the court presumed that communicating was an essential
function of the lifeguard position in order to supervise water activities, enforce safety rules,
maintain water areas, and teach swim lessons, the plaintiff presented sufficient evidence that
hearing might not be necessary to communicate effectively. His most compelling evidence came
from experts with knowledge, education, and experience regarding the ability of deaf individuals
to be lifeguards. In addition, evidence showed that a purely visual technique is used by
lifeguards to scan the area for any distressed swimmers. Several experts testified that such
detection is almost completely visually based. Moreover, to obtain his lifeguard certification, the
plaintiff had to demonstrate the ability to detect distressed swimmers. With a “modest”
modification, he would also be able to communicate with other lifeguards during lifesaving. The
defendant itself had proposed a reasonable accommodation that it thought would improve
communication generally between lifeguards in signaling an emergency situation. Evidence also
showed that verbal enforcement of safety rules is generally impractical in a noisy water park and
that most lifeguards use whistles and physical gestures to maintain safety. The defendant also
had proposed having the plaintiff carry laminated cards to aid basic communication with the
public. (The court suggested that some of this communication was possibly a marginal function
because attendants were available throughout the water park to assist patrons with basic needs
and questions.)
2.
Statements Made in Benefits Proceedings
Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950 (9th Cir. 2013). The plaintiff, whose back injury
limited her ability to stand, bend, or stoop, was told that she would be transferred from her
literary-specialist position to a kindergarten teaching position the following school year. After
aggravating her back injury, the plaintiff took extended FMLA leave, drew private disability
benefits, and requested reinstatement to her literary-specialist position or transfer to another nonteaching position requiring minimal movement, as a reasonable accommodation. The request
was denied, and the plaintiff applied for disability retirement under the Nevada Public
Employees’ Retirement Systems (PERS). The court held that statements that the plaintiff had
made on her FMLA, private disability, and PERS applications did not preclude a lawsuit alleging
unlawful denial of reasonable accommodation, because, under the standard set by Cleveland v.
Policy Management System Corp., 526 U.S. 795 (1999), she had provided an adequate
explanation of their apparent inconsistency with the claim that she was “qualified” for purposes
of her ADA claim. Her statements that she was “totally disabled” and “could do no work at all
until released by a doctor,” she explained, were made on her FMLA and private disability
benefits applications and were therefore meant to describe a temporary, rather than permanent,
inability to work. The statements on her PERS application that she could not perform the duties
of a kindergarten teacher or a literary specialist, that she was “unable to work due to injury or
18
mental or physical illness,” and that she wished to apply for “total and permanent disability,” she
explained, were not intended to address her ability to work with a reasonable accommodation.
Further, the plaintiff’s failure to indicate on the PERS form an ability to work “in a limited
capacity” did not jeopardize her claim, because being able to work in a limited capacity is not the
same thing as being able to work with a reasonable accommodation.
a.
Plaintiff Still May Be a Qualified Individual with a Disability
b.
Plaintiff Is Not a Qualified Individual with a Disability
No new cases added.
No new cases added.
3.
Miscellaneous
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the
defendant, the court held that genuine issues of material fact existed as to whether the defendant
had made an individualized inquiry to determine whether the plaintiff, who was deaf, was
qualified to be a lifeguard. At the post-offer medical examination, the doctor declared the
plaintiff to be unqualified immediately after realizing the plaintiff was deaf, without doing any
type of individualized assessment. The doctor’s report stated that the plaintiff could be a
lifeguard only with constant accommodation (never identified), and even then, the doctor did not
think such accommodation would be adequate. The defendant then contacted aquatic safety
consultants, who voiced serious doubt about the plaintiff’s qualifications and asserted that,
without 100% certainty that accommodations would always be effective, the plaintiff would pose
a safety hazard. As a result, the defendant withdrew its job offer. The district court concluded
that while the doctor who declared the plaintiff unqualified had not made an individualized
inquiry, the ultimate decisionmaker for the defendant had made an individualized assessment of
the plaintiff’s ability to be a lifeguard because: (1) county staff had observed him while he took
the county’s lifeguard training program to earn certification; (2) staff developed possible
accommodations for the plaintiff; and (3) staff and management had supported his hiring.
Although the appeals court agreed with this conclusion, it questioned why the defendant then
subsequently withdrew its job offer: did the defendant alter its assessment based on a doctor’s
report and the advice of the aquatic safety consultants, and if so, did the defendant’s
individualized inquiry satisfy the ADA? Noting that it appeared “incongruent with the
underlying objective of the ADA for an employer to make an individualized inquiry only to defer
to the opinions and advice of those who have not,” the appeals court remanded the case to the
district court to address these issues.
Hohn v. BNSF Ry. Co., 707 F.3d 995 (8th Cir. 2013). Affirming a jury verdict in the employer’s
favor, the court upheld the conclusion that the plaintiff was unable to perform the essential
functions of a locomotive machinist due to his advanced stage retinitis pigmentosa. The
optometrist who diagnosed Hohn placed restrictions on him that prevented him from performing
the essential functions of his position, including not walking on uneven surfaces (he’d fallen on
such a surface before being diagnosed), only occasional bending or stooping, no operating
19
vehicles or machinery, no climbing ladders or scaffolds, no working at unprotected heights, and
no job requiring more than a 15-degree visual field. In short, the doctor recommended that Hohn
work only in a confined work station, the opposite of the working environment of a locomotive
machinist, which required that he work within, around, over, and under locomotives.
Furthermore, the work environment included variable lighting, uneven surfaces, scaffolding,
ladders, ramps, stairs, and overhead objects. Hohn disputed his doctor’s restrictions and testified
that he ignored them, but he could offer no medical evidence that contradicted them. The court
concluded that the ADA does not require an employer to ignore restrictions from an employee’s
doctors.
C.
Disparate Treatment
1.
Generally
Terrugi v. CIT Group/Capital Fin., Inc., 709 F.3d 654 (7th Cir. 2013). The plaintiff, who had
several bones removed from his right hand, alleged that his termination was based on disability,
age, and retaliation for filing a workers’ compensation claim. Affirming summary judgment for
the employer, the court held that the plaintiff’s circumstantial evidence of discriminatory intent
was insufficient to raise a genuine issue of material fact under the direct method of proof.
Assertions that the employer secretly monitored the plaintiff’s email for a year, did not interview
him for a senior position until it had been offered to someone else, and fired him for what he
believed to be a minor violation of the company’s confidentiality policy after a very brief
investigation did not support his claim under the direct method, because they constituted “an
amorphous litany of complaints about a myriad of workplace decisions,” instead of “pointing
directly” to discrimination. Comments by the plaintiff’s supervisor about the plaintiff’s
retirement plans, being old, and being on drugs were also insufficient, because they were not
made around the same time, or in reference to, the termination decision.
Nayak v. St. Vincent Hosp. & Health Care Ctr., 27 A.D. Cas. (BNA) 596, 2013 WL 121838
(S.D. Ind. Jan. 9, 2013). The plaintiff’s medical residency contract was not renewed “due to her
medically complicated pregnancy and significant concerns regarding her academic progress,”
approximately two weeks after returning from a leave necessitated by post-partum difficulties
that included symphysis pubis dysfunction. After allowing the plaintiff’s prong-one (actual
disability) claim to proceed, the court dismissed her prong-three regarded-as claim because she
did not show that her perceived disability was a but-for cause of the action. In reaching its
conclusion, the court relied on Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir.
2010), and rejected the plaintiff’s argument that Serwatka was effectively overruled when the
ADA’s prohibition against discrimination “because of” disability was changed to a prohibition
against discrimination “on the basis of” disability by the ADAAA, concluding that this textual
change was too small to transform the ADA into a mixed-motives statute.
2.
“Sole Cause” Standard in ADA Cases
No new cases added.
3.
Disability-Related Statements as Evidence of Discrimination
20
No new cases added.
4.
Pretext
Smothers v. Solvay Chems., Inc., 740 F.3d 530 (10th Cir. 2014). The plaintiff’s degenerative
disc disease caused severe chronic pain and sleeping problems, necessitating frequent
intermittent FMLA leave from his surface maintenance mechanic job. After his supervisors
complained about the leave and gave him negative performance reviews for absenteeism, the
plaintiff was terminated by a “decision making group” of six supervisors, ostensibly for violating
safety procedures and engaging in hostile behavior toward a coworker. Reversing summary
judgment for the employer, the court held that the plaintiff had raised a jury question as to
whether the proffered reasons were pretext for FMLA retaliation and disability discrimination,
by identifying employees who had been treated less harshly for similar safety violations.
Although the decision making groups were not identical in each case, there was sufficient
overlap between the groups to establish that the comparators were “similarly situated.” Five of
the plaintiff’s six decision makers participated in at least one of the comparators’ decision
making groups, and each of the comparators’ decision making groups contained at least one
member of the plaintiff’s decision making group. A finding of pretext was also supported by the
employer’s failure to allow the plaintiff to explain or deny his alleged hostile behavior and the
employer’s prior retaliation and bias against the plaintiff for taking FMLA leave.
Lenzen v. Workers Compensation Reinsurance Ass’n, 705 F.3d 816 (8th Cir. 2013). Thirteen
years after she began working as an administrative assistant, and seven years after she first
developed chronic fatigue syndrome, fibromialgia, and chronic depression, the plaintiff was
issued a “final warning letter” citing recent problems with work performance, conduct, and
attendance, stating that she would be terminated if she did not make adequate progress, and
notifying her that she would be required to “key” 3.75 boxes of scanned claim files per week.
The plaintiff was terminated when, after being told by her supervisor that she had failed to meet
that week’s keying quota, she accused the supervisor of lying and “blew her stack.” Affirming
summary judgment for the employer, the court found that the plaintiff failed to support an
inference that the employer’s reasons for terminating her – inadequate performance and
insubordination – were pretext for disability discrimination where the same supervisor had
previously allowed her to take daily naps and unlimited absences as reasonable accommodations,
provided her with two years of disability leave, and promoted her after she returned to full-time
workyears before she was terminated.
D.
Reasonable Accommodation
1.
Notice of the Need for Reasonable Accommodation
Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013). Affirming summary judgment for
the employer, the court held that the plaintiff did not request a reasonable accommodation when
she initially informed her employer that she had difficulty walking from her assigned parking
place to her office, because she did not specifically ask for an accommodation. However, the
court found that she requested a reasonable accommodation for her multiple sclerosis more than
two months later when she submitted a list of medical restrictions from her doctor, including one
21
asking for “specified parking . . . if possible.” Although the plaintiff also alleged that she
requested that her work be proofread by another employee as a reasonable accommodation, the
court found no evidence that she informed her employer that her poor written work was related
to her disability or asked for a reasonable accommodation for her written work.
Lenzen v. Workers Compensation Reinsurance Ass’n, 705 F.3d 816 (8th Cir. 2013). Affirming
summary judgment for the defendant, the court held that an employee with fibromyalgia and
chronic fatigue syndrome who had received reasonable accommodations failed to request
additional ones and therefore the defendant was not liable for failing to provide them. In
response to a doctor’s note, the defendant permitted Lenzen to nap each day and gave her time
off for frequent medical appointments. The defendant also reduced her job requirements.
Lenzen claimed that she should have been paid for the time she spent taking naps and that “at
times” the defendant failed to provide her with a private office in which to nap, forcing her to
sleep on the floor or at her desk. There was no evidence, however, that Lenzen asked for a better
space in which to nap or to be paid for this time. Furthermore, she presented no evidence that
the places where she napped negatively impacted her medical condition or her job performance.
2.
Interactive Process
EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. Apr. 22, 2014). Reversing summary
judgment for the employer, the court held that the employer, which had rejected a request to
telework for a large portion of the work week, should have used the interactive process to
explore reasonable alternatives. As a result of irritable bowel syndrome, Jane Harris, a resale
buyer, requested authorization to telework on an as-needed basis up to four days a week as a
reasonable accommodation. Ford denied the request and proposed several alternative
accommodations, which Harris declined; eventually it terminated Harris. The court stated that it
was Ford’s responsibility to engage in an interactive process with Harris if it objected to her
teleworking up to four days a week. Harris had been willing to discuss alternatives, including
telecommuting for only one to two days per week. Having failed to engage in this discussion,
Ford could not show that no telework arrangement was reasonable. The court also rejected
Ford’s argument that its offer to provide alternative accommodations, which Harris rejected,
meant she was not qualified for the job. Alternative accommodations must adequately meet an
employee’s needs, and the evidence suggested that Ford’s two alternatives – moving her closer
to the bathroom and finding a reassignment that permitted telework – would not have effectively
met Harris’s needs. Even standing up from her desk could have caused Harris to soil herself, so
proximity to the bathroom would not necessarily have resolved this issue. Contrary to the
dissent, the court concluded that it was not reasonable to expect Harris to tolerate the
“humiliation” of soiling herself on a regular basis in front of coworkers, merely because she
could use Depends or bring a change of clothing. As for reassignment, the court noted that Ford
offered only to look for a position, not guarantee it could move her into one. While an employer
normally may choose between “reasonable options,” choosing reassignment here was not an
effective accommodation because the telework she had requested in her current position might
have been effective.
Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014). Reversing summary judgment for the
employer, the court held that there was a genuine issue of material fact whether the employer
22
committed an independent violation of the ADA by failing to engage in good faith in the
interactive process. After developing monocular vision, the defendant fired the plaintiff, a
firefighter, because of his inability to drive a fire apparatus under emergency lights. The court
found that the plaintiff had requested two reasonable accommodations – reassignment of the
marginal function of driving the fire truck and reassignment to a new position. The court noted
that the defendant ignored evidence that driving the vehicle during an emergency was not an
essential function and instead made a preemptory decision that Rorrer was unqualified to remain
in the firefighter position. Similarly, the defendant’s refusal to discuss reassignment suggested
bad faith, reinforced by its insistence that Rorrer would still have to be able to perform the
driving requirement even though there was no indication that anyone in the new position ever
actually drove a fire truck during an emergency. The record suggested that, if the defendant had
engaged in a good faith interactive process, it could have reassigned Rorrer without having to
modify any actual job duties.
Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014). Reversing summary judgment
for the employer, the court held that the employer violated the ADA by abruptly ending the
interactive process and terminating the plaintiff, when further engagement would have identified
a reasonable accommodation. After repeatedly falling asleep at work, the plaintiff received a
warning of possible termination and was notified that she could submit information relevant to
this determination. A few days later she informed Human Resources (HR) that a medical
condition might be responsible for her sleeping episodes, and was given a medical questionnaire
for her doctor to fill out that was due two weeks later. The doctor checked the box indicating
that the plaintiff had an ADA disability, recommended periodic breaks, and noted he was
conducting additional medical tests. The plaintiff immediately returned the paperwork to HR,
well within the two-week deadline, but the company proceeded with termination. A month later,
the plaintiff received a definitive diagnosis of narcolepsy, which is manageable with proper
medication.
The court noted that the employer had not yet decided whether to fire the plaintiff when she
notified the company that she might have a medical condition causing the sleeping episodes.
The defendant correctly began the interactive process by giving the plaintiff the medical
questionnaire for her doctor, but it did not engage her further when it received the completed
document and instead disregarded it. The court rejected as insufficient the defendant’s claim that
it engaged in the interactive process by giving the plaintiff the medical questionnaire. The
defendant claimed that it was not required to accept the doctor’s “opinion” that the plaintiff had
an ADA disability, but the court noted that the company chose not to seek clarification from the
doctor about the severity of her condition or to inquire what reasonable accommodations might
be effective. Although failure to engage in the interactive process is not an independent basis for
liability, a violation may be found if failure to engage in this process prevents identification of an
appropriate accommodation. Here, the evidence suggested that a reasonable accommodation
was “readily available” in that the plaintiff needed only further medical testing and a prescription
to control her narcolepsy.
Wilson v. Dollar Gen. Corp., 717 F.3d 337 (4th Cir. 2013). Affirming summary judgment for
the employer, the court held that an employer is not liable for failing to engage in an interactive
process where an employee is unable to provide evidence that his requested reasonable
23
accommodation – here, a two-day extension of leave – would have enabled him to return to
work. The defendant had already granted the plaintiff six weeks of leave to obtain treatment for
a serious eye infection, which it extended for two additional weeks, and then it granted one extra
day of leave. When the plaintiff arrived at work on his anticipated return date, he presented a
doctor’s note requesting two more days of leave with a return date of April 9, 2010. The
employer denied the requested accommodation and fired him. The court noted that there was no
evidence that, if the defendant had engaged in a good faith interactive process, a reasonable
accommodation would have been found that would have enabled the plaintiff to resume
performance of his essential functions. Although the plaintiff testified that he resumed looking
for a job about 10 days after his termination, this testimony did not establish that he could have
returned to work with a two-day extension of leave.
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the
employer, the appeals court instructed the district court on remand to address whether the
defendant had failed to engage in an interactive process. The district court did not address this
issue because it had found that the plaintiff had failed, as a matter of law, to identify an
accommodation that was objectively reasonable, a conclusion the appeals court found was
erroneous for summary judgment purposes. The plaintiff, a deaf individual who applied to be a
lifeguard at a wave pool, argued that the defendant failed to discuss with him concerns raised by
the doctor who conducted the post-offer examination and by aquatic safety consultants. The
plaintiff maintained that if the defendant had engaged in an interactive process, it would have
learned about his ability to detect loud noises through his cochlear implant. He also could have
clarified that he did not need sign language interpreters to perform his essential functions but
only for staff meetings and classroom instruction. Finally, the plaintiff could have referred the
defendant to individuals with expertise regarding the ability of deaf people to be lifeguards.
Basden v. Professional Transp., Inc., 714 F.3d 1034 (7th Cir. 2013). Affirming summary
judgment for the employer, the court held that even though the record suggested that the
employer’s response to Basden’s request for a 30-day leave of absence was not “appropriate,”
the employer did not violate the ADA since failure to engage in the interactive process is not an
independent basis for liability and the employee failed to show that she could work with a
reasonable accommodation.
Cloe v. City of Indianapolis, 712 F.3d 1171 (7th Cir. 2013). Affirming summary judgment for
the employer, the court held that the defendant’s efforts to provide the plaintiff with an
appropriate parking space met its reasonable accommodation obligation, even if it took several
months for the plaintiff to finally receive a parking space that effectively met her needs. The
court also found that the defendant’s efforts to give her a printer near her office were sufficient.
The court noted that reasonable accommodation is “a process, not a one-off event.” The ADA
does not require that an employer provide an employee with the specific accommodation
requested but rather engage the employee in an interactive process to determine what would be
an effective accommodation. In this case, the plaintiff developed multiple sclerosis and
submitted a list of medical restrictions, including one asking for “specified parking . . . if
possible.” In response, the defendant assigned the plaintiff to a lot across the street from her
worksite. About three months after her initial request, she submitted a doctor’s note asking for a
parking space in her building because parking in the new lot required more walking than she
24
could handle. The defendant responded about six weeks later by giving her visitor parking
passes for the underground lot beneath her building and for street parking, but these proved
ineffective because the spots she required were often full when she arrived. The plaintiff
informed the defendant of the problem, and within a few weeks, after another employee left his
position, she received his permanent underground parking space. The court stated that there was
no way for the employer to have known that the initial parking spaces provided would turn out to
be insufficient. Furthermore, each time the defendant learned an accommodation was not
working, it acted with “reasonable speed” to provide a new one. Regarding the printer, the
defendant took between two weeks and one month to provide the plaintiff with a printer for her
office after she requested one. The plaintiff argued that the defendant should have immediately
bought her a printer or given her a temporary one to use. However, the fact that the defendant
ultimately took a printer from another employee suggested there were no printers to lend to the
plaintiff, and as a governmental entity it had a responsibility to evaluate alternative
accommodations before spending taxpayer money. The issue was not whether the defendant
could have chosen another accommodation but whether the chosen accommodation, in light of
all the facts, was reasonable. Under this standard, a delay of several weeks before providing an
effective accommodation was not unreasonable.
James v. Hyatt Regency Chicago, 707 F.3d 775 (7th Cir. 2013). Affirming summary judgment
for the employer, the court held that the plaintiff’s delayed return to work was caused by his
failure to clarify the meaning of several doctor’s notes indicating an inability to perform the
essential functions of his banqueting job, rather than by the employer’s refusal to resume
providing accommodations given before the plaintiff’s use of extended medical leave. The
plaintiff had a vision problem that was exacerbated when he developed a retinal detachment
requiring corrective surgery.
Prior to this, the defendant had provided reasonable
accommodation for over 20 years (increasing the print size of his work assignments and
schedules). The plaintiff was granted FMLA leave and, when that was exhausted, he received
leave under the collective bargaining agreement. After the expiration of the FMLA leave the
plaintiff provided notes from his doctor, one of which stated that he would not be able to work
until early August (about three weeks after the expiration of the FMLA leave). The plaintiff did
not return to work in August but submitted a note from a different doctor in late September
saying he could return to work with the restrictions of no heavy lifting or excessive bending. In
response, the defendant tried unsuccessfully to obtain more information about the restrictions;
the defendant made a second unsuccessful attempt to obtain information in December. In
January 2008 the defendant contacted the first doctor to ask about the plaintiff’s medical
condition and was informed that the plaintiff could return to work. The defendant then met with
the plaintiff who sought and was granted two weeks of paid vacation. The plaintiff returned to
work in mid-February. The plaintiff alleged several FMLA violations and that the defendant’s
delay in returning him to work resulted from its wish to avoid providing the reasonable
accommodations he had received for the past two decades. The court concluded that the
defendant’s refusal to reinstate the plaintiff was unrelated to the need to continue providing
reasonable accommodations that it had provided for over 20 years; rather, reinstatement was
denied because the plaintiff and his doctors did not provide more specificity about the need for
light duty or certain restrictions that would prevent performance of the essential functions of his
job.
25
3. Job Restructuring, Other Alterations to the Job or Work Environment,
Part-Time Work, and Modified Work Schedules
Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014). After the plaintiff developed monocular
vision, the defendant fired him because he could not drive a fire apparatus under emergency
lights. Reversing summary judgment for the employer, the court held that there was a genuine
issue of material fact whether the function of driving a fire apparatus under emergency lights
could have been reassigned to another firefighter. If this job duty was not an essential function,
then it could have been assigned to another firefighter as a reasonable accommodation.
McMillan v. New York, 711 F.3d 120 (2d Cir. 2013). Reversing summary judgment for the
employer, the court held that the plaintiff had suggested two plausible reasonable
accommodations to address his disability-related tardiness, thereby raising a material factual
issue as to whether he could perform the essential functions of a case manager. The employer’s
flex-time policy permitted employees to arrive between 9 and 10:15 a.m. A supervisor could
approve or disapprove a late arrival, and if approved, the employee could apply accumulated
leave or “banked time,” i.e., to cover the time missed. Employees were required to work 35
hours per week, and they had a mandatory one-hour lunch period in which they were prohibited
from working without prior approval. Due to medication taken for his schizophrenia, the
plaintiff was drowsy and sluggish in the morning, often resulting in arrival after 11 a.m. For a
period of at least 10 years, the plaintiff’s tardy arrivals were explicitly or implicitly approved,
allowing him to use banked time to make up for his late arrival. But, in 2008, management
decided to stop approving the plaintiff’s late arrivals, prompting him to request repeatedly that he
be given a later start time because of the side effects of his medication. The employer refused,
stating that he could not work past 6 p.m. without a supervisor present. The plaintiff noted that
he often worked past 7 p.m. and that the office was open until 10 p.m., so that his request to
work later would permit him to arrive after 10:15 yet meet his 35-hour requirement and bank
extra hours to use when he was tardy. Alternatively, the plaintiff proposed that he be allowed to
work through lunch to bank time.
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the
employer, the court held that genuine issues of material fact existed as to whether job
restructuring, a form of accommodation listed in the statute, would have enabled a deaf
individual to perform the essential functions of a wave pool lifeguard. Communicating was an
essential function in order to supervise water activities, enforce safety rules, maintain water
areas, and teach swim lessons. Evidence showed that several accommodations initially proposed
by a defendant official would have allowed the plaintiff to perform the essential function of
effectively communicating while on duty, at little or no cost to the defendant. For example, the
plaintiff could have carried laminated note cards to communicate with guests in non-emergency
situations; he could have used his whistle and gestures to enforce pool rules; and he could have
looked at other lifeguards while visually scanning his zone of the pool to determine if they were
entering to assist a swimmer. The defendant official also had suggested modifications to their
emergency action plan involving using visual signals that would improve the effectiveness of
emergency response for all lifeguards and therefore was to be implemented even if the plaintiff
was not working. The court acknowledged testimony by the defendant that other employees may
26
have had to assume extra duties because of the plaintiff’s deafness, but this was insufficient to
grant summary judgment. Evidence suggested that the duties to be reassigned might have been
marginal ones, such as answering general questions from patrons (other employees might have
had primary responsibility for this duty), using a megaphone or radio, handling first aid needs,
and working at the slide (a popular rotation for other lifeguards).
Olsen v. Capital Region Med. Ctr., 713 F.3d 1149 (8th Cir. 2013). Affirming summary
judgment for the employer, the court held that, despite a number of reasonable accommodations
provided by the employer, a mammogram technologist with continuing, unpredictable epileptic
seizures that caused loss of orientation and muscle control was not qualified for her job. The job
included positioning patients in the mammography machine, operating the radiographic
equipment, and tending to the patients’ physical and psychological needs. Between July 2008
and August 2010, Olsen had 14 seizures at work, including some in which she suffered serious
injuries and two seizures in the presence of patients receiving mammograms. During this period,
the defendant provided a number of reasonable accommodations to eliminate environmental
triggers, including removing mold, investigating cleaning agent ingredients, having other
technicians handle patients who wore heavy perfume, installing anti-glare filters on lights,
eliminating scrolling from computers, covering x-ray films to reduce brightness, permitting
Olsen to wear sunglasses, and educating Olsen’s coworkers about epilepsy and how to treat
someone having a seizure. Despite these accommodations, the seizures continued and the
defendant ultimately fired her. The court noted that the defendant had clearly engaged in an
interactive process with Olsen and attempted numerous reasonable accommodations, but nothing
had eliminated the seizures. Olsen claimed the defendant could have provided her with
intermittent rest as a reasonable accommodation, but produced no evidence that this would have
eliminated the seizures and permitted her to perform her essential functions, including the ability
to ensure patient safety. Her continued periods of incapacitation, despite the accommodations,
made her unqualified.
4.
Leave
Wilson v. Dollar Gen. Corp., 717 F.3d 337 (4th Cir. 2013). Affirming summary judgment for
the employer, the court held that an employee who was unable to provide evidence that he would
have been able to return to work at the end of a requested two-day extension of leave was not
qualified for his job processing inventory and loading merchandise. Five months after starting
work with the defendant, the plaintiff (who was blind in one eye) developed a serious
inflammatory condition in his one remaining eye. The defendant granted him an initial six-week
leave of absence to obtain treatment, followed by two additional weeks. The plaintiff’s doctor
released him to return to work on April 6, but that day his vision remained blurry. The plaintiff
immediately notified the defendant that he was still having significant vision problems, and the
company granted him one more day of leave. The plaintiff’s condition worsened, and he went to
the emergency room at the local hospital. From the hospital he drove to the defendant’s worksite
with a discharge letter saying that he could return to work in two days. Since the plaintiff
acknowledged he could not return to work that night as previously agreed, the company
terminated him, stating that he could reapply after his condition improved. The court found the
plaintiff’s testimony that he was able to look for work within 10 days of his termination to be
27
insufficient evidence that he could have performed his essential functions if he had been given
the two additional days of leave requested.
Basden v. Professional Transp., Inc., 714 F.3d 1034 (7th Cir. 2013). Affirming summary
judgment for the employer, the court held that Basden failed to produce evidence that her request
for a 30-day leave of absence would have permitted her to return and perform the essential
functions of her position on a regular, reliable basis. Basden, a train dispatcher, was permitted
seven unexcused absences under company policy, but an eighth could result in termination. She
was given a preliminary diagnosis of multiple sclerosis after her third absence but could not get
an appointment with an MS specialist for several months. She provided doctor’s notes for all her
absences. A month before her appointment with the MS specialist, Basden requested a 30-day
leave of absence due to complications from MS. By this time she had accumulated six
unexcused absences. Under company policy any employee with at least a year’s tenure could
request an unpaid 30-day leave of absence, but Basden was a little over a month shy of meeting
this requirement. The request was denied, and when she was unable to return to work, she was
fired. The court noted that Basden received a confirmed diagnosis of MS after her late June
appointment with a specialist and began taking medication in the weeks after that. The record
did not show, however, that the medication immediately alleviated her symptoms such that she
would have been able to return to work without further absences. Basden testified that her
condition got worse after she left the defendant but then eventually stabilized. The record also
indicated that, during the short time she worked in her next job, she required two weeks of leave
because of her MS. Therefore, the court concluded that the evidence did not show that a
combination of the 30-day leave requested and medication would have permitted the essential
job requirement of regular, reliable attendance.
5.
Reassignment
EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. Apr. 22, 2014). Reversing summary
judgment for the employer, the court stated that although an employer ordinarily may choose
from among several reasonable accommodations, the employer cannot choose reassignment
when it is possible to provide a reasonable accommodation in the employee’s current job without
causing an undue hardship. As a result of irritable bowel syndrome, Jane Harris requested
authorization to telework on an as-needed basis as a reasonable accommodation. Ford denied the
request and proposed several alternative accommodations, which Harris declined; eventually it
terminated Harris. Among the reasonable accommodations proposed by Ford was to find a
different job that could better accommodate Harris’s wish to telecommute. The court noted that
there was no evidence that Ford actually had a vacant job to which Harris could have been
reassigned and which would have permitted her to telework. Furthermore, since the court found
that teleworking might have been feasible in Harris’s current job, reassignment would have been
inappropriate.
Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014). Reversing summary judgment for the
employer, the court held that there was a genuine issue of material fact whether a firefighter who
developed monocular vision could be reassigned to a fire inspector position. The defendant
maintained there were no vacancies when the plaintiff requested reassignment, but evidence
showed that another employee was getting a promotion, thereby creating a vacancy. The
28
defendant also argued that the position at issue was not really a different position but rather a
firefighter position (for which the defendant maintained the plaintiff was not qualified because
he could not drive a fire vehicle during an emergency) with different job duties. The court found
this argument “lack[ed] merit” because the purpose of the fire inspector position was to prevent
fires, not fight them. Furthermore, the defendant did not dispute that the plaintiff had the
“expertise, training, and certification” to carry out the new job duties. Although the defendant
also pointed to the job description for a fire inspector, which listed the firefighter job functions
(including driving vehicles during an emergency), the court concluded that a simple reasonable
accommodation would have been to modify its job description for the plaintiff, which would not
have required any change in the actual duties he would have had to perform as a fire inspector.
Henschel v. Clare Cnty. Rd. Comm’n, 737 F.3d 1017 (6th Cir. 2013). Affirming summary
judgment for the employer, the court held that an employer was not required by the ADA to
violate a collective bargaining agreement and that a union was not required to remove a more
senior employee from his position in order to provide a reassignment to Henshel, an excavator
operator. As the result of an above-the-knee leg amputation necessitated by a motorcycle
accident, Henshel was no longer able to haul an excavator to the worksite. The union had
considered removing a more senior employee to create an opening in a job that Henschel was
qualified to perform, but decided against this. The CBA did not permit the employer to
unilaterally reassign an employee into a new job, and the ADA did not require the defendant to
create a job so that it could reassign Henschel.
Koessel v. Sublette Cnty. Sheriff’s Dep’t, 717 F.3d 736 (10th Cir. 2013). Affirming summary
judgment for the employer, the court held that a deputy sheriff failed to identify an appropriate
vacancy to which he could have been reassigned. The plaintiff had a stroke, and based on a
psychological fitness-for-duty examination, he was removed from his position and placed
temporarily in an emergency management position. After the county cut funding for this
position, there were no other vacant positions to which the plaintiff could have been reassigned.
6.
Working at Home or from a Remote Location
EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014). Reversing summary judgment for
the employer, the court held that there was a genuine factual issue whether telework was an
effective reasonable accommodation for a resale steel buyer. As a result of irritable bowel
syndrome, Jane Harris requested authorization to telework on an as-needed basis as a reasonable
accommodation. Ford denied the request and proposed several alternative accommodations,
which Harris declined; eventually it terminated Harris. While the court acknowledged case law
that held that telework was rarely an effective reasonable accommodation, it also observed that
“the class of cases in which an employee can fulfill all requirements of the job while working
remotely has greatly expanded” as a result of technological developments. Although Harris had
work problems when she had a flex-time arrangement for her disability, telework did not raise
the same concerns because she would work normal business hours. The problems Harris
experienced while she worked a flex-time schedule all occurred because she was working during
non-core hours, not because she was working from home. Furthermore, it was Ford that
prohibited Harris from working at home during core hours, leaving her no choice but to work
during non-core hours when she could not consult with colleagues. With telework, Harris would
29
be available for an emergency or to join in an impromptu meeting during core hours. Similarly,
to the extent coworkers had to take on some of Harris’s job duties, it was because she was not
working during normal work hours. Mistakes made by Harris because she could not consult
after hours with others would not have occurred if she had been working a regular schedule from
home. Ford offered no evidence that telework was “inherently problematic.” Finally, the court
rejected Ford’s argument that telework was not a reasonable accommodation given Harris’s
attendance problems, noting that her attendance issues were the result of her disability. An
employer cannot deny a reasonable accommodation that could eliminate performance problems
created by a disability.
7.
Changing Supervisors
No new cases added.
8.
Stress-Free Job
No new cases added.
9.
Workplace Free of Chemical Irritants
No new cases added.
10.
Monitoring Medication and Effects of Disability
No new cases added.
11.
Modifying Workplace Policies
No new cases added.
12.
Job Coaches/Assistance from Other Employees
No new cases added.
13.
Benefits and Privileges of Employment
Feist v. Louisiana, 730 F.3d 450 (5th Cir. 2013). An employee requesting a reserved on-site
parking space as a reasonable accommodation does not have to show how the accommodation
will enable her to perform her essential functions. Nothing in the text of the statute suggests that
there must be a nexus between a requested reasonable accommodation and the essential
functions of an employee’s position. Providing the requested accommodation could be viewed
as making the employee’s workplace “readily accessible to and usable by” her, one of the
statute’s examples of a reasonable accommodation. The court cited the EEOC regulations,
which state that reasonable accommodation includes modifications that enable an employee to
enjoy equal benefits and privileges of employment. Also, the appendix to the regulations notes
that providing a reserved parking space may be a reasonable accommodation.
30
14.
Burdens of Proof
Majors v. General Elec. Co., 714 F.3d 527 (7th Cir. 2013). Affirming summary judgment for the
employer, the court held that because the plaintiff failed to show that she could perform the
essential functions of her position with a reasonable accommodation, the employer was not
required to show that her proposed accommodation would cause an undue hardship. The
plaintiff was denied a promotion because she was prohibited from lifting over 20 pounds due to a
work injury. The court held that an essential function of the position required lifting more than
20 pounds. As a result, it rejected the plaintiff’s suggested reasonable accommodation that
another employee could lift these heavy objects instead. Since the plaintiff’s proposed
accommodation was unreasonable as a matter of law, the defendant was not required to show
that it caused an undue hardship.
15.
Sign Language Interpreters
Keith v. County of Oakland, 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the
employer, the court found sufficient evidence to create a genuine issue of material fact as to
whether providing sign language interpreters for staff meetings and further classroom instruction
was objectively reasonable for a deaf individual applying for a lifeguard position at a wave pool.
The plaintiff never requested sign language interpreters to perform his essential functions, and he
presented testimony by several experts that the ability to hear is not necessary for someone to
perform the essential functions of a lifeguard. Testimony by the doctor who conducted the postoffer examination and by aquatic safety consultants that full-time interpreters would be necessary
to perform the essential functions was insufficient to grant summary judgment, given that these
individuals had no direct knowledge, education, or experience regarding deaf individuals serving
as lifeguards. The court noted evidence of the plaintiff’s successful completion of his lifeguard
training courses as demonstrating the effectiveness of providing interpreters for classroom
instruction. The court observed that sign language interpreters are listed as a possible form of
reasonable accommodation in the statute and concluded that provision of interpreters could
easily be deemed reasonable when they would be needed only on occasion, such as for staff
meetings and training. Moreover, given the limited situations in which the accommodation
would be needed, the benefit of the accommodation would appear to be proportional to its cost.
Finally, the defendant had not argued that providing interpreters would pose an undue hardship.
E.
Drug and Alcohol Use
Shirley v. Precision Carparts Corp., 726 F.3d 675 (5th Cir. 2013). After overdosing on Vicodin,
the plaintiff entered an in-patient treatment program that required him to abstain from opioid use
before returning to his extrusion press operator position. After the plaintiff prematurely checked
out of the program, the employer notified him that his failure to complete it was grounds for
dismissal. The employer permitted him to reenter the program, but terminated him after he again
prematurely checked out of the program. The plaintiff argued that he was not excluded from the
definition of “qualified individual” under section 12114(a), even though he was “currently”
engaging in the illegal use of drugs for purposes of that subsection, because the decision to
terminate him was not “made on the basis of [his illegal drug] use,” but rather on the basis of his
31
failure to complete the drug treatment program. The court rejected this argument because the
requirement to complete in-patient treatment was itself based on his illegal drug use. In the
alternative, the plaintiff argued that he was exempted from the section 12114(a) exclusion under
section 12114(b)(2), because he was “participating in a supervised rehabilitation program,” and
had not engaged in illegal drug use for eleven days at the time of his termination. The court
rejected this argument because use of the section 12114(b)(2) safe harbor requires a “significant
period of recovery” and sufficient additional facts to justify a reasonable belief that drug use is
no longer a problem for the individual in question, rather than “mere entry” into a rehabilitation
program.
F.
Defenses
1.
Direct Threat
a.
Threat to Self
b.
Individualized Assessment Required
c.
Threats of Violence
No new cases added.
No new cases added.
No new cases added.
2.
Undue Hardship
EEOC v. Ford Motor Co., 29 A.D. Cas. (BNA) 1140, 2014 WL 1584674 (6th Cir. Apr. 22,
2014). Reversing summary judgment for the employer, the court found no evidence that
permitting an employee to telework as much as four days a week would cause an undue
hardship. As a result of irritable bowel syndrome, Jane Harris requested authorization to
telework on an as-needed basis as a reasonable accommodation. Ford denied the request and
proposed several alternative accommodations, which Harris declined; eventually it terminated
Harris. The court found sufficient evidence that teleworking might have been a reasonable
accommodation. It also concluded that Ford had not met its burden on summary judgment to
show that this accommodation would have caused an undue hardship. Although a reasonable
accommodation could cause some hardship to an employer, the ADA requires a higher standard
than that to justify a denial. Thus, while it would have entailed some cost to set up a home
workstation for Harris, the cost would likely have been “de minimis,” given Ford’s financial
resources and the size of its workforce. Furthermore, Ford had a written telework policy that
agreed to pay such costs for all employees approved to telecommute.
Rorrer v. City of Stow, 743 F.3d 1025 (6th Cir. 2014). The defendant’s undue “burden” defense
mirrored its argument that driving a fire apparatus under emergency lights was an essential
32
function of a firefighter. After finding that this function might not be essential and that it would
have been possible to reassign the function (as a marginal function) to another firefighter, the
appeals court concluded that there was insufficient evidence to support the district court’s grant
of summary judgment on the grounds that excusing a firefighter who developed monocular
vision from driving an emergency vehicle would cause an undue hardship.
McMillan v. New York, 711 F.3d 120 (2d Cir. 2013). Reversing summary judgment for the
employer, the court held that the record did not support a finding of undue hardship as a matter
of law regarding two possible accommodations to address the plaintiff’s disability-related
tardiness. The plaintiff, a city case manager, proposed being allowed to work past the normal 6
p.m. quitting time or being given approval to work through his lunch hour in order to “bank”
time to use when he was late arriving at the office due to the side effects of medication taken for
his schizophrenia. The defendant denied the plaintiff’s request to work past 6 p.m., stating that
he could not work without a supervisor present. The defendant contended that requiring a
supervisor to work past 6 p.m. would be an undue hardship, but the court noted that the record
did not address times when it appeared that the defendant had permitted the plaintiff to work
unsupervised. The plaintiff claimed that he often worked past 7 p.m., and it seemed that the
plaintiff worked unsupervised when he made home visits to clients. Regarding the plaintiff’s
proposal to work through lunch, the appeals court disagreed with the district court’s conclusion,
without any analysis, that this would have caused an undue hardship. The court noted the city’s
policy of permitting supervisors to approve an employee’s request to work through lunch and
concluded that such pre-approval did not seem to require significant difficulty or expense.
3.
Job-Related and Consistent with Business Necessity
EEOC v. Walgreen Co., -- F. Supp.2d --, 2014 WL 1410311 (N.D. Cal. April 11, 2014).
Denying summary judgment for the employer, the court held that factual issues exist as to
whether the employer failed to accommodate a diabetic employee who was discharged for
violating the stores “anti-grazing” policy during an alleged hypoglycemic attack. The court
stated, “Here, whether it was a business necessity to treat [plaintiff] the same as other employees
who had been fired under the anti-grazing policywhen [plaintiff] claims taking the chips was
necessitated by her medical condition is a question of fact for the jury.”
4.
Other Federal Laws
Samson v. Federal Express Corp., 746 F.3d 1196 (11th Cir. 2014). Reversing summary
judgment for the employer, the court held that the Federal Motor Carrier Safety Regulations
(FMCSRs) do not require a mechanic who will not engage in interstate driving to have a
commercial driver’s license (CDL). Therefore, Samson’s failure to pass the medical
examination (due to insulin-dependent diabetes) required to get a CDL was not a legitimate
reason to deny him the position. The Federal Highway Administration’s guidelines interpreting
the regulations clearly state that intrastate drivers of an interstate motor vehicle are not subject to
the FMCSRs except in one circumstance that was not relevant here. The defendant claimed that
test driving vehicles was an essential function of the mechanic position and that it was required
to comply with the FMCSR, but the court found that any test driving by a mechanic would not
include the interstate transport of property or passengers that triggers coverage by the FMCSRs.
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An opinion letter issued by the Chief Counsel for the Federal Motor Carrier Safety
Administration made a similar determination involving almost identical hypothetical facts.
H.
Exams and Inquiries
Owusu-Ansah v. Coca-Cola, 715 F.3d 1306 (11th Cir.), cert. denied, 134 S. Ct. 655 (2013). The
plaintiff, a customer service representative at a call center, generally worked from home but was
required to report to the center for certain meetings. During one such meeting with his
supervisor, the plaintiff raised several incidents of alleged mistreatment by his managers and
coworkers over the course of his employment and, according to his supervisor, became agitated,
banged his hand on the table, and said that someone was “going to pay for this.” Concerned that
the plaintiff had made a threatening statement (even though he was not asked for his version of
what happened in the meeting), the defendant requested that he meet with an independent
psychologist who specialized in crisis management and threat assessment. After meeting with
the plaintiff, the psychologist expressed to the defendant that there was a “strong possibility that
[plaintiff] was delusional” and recommended that he be placed on paid leave to allow for further
evaluation. The psychologist also recommended that the plaintiff undergo a psychiatric fitnessfor-duty examination. Addressing a matter of first impression, the Eleventh Circuit held that an
individual need not prove that he is “disabled” to challenge an alleged unlawful disability-related
inquiry or medical examination. However, despite finding that the plaintiff could assert a claim,
the court found that he failed to rebut the defendant’s showing that the examination was job
related and consistent with business necessity, i.e., that management had “a reasonable, objective
concern about [his] mental state, which affected job performance and potentially threatened the
safety of its other employees.” In reaching this conclusion, the court noted that although the
plaintiff generally worked from home, he had access to the call center and was required to report
there for meetings. Because the defendant had the plaintiff’s supervisor’s account of the
plaintiff’s conduct and statements at the meeting and had received observations and
recommendations from the consulting psychologist, the defendant “had sufficient objective
evidence that [the plaintiff] had a potentially dangerous mental condition.”
EEOC v. United States Steel Corp., 2013 WL 625315 (W.D. Pa. Feb. 20, 2013). EEOC
challenged the defendant’s policy, which had been negotiated with the employees’ union, of
randomly testing probationary steelworkers for drugs and alcohol, arguing that medical
examinations of employees must be job-related and consistent with business necessity (i.e., an
employer must have a reasonable belief that a particular employee may pose a direct threat
because of a medical condition). After considering the relevant legal authority and legislative
history behind the ADA’s prohibition on medical examinations or inquiries, as well as the nature
of the testing policy in the context of a busy steel factory, the court found that the defendant’s
policy of randomly testing probationary employees was job-related and consistent with business
necessity within the meaning of §12112(d)(4)(A). In reaching this conclusion, the court relied
on evidence that probationary employees work closely with molten coke that reaches a
temperature of more than 2,000 degrees Fahrenheit, and, therefore, must be alert at all times. The
court also noted that the drug and alcohol tests were practical and fair because protective gear
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worn at the plant made it impossible to otherwise determine if an employee was intoxicated
while working. Finally, the court reasoned that the defendant’s policy of randomly testing
employees for drug and alcohol abuse functioned to deter employees in safety-sensitive positions
from working under the influence.
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