Sharon 1 of
SELECTED DEVELOPMENTS
IN ADA LAW
2015-16 Case Edition
PREPARED BY
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION
OFFICE OF LEGAL COUNSEL
July 2016
SELECTED DEVELOPMENTS
IN ADA LAW
(37th edition)
CASES THROUGH March 31, 2016
Prepared by the Office of Legal Counsel
and published by the Office of Field Programs
Equal Employment Opportunity Commission
I. The Americans with Disabilities Act
A. Definition of “Disability”
1. Actual Disability
a. Anxiety /Bipolar Disorder
Jacobs v. North Carolina Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015). After the plaintiff was hired as an office assistant, she was promoted to deputy clerk, in which position she was asked to work at the front counter to provide customer service. Soon after her promotion, the plaintiff started experiencing extreme stress, nervousness, and panic attacks, which she attributed to her social anxiety disorder, and she asked to be reassigned to a position with less direct interpersonal interaction. The employer denied her request for a reasonable accommodation and then terminated her. Reversing, the Fourth Circuit held that the district court misapplied the summary judgment standard by impermissibly crediting the employer’s contested version of the facts and by failing to properly acknowledge key evidence offered by the plaintiff. In particular, in concluding that the plaintiff did not have a disability, the district court erroneously relied on the employer’s forensic psychiatrist, who had not examined the plaintiff and, instead, based his report on a review of her medical records, social media use, and employment records and on a report of a private investigator who observed the plaintiff at a new job. The district court inexplicably ignored a conflicting report by a forensic psychiatrist who had examined the plaintiff and concluded that her social anxiety disorder was a disability as defined by the ADA. On appeal, the employer argued that the plaintiff could not have been substantially limited in interacting with others because she “interact[ed] with others on a daily basis,” “routinely answered inquiries from the public at the front counter,” “socialized with her coworkers outside of work,” and engaged in social interaction on Facebook. Noting that a person does not have to “live as a hermit in order to be ‘substantially limited’ in interacting with others,” the Fourth Circuit found that the employer misunderstood “both the meaning of ‘substantially limits’ and the nature of social anxiety disorder.”
Poulsen v. Humana Ins. Co., 2016 WL 1030038 (D. Kan. Mar. 10, 2016), appeal filed (10th Cir. Apr. 8, 2016). The plaintiff, a clinical advisor RN/case management nurse, alleged that she was denied a reasonable accommodation and terminated because of her bipolar disorder. The evidence showed that, on several occasions over four years, the plaintiff had engaged in inappropriate behavior, including yelling “shut up” to a coworker who said “good morning” and to visiting nurses at a health event, yelling at her coworkers to “be quiet” and “shhh,” and telling a “graphic” story at a work conference about her trip to Las Vegas with her husband. After being counseled about these incidents, the plaintiff told her supervisor that she had not taken her Prozac for four days but did not tell him why she was taking the medication; complained that she could not do her job because her coworkers were so loud that she could not hear when she was on the telephone; and told him that she was seeing a psychiatrist and taking medication as part of a weight loss plan. Less than a month before she was terminated, the plaintiff contacted her employer’s third-party administrator to request intermittent leave but failed to provide the requested medical certification documents by the deadline. The plaintiff was terminated after mismanaging a health plan member’s case while on call. Granting the employer’s motion to dismiss, the court held that the plaintiff’s failure to offer a specific medical diagnosis or testimony from a treating physician or psychiatrist to support her claim that she has bipolar disorder was fatal to her claim that she has a mental impairment that qualifies as a disability under the ADA. Citing Felkins v. City of Lakewood, 774 F.3d 647 (10th Cir. 2014), the court stated that the Tenth Circuit had made it clear that the plaintiff had to “present sufficient evidence to prove that she had a condition . . . that substantially limited at least one of her five identified major life activities.”
Alejandro v. ST Micro Elecs., Inc., 129 F. Supp. 3d 898 (N.D. Cal. 2015). A former sales engineer, who was terminated for “job abandonment,” alleged that he was discriminated against based on his generalized anxiety disorder, bipolar disorder, and debilitating allergies, which rendered him unable to work or to contact his supervisor to tell him that he would not be in. According to the plaintiff, his impairments limit many of his activities and in extreme situations limit his ability to move or communicate. Denying the defendant’s motion for summary judgment, the court held that the plaintiff had sufficiently alleged that the combination of all three of his conditions resulted in his limitations and that he was not required to specifically identify which of his impairments substantially limit his ability to communicate or move.
b. Asthma/Respiratory Conditions
No new cases added.
c. Attention Deficit Disorder
Nadolski v. Associates in Sleep Med., Inc., 2016 WL 406324 (N.D. Ill. Feb. 3, 2016), appeal filed (7th Cir. Mar. 3, 2016). The plaintiff, who was diagnosed with mild attention deficit hyperactivity disorder (ADHD), alleged that his former employer failed to provide a reasonable accommodation and unlawfully terminated him. According to the plaintiff, his ADHD substantially limits his ability to concentrate and perform detailed tasks. The nurse who diagnosed the plaintiff submitted an affidavit stating that the plaintiff “often makes a lot of mistakes due to carelessness,” that he “has trouble sitting still,” that he has “unusual difficulty staying focused [on] boring or repetitive tasks,” and that “it is hard for him to prioritize work and chores [because] almost anything can get his mind off what he is doing and [he] is easily distracted by events around him such as noise or movement.” Granting the employer’s motion for summary judgment, the court held that the plaintiff failed to establish that his ADHD substantially limits his ability to think or concentrate, given that he was able to prepare and teach college courses in the evening and to rehearse for and perform in a play.
d. Autism
No new cases added.
e. Back/Leg/Knee Impairments
Green v. Teddie Kossof’s Salon & Day Spa, 2015 WL 5675463 (N.D. Ill. Sept. 24, 2015). The plaintiff, a massage therapist, alleged that the spa failed to reasonably accommodate her lumbar radiculopathy, a chronic condition that causes episodic back pain, and terminated her. According to the plaintiff, when her condition flares, pain radiates across her hip and down her legs and causes numbness that makes it difficult for her to walk, stand, or sit for long periods of time, or to sleep. Citing EEOC’s ADA regulations, the court held that because the plaintiff’s impairment substantially limits a major life activity when active, she meets the definition of an individual with a disability.
EEOC v. St. Joseph’s Hosp., 2015 WL 685766 (M.D. Fla. Feb. 18, 2015). EEOC alleged that the hospital unlawfully terminated a psychiatric nurse, who had started using a cane following hip replacement surgery, rather than reassigning her. Although the nurse’s doctor indicated that she had a “gait dysfunction” due to her hip surgery and obesity, EEOC argued that she had stenosis and spondylosis dating back before her surgery. Noting that “the primary object of attention in cases brought under the ADA should be on whether covered entities have complied with their obligations” and that the question of whether an individual’s impairment is a disability “should not demand extensive analysis,” the court concluded that the nurse’s “gait dysfunction” identified by her doctor was sufficient to establish that she had a disability at the time of her termination.
f. Blood Disorders
No new cases added.
g. Breast Infection
No new cases added.
h. Cancer/Abnormal Cell Growth
No new cases added.
i. Carpal Tunnel
No new cases added.
j. Depression
Gaube v. Day Kimball Hosp., 2015 WL 1347000 (D. Conn. Mar. 24, 2015). The plaintiff, a registered pharmacist, alleged that she was denied a reasonable accommodation for her depression, migraines, and insomnia, which she asserted substantially limited her ability to “get restful sleep” and concentrate. The district court held that the plaintiff failed to show that her ability to sleep or concentrate was substantially limited as compared to that of the general population. However, while careful to avoid holding that “the mere presence of the word ‘depression’ in a complaint means that a plaintiff’s brain function is substantially limited and that a disability under the ADA is plausibly alleged,” the court held that the plaintiff’s allegations – that her depression is “long-term,” that she had been prescribed medication for her depression, and that she regularly saw her physician for treatment – were sufficient to plausibly allege that she suffers from a major depressive disorder. Therefore, the court denied the employer’s motion to dismiss.
Aptaker v. Bucks Cty. Intermediate, 2015 WL 5179183 (E.D. Pa. Sept. 3, 2015). The plaintiff, a special education teacher who had been treated for several years for generalized anxiety and depression, alleged that she was denied a reasonable accommodation, criticized, and ultimately terminated after disclosing her depression to her supervisor. The defendant filed a motion for summary judgment on the grounds that the “plaintiff’s condition was a temporary, non-chronic impairment of short duration.” Denying the motion, the court held that the ADAAA “expressly rejects the practice of looking at the duration of the impairment as a criterion in determining whether it [is] substantially limiting.” The court also stated that “there is nothing in the ADA that delineates chronic from non-chronic impairments” and noted that “[t]he effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.” Relying on the plaintiff’s testimony that she lost her concentration five or six times a week for five to ten minutes, had difficulty processing and remembering new information, and slept for only four to five hours a night, the court held that a reasonable jury could conclude that the plaintiff’s ability to sleep, concentrate, and think were substantially limited as compared to most people in the general population.
k. Diabetes
Bernadotte v. New York Hosp. Med. Ctr. of Queens, 2016 WL 792399 (E.D.N.Y. Feb. 26, 2016). The plaintiff, an emergency department technician, alleged that she was terminated because of her diabetes, which causes her to have impaired vision, chronic head pain, and difficulty standing and walking for extended periods of time. Denying the defendant’s motion to dismiss, the court held that a reasonable jury could find that the plaintiff has a disability because the leg pain caused by her diabetes makes it difficult for her to stand.
Kemp v. JHM Enters., Inc., 2016 WL 859361 (D.S.C. Mar. 7, 2016). The plaintiff, the corporate director of human resources, alleged that he was denied a reasonable accommodation and terminated after experiencing a diabetic episode while traveling for his job. The court held that while the Fourth Circuit had not definitively held that Type I diabetes is a per se disability, the plaintiff had presented sufficient evidence to establish that his diabetes, which requires him to take daily injections of insulin, eat at regular intervals, and watch his diet, and renders him unable to “put words together” when he has low blood sugar, substantially limits his major life activities of speaking, communicating, and caring for himself.
l. Flu
No new cases added.
m. Hypertension
No new cases added.
n. HIV Infection
No new cases added.
o. Intellectual Disabilities
No new cases added.
p. Kidney Conditions
No new cases added.
q. Migraine Headaches
No new cases added.
r. Multiple Sclerosis
No new cases added.
s. Obesity
Morriss v. BNSF Ry. Co., 817 F.3d 1104 (8th Cir. 2016). The plaintiff alleged that the defendant unlawfully revoked its conditional offer of a machinist position following his completion of a medical questionnaire and physical examination. On the questionnaire, the plaintiff indicated that he was 5’10” tall and weighed 270 pounds, had taken appetite-suppressant medication to lose weight though not to address any health concerns, considered his overall health “good,” had once been diagnosed as “pre-diabetic” (but was not diabetic), and experienced no difficulties or limitations in his daily activities. During one physical examination, the plaintiff weighed 285 pounds and had a body mass index (BMI) of 40.9; at the other, he weighed 281 pounds and had a BMI of 40.4. Because BNSF’s policy was not to hire a new applicant for a safety-sensitive position if his BMI equaled or exceeded 40, it revoked its offer. Relying on the plaintiff’s assertions that he did not have a medical impairment and his doctor’s testimony that the plaintiff did not have any medical condition that caused or was associated with his obesity (such as diabetes, hypertension, heart disease, or sleep apnea), the district court held that the plaintiff failed to provide any evidence that his obesity was an actual disability. On appeal, the plaintiff, relying on EEOC’s interpretive guidance to its ADA regulations, argued that obesity is a physical impairment even without evidence of an underlying physiological disorder or condition if an individual’s weight is outside of “normal range” and affects one or more of the body’s systems. Disagreeing, the Eighth Circuit stated that a reading of EEOC’s interpretive guidance in its entirety supports the conclusion that obesity is not a disability unless it results from an underlying physiological condition and noted that the guidance also provides that “[o]ther conditions, such as pregnancy, that are not the result of a physiological disorder also are not impairments.” In response to the plaintiff’s argument that Congress’s goal in enacting the ADAAA was to ensure that the definition of disability is construed broadly, the court noted that Congress did not express any disagreement with judicial interpretations of the term “physical impairment” and, therefore, the ADAAA’s general goal “cannot trump” the plain language of EEOC’s regulations and interpretative guidance. Accordingly, affirming summary judgment to the employer, the court held that an individual’s weight generally is a physical characteristic that qualifies as a physical impairment only if two requirements are met: it falls outside the normal range, and it occurs as the result of a physiological disorder.
t. Post Traumatic Stress Disorder (PTSD)
Rodgers v. Gary Cmty. Sch. Corp., 2016 WL 795890 (N.D. Ind. Mar. 1, 2016). A school custodian alleged that she was harassed because of her PTSD and denied a reasonable accommodation. According to the plaintiff, her PTSD, which resulted from a sexual assault at work, substantially limits her sleeping, thinking, concentrating, interacting with people, and communicating. The court noted that although EEOC’s ADA regulations provide that PTSD “should easily be concluded” to substantially limit brain function, neither of the parties brought the regulations to the court’s attention. Keeping in mind EEOC’s regulations and the ADAAA, which was enacted to ensure broad coverage, the court analyzed whether the plaintiff was substantially limited in the major life activities she alleged. Based on the plaintiff’s testimony (e.g., her medication makes it “hard to kind of think” and concentrate; everything needs to be written down, and if she is thrown off, she “walks in circles” and has to regroup; her relationship with her husband has changed; she is “not good” with people standing behind her), the court held that there was sufficient evidence to permit a reasonable jury to find that the plaintiff has a disability.
u. Pregnancy-Related Complications
Varone v. Great Wolf Lodge of the Poconos, L.L.C., 2016 WL 1393393 (M.D. Pa. Apr. 8, 2016). A massage therapist alleged that her employer failed to reasonably accommodate her pregnancy. According to the plaintiff, because her job required her to stand for long periods of time, she experienced cramping and pain throughout her stomach and chest, which limited her ability to lift, stop, walk, turn, think, concentrate, bend, care for herself, and relate to others. Distinguishing Oliver v. Scranton Materials, Inc., 2015 WL 1003981 (M.D. Pa. Mar. 5, 2015), which granted the employer’s motion to dismiss on the grounds that the plaintiff made vague references to pregnancy-related complications, the court found that, here, the plaintiff’s allegations were sufficient to state a claim under the ADA.
Lang v. Wal-Mart Stores E., L.P., 2015 WL 898026 (D.N.H. Mar. 3, 2015). After the plaintiff, who was pregnant, pulled a muscle in her groin while unloading a truck, her doctor recommended that she not lift more than 20 pounds and requested that Wal-Mart accommodate her by assigning her to trailers that did not need to be offloaded by hand or by transferring her to a different position that did not require heavy lifting. Wal-Mart denied the plaintiff’s request on the grounds that her pregnancy was a “temporary condition.” The plaintiff alleged that Wal-Mart discriminated against her on the basis of disability by failing to provide a reasonable accommodation. The court held that, although the plaintiff attempted to circumvent the hurdle that pregnancy, alone, does not constitute a disability by arguing that the lifting restrictions suggested by her doctor constituted a “pregnancy-related impairment,” she failed to present any evidence that her lifting restrictions were “the result of a disorder or an unusual or abnormal circumstance, rather than a routine suggestion to avoid strenuous labor during pregnancy.” Thus, granting summary judgment to the employer, the court concluded that the plaintiff failed to show that she had a disability related to her pregnancy.
Oliver v. Scranton Materials, Inc., 2015 WL 1003981 (M.D. Pa. Mar. 5, 2015). The plaintiff, an account executive, alleged that she was not allowed to return to work following leave for complications after the birth of her triplets. Finding that the plaintiff did not “specify what ‘complications’ and ‘surgery’ [she] actually experienced, but only recite[d], in talismanic fashion, that some complications and surgery occurred,” the court held that it could not engage in the necessary individualized assessment to determine whether she could state a claim under the ADA.
v. Stroke
No new cases added.
w. Stuttering
No new cases added.
x. Vision Impairments
Cooper v. CLP Corp., 2015 WL 9311964 (N.D. Ala. Dec. 23, 2015), appeal filed (11th Cir. Feb. 10, 2016). The plaintiff alleged that he was subjected to a hostile work environment because of his strabismus (“lazy eye”). The court noted that although strabismus is an impairment, the plaintiff testified that he is “able to work, play sports, and participate in other life activities” and that his “only limitation is when he covers his ‘good eye.’” The court also noted that, at his deposition, the plaintiff was unable to see clearly across the table when he covered his left eye but he was not limited at all when he used both eyes. Accordingly, the court found that the plaintiff failed to show that he was substantially limited in a major life activity.
Leone v. Alliance Foods, Inc., 2015 WL 4879406 (M.D. Fla. Aug. 15, 2015). The plaintiff, a territory merchandising representative, alleged that he was terminated after missing work because of an eye injury, which resulted in a staph infection and corneal infiltration and substantially limited his ability to see, work, drive, and stand. According to the evidence, the plaintiff’s eye had improved 16 days after the injury, and he was cleared to return to work four days later. The court held that because the plaintiff’s impairment was “undisputedly short-term in duration and his vision was not totally impaired,” he failed to show that he was substantially limited in a major life activity.
y. Other impairments
Fee v. Management & Training Corp., 613 F. App’x 654 (9th Cir. 2015). Affirming the district court’s dismissal, the Ninth Circuit held that the plaintiff failed to show that her eczema substantially limits her in a major life activity in that she did not allege that her “condition prevents her skin from functioning.”
Willis v. Career Educ. Corp., 2015 WL 3859191 (N.D. Ill. June 9, 2015). The plaintiff, a financial analyst, alleged that she was terminated following her surgery to remove uterine fibroids, which prevented her from getting pregnant. The defendant argued that there was insufficient evidence of infertility because the fibroids “only reduced [the plaintiff’s] likelihood of pregnancy, rather than eliminating it altogether.” The court noted that when a condition such as cancer, or its treatment, causes infertility, the person has a disability even if the underlying condition has been cured. Accordingly, because the plaintiff’s ability to procreate was substantially limited, at least prior to her surgery, she met the ADA’s definition of disability.
Rader v. Upper Cumberland Human Res. Agency, 2016 WL 1118211 (M.D. Tenn. Mar. 22, 2016). The plaintiff, an assistant kitchen manager, alleged that he was terminated for walking off the job when he had to leave work because of his colitis. According to the plaintiff’s doctor, the plaintiff’s condition is “recurrent” and “could cause episodic (two times per month)” flare-ups. After his termination, the plaintiff was treated on five occasions for the cramping, burning, and occasional diarrhea stemming from his colitis. The gastroenterologist, who began treating the plaintiff a year later, submitted an affidavit stating that the plaintiff’s gastrointestinal condition (diverticulosis, colonic diverticula, and hemorrhoids) “as subjectively described by [him] and objectively evaluated by me does not substantially limit [the plaintiff] from major life activities.” Despite the plaintiff’s assertion that his episodic flare-ups cause “incapacitating pain,” the court noted that the plaintiff did not seek medical treatment for 10 days after he left work and, instead, took a 20-minute walk across town to have coffee with his uncle. Accordingly, while acknowledging that there was no doubt that the plaintiff experienced pain and significant inconvenience because of his condition, the court held that he failed to submit sufficient evidence to show that he was substantially limited in any major life activities.
Hubbard v. Day & Zimmermann Hawthorne Corp., 2015 WL 1281629 (D. Nev. Mar. 20, 2015). The plaintiff, who was employed as a security guard at a live munitions storage facility, alleged that she was terminated because of extreme mood swings that stemmed from her hysterectomy to treat early uterine cancer. In its motion for summary judgment, the employer argued that the plaintiff did not have a disability because her doctor only indicated that her emotional issues “could” be linked to her hysterectomy or medication. Disagreeing, the court noted that it was “absurd” that the employer seemed to be suggesting that “just because a physician is not certain as to the reason for the symptoms that a patient experiences, the symptoms themselves cannot be disabling. Science does what it can, but not all of the mysteries of the human body have been solved. Sometimes a doctor cannot determine what causes a disabling symptom, but that does not mean the symptom does not exist.” Denying the employer’s motion, the court found that the plaintiff offered evidence “that she has a physical impairment that affects major life activities, including working and the operation of her endocrine system.”
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
Neely v. Benchmark Family Servs., 2016 WL 364774 (6th Cir. Jan. 26, 2016). The appellate court noted the change made by the ADA Amendments Act to the “regarded as” analysis, explaining that “Congress liberalized the standard, redefining ‘regarded as having an impairment’ only to require that a defendant took a prohibited action based on a perceived impairment, regardless of whether the employer thought the impairment was substantially limiting.” The court added, however, that this standard cannot be met if the employer does not perceive the employee to have a medical condition: “[I]t is not enough that the employer is simply aware of a plaintiff’s symptoms; rather the plaintiff must show that the employer regarded the individual as ‘impaired’ within the meaning of the ADA.” In this case, the employer’s remarks about the plaintiff’s sleep apnea – such as to “hurry up” with his self-medication for his sleep problems so they would not be “an issue” – and a supervisor’s “rolling [his] eyes when Mr. Neely tried to explain his sleep disorder” indicated that the employer was aware of the plaintiff’s self-described sleep problems. However, this evidence did not “suggest that [the employer] regarded him as physiologically ‘impaired’ within the meaning of the ADA.” See also Hutcherson v. International Marine & Indus. Applications, 2016 WL 1444627 (S.D. Ala. Apr. 11, 2016) (ruling that an employer’s objection to an employee’s glasses interfering with proper fit of work equipment was insufficient to show that an action was taken based on a perceived impairment, the court stated that it was “not willing to make the inferential leap it would take to find that Defendant regarded Plaintiff as impaired merely because he wore glasses [as it] would lower the already low evidentiary bar for all spectacle-clad plaintiffs, effectively preventing alleged glasses-phobic defendants from ever obtaining summary judgment”).
Silk v. Board of Trs. of Moraine Valley Cmty. Coll., Dist. No. 524, 795 F.3d 698 (7th Cir. 2015). The employer argued that the plaintiff’s heart condition, which required triple bypass surgery, was “transitory and minor” because the plaintiff was released for duty approximately one week after his hospitalization. The district court had ruled: “Several cases treat these two statutory requirements in the disjunctive, but that interpretation is at odds with the statutory text and none of the cases offers a rationale for interpreting a conjunctive element as disjunctive.” The district court further ruled that it would not infer as a matter of law that the impairment was minor based merely on the time frame required to treat it. The appellate court agreed, holding that the employer failed to produce evidence that the impairment (the heart condition, not the hospitalization for treatment) had lasted less than six months, or evidence to meet the employer’s additional burden of proving that the condition was “minor.” Nevertheless, the plaintiff could not show he was “regarded as” having an impairment with respect to the decision to reassign his summer school courses because he did not prove that the decisionmaker perceived him as having an impairment at the time he would be teaching those classes. There was unrebutted evidence that, two weeks before the start of summer classes, the employer had to make a staffing decision, and the plaintiff had not yet submitted the medical release indicating when he could return.
EEOC v. Grane Healthcare Co., 2015 WL 5439052 (W.D. Pa. Sept. 15, 2015). Following a bench trial on discriminatory non-hire claims brought on behalf of a group of claimants, the court ruled that the EEOC failed to present evidence to establish “regarded as” coverage because there was insufficient evidence that a decisionmaker knew or viewed any of the individuals as having an impairment. The official who reviewed the applications testified that she only reviewed the back page of the Corporate Care Services Form to determine whether applicants were able to perform the essential functions of the job, and only reviewed the list of applicants’ medications to cross-check for applicants who had tested positive for a controlled substance. An additional decisionmaker testified that he never saw the Corporate Care Services Forms. Thus, EEOC failed to establish that any claimant was regarded as having a disability.
(2) Impairment Was “Transitory and Minor”
Rue v. Hickman’s Egg Ranch, Inc., 2016 WL 558412 (D. Ariz. Feb. 12, 2016). Granting the employer’s motion to dismiss, the court held that a broken ankle is a relatively minor impairment that is expected to heal within six months. The record indicated that the plaintiff’s ankle was healing progressively during her two months of treatment and that she no longer sought treatment after two months. Quoting pre-Amendments Act case law, the court stated that “[a] temporary injury with minimal residual effects cannot be the basis for a sustainable claim under the ADA.”
Percoco v. Lowe’s Home Ctrs., L.L.C., 2015 WL 5050171 (D. Conn. Aug. 25, 2015). The plaintiff, a human resources manager, was in a car accident and sustained traumatic injuries to her head, face, lips, tongue, teeth, neck, and chest, resulting in one week of medical leave from work. The employer fired her two weeks later, citing a performance matter involving an employee complaint that went unaddressed while she was out on medical leave. Two other employees who were not on leave at the time also failed to respond but were not terminated. Granting the employer’s motion to dismiss the plaintiff’s ADA discriminatory termination claim, the court found she could not show she was “regarded as” an individual with a disability because her actual or perceived condition as alleged was objectively transitory and minor. The court reasoned that the plaintiff failed to allege whether her injuries persisted after her one-week absence, and that while a car crash can result in major or minor injuries to the parts of the body referenced in the complaint, absent facts in addition to the one-week absence or any further description of the injuries, they were objectively minor on the face of the complaint.
Randall v. United Petroleum Transports, Inc., 131 F. Supp. 3d 566 (W.D. La. 2015). The plaintiff, a dispatcher for a tractor-trailer company, had a seizure, after which his doctor imposed a medical restriction of no driving for six months. His employer terminated him shortly thereafter, citing poor performance, and the plaintiff asserted his medical condition had motivated the discharge in violation of the ADA. Granting the employer’s motion for summary judgment, the court ruled that “regarded as” coverage could not be established because the driving restriction concededly was to last only six months, and was therefore “transitory” within the meaning of the statute. The court did not separately analyze whether it was “minor.”
Horsham v. Fresh Direct, 2015 WL 5692908 (E.D.N.Y. Sept. 28, 2015). The plaintiff, who had surgery for a work-related hernia, advised his employer after 13 days that he was able to return to work with light-duty limitations. His employer initially directed him to remain off work for six weeks, and then ultimately for three months, due to his restrictions. In the plaintiff’s ADA challenge to his placement on involuntary leave and subsequent termination, the court ruled, without separately addressing whether it was minor, that the hernia condition was transitory and therefore “regarded as” coverage could not be established.
Thomson v. Odyssey House, 2015 WL 5561209 (E.D.N.Y. Sept. 21, 2015), appeal filed (2d Cir. Oct. 22, 2015). The plaintiff worked in an unspecified position for an organization that provided counseling to inmates. She sustained an injury to a surgery site on her breast, requiring hospitalization and then several weeks of leave. On her subsequent claim that she was terminated due, in part, to perceived disability, the court held that the allegations did not assert management believed the injury to be anything except transitory and minor, and therefore, the court dismissed the ADA claim.
Willis v. Noble Envtl. Power L.L.C., 2015 WL 6460016 (N.D. Tex. Oct. 22, 2015). The plaintiff, a wind turbine technician, suffered an episode of dehydration and possible heat stroke while at work. Holding that the episode involved an impairment that was objectively both transitory and minor, the court noted that the plaintiff himself stated that the effects lasted only a few hours and required only two follow-up doctor visits, which resulted in a clean bill of health and no work restrictions or extended recuperation time. “An impairment that subsides within a few hours, requires minimal recuperation time and no continuing treatments or restrictions is clearly both transitory and minor.”
b. “Regarded as” Coverage Satisfied
West v. J.O. Stevenson, Inc., 2016 WL 740431 (E.D.N.C. Feb. 24, 2016). The court denied in part the employer’s motion to dismiss the plaintiff’s discriminatory termination claim, concluding that the plaintiff had stated a claim based on “regarded as” coverage. The plaintiff, a sales manager who had sustained a head injury, alleged he was regarded as an individual with a disability because he was meeting the employer’s legitimate expectations, the employer knew of his impairments, and he was terminated only six weeks after sustaining his injuries.
Gillis v. Dentsply, L.L.C., 116 F. Supp. 3d 433 (D. Del. 2015). The plaintiff, a quality control inspector, reported a back problem to a nurse employed by her company, resulting in a referral to an occupational health agency that prescribed medication and instructed her to return to work. The employer, however, put her on leave until she received clearance from her own doctor to return to work. The same day she obtained that clearance, she was informed of her termination, which the company stated was due to her failure to report the back injury in a timely fashion. Denying the employer’s motion to dismiss her ADA discriminatory termination claim, the court concluded that the facts alleged were sufficient to plead “regarded as” coverage. Rejecting the employer’s argument that the back condition must have been transitory and minor given that she was released within days to return to work, the court found that there was no indication that her condition had completely resolved when she was released to return to work, and the diagnosis that it was related to her sciatic nerve indicated that it could be a longer-term condition.
Puckett v. Board of Trs. of the First Baptist Church of Gainesville, Inc., 2015 WL 690104 (N.D. Ga. Feb. 18, 2015). The plaintiff, who had been employed as a maintenance worker by the defendant church for more than 15 years, was terminated. In denying the church’s motion for summary judgment on his disability discrimination claim, the court ruled that he could show he was regarded as an individual with a disability even though he was not diagnosed with schizophrenia until after his discharge. In reaching this conclusion, the court found a disputed issue of fact as to whether he was terminated because of an actual or perceived mental impairment. The court cited testimony by the plaintiff’s wife that she had told his supervisor about his mental health treatment and symptoms, and moreover, that after he was terminated, the Minister of Administration told her that the plaintiff was fired because he was not “mentally” able to perform “extra tasks” and recommended he go on disability benefits.
Kerrigan v. Board of Educ., 2015 WL 4591053 (D. Md. July 28, 2015). The plaintiff, a school custodian who was terminated following leave for an on-the-job foot injury, alleged that the injury was severe, causing considerable pain and discomfort as well as swelling, that he was unable to walk for six weeks, and that the injury in total lasted three months. Finding that the plaintiff could establish both an “actual” disability and, in the alternative, “regarded as” coverage, the court denied the employer’s motion to dismiss the plaintiff’s ADA discriminatory termination claim. While the three-month duration of the injury rendered it transitory, the question of whether the injury was minor was a factual inquiry that could not be determined on a motion to dismiss. Since the complaint alleged the employer terminated the plaintiff because of his injury-related absence, it therefore alleged an adverse action taken because of an impairment sufficient to plead “regarded as” coverage.
Marsh v. Terra Int’l (Oklahoma), Inc., 122 F. Supp. 3d 1267 (N.D. Okla. 2015). The plaintiff, a shipping technician with a knee injury, was terminated for unacceptable performance. While granting the employer’s motion for summary judgment in his ADA discriminatory termination suit, the court nevertheless found as part of its threshold analysis on disability coverage that the plaintiff was “regarded as” having a disability based on the knee injury because his knee injury was a physical impairment, it was not transitory, and management was aware of and therefore “perceived” the impairment at the time of plaintiff’s termination.
Cook v. City of Philadelphia, 94 F. Supp. 3d 640 (E.D. Pa. 2015). The plaintiff, who had applied to be a police officer, sufficiently pled allegations that he was regarded as an individual with a disability under the Rehabilitation Act when his conditional offer of employment was withdrawn two days after he underwent post-offer pre-employment psychological testing. Although the city contended a rejection based on the test results did not mean the city perceived him to have a mental impairment, the court held that the allegations were sufficient for pleading purposes, and the court denied the employer’s motion to dismiss the Rehabilitation Act discrimination claim based on coverage.
Ruppen v. Bowser Auto., Inc., 2015 WL 5472925 (W.D. Pa. Sept. 16, 2015). The plaintiff, a sales manager who had a 26-year tenure with the company, was terminated after being diagnosed with an aggressive form of cancer and undergoing chemotherapy and radiation. Denying the employer’s motion to dismiss his ADA discrimination claim, the court found the allegations were more than sufficient to allege that the termination was “because of” the actual or perceived impairment. The plaintiff alleged, among other things, that during the termination conversation the owner of the company told him he looked terrible due to the results of his cancer treatment and that he would be welcome to be rehired when he got better.
Richards v. Healthcare Res. Group, Inc., 131 F. Supp. 3d 1063 (E.D. Wash. 2015). The plaintiff, who had spinal and knee injuries, nerve damage, and a variety of related limitations, alleged that she was terminated from her medical biller position in violation of the ADA based on her medical conditions. Denying the employer’s motion to dismiss, the court held that the allegations were sufficient to plead “regarded as” coverage. The plaintiff alleged that, despite having insufficient training, her job performance was improving measurably at the time of termination, and that the employer terminated her based on knowledge of her disability. The plaintiff had notified human resources that she had obtained the services of the Department of Vocational Rehab and had told a manager who had seen her walking with a limp that she had bad knees.
B. Definition of “Qualified Individual with a Disability”
1. Essential Functions
a. Employer Judgment/Job Descriptions
Stern v. St. Anthony’s Health Ctr., 788 F.3d 276 (7th Cir. 2015). Affirming summary judgment for the employer, the court held that the essential functions of a chief psychologist at an acute care facility consisted of clinical, supervisory, and administrative duties. The plaintiff was terminated after the defendant learned from his colleagues about his serious memory problems, which were perhaps attributable to dementia or Alzheimer’s disease, and a fitness-for-duty examination concluded that he was unfit. The job description, which was written by the plaintiff, and his testimony describing his job duties and the percentage of time spent performing each of these duties supported this conclusion. There was only one chief psychologist to supervise everyone else in the department, so elimination of the supervisory responsibilities would have left nobody to perform those tasks. Elimination of the clinical duties would mean the plaintiff would no longer have been functioning as a psychologist. See also summaries at § VII.B.3, at page 95, and § VII.D.2, at page 100.
b. Limited Number of Employees
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015). Reversing summary judgment for the employer, the court held there was “ample” evidence for a reasonable jury to conclude that providing customer service at the front counter was not an essential function of a deputy clerk with social anxiety disorder, particularly since there were 29 other deputy clerks potentially available to perform this job duty. All deputy clerks had the same title and job description, but only four or five of them routinely worked at the front counter; the others performed filing and recordkeeping duties, many of which did not require face-to-face interaction with the public. Generally, the most junior clerks were assigned to the front desk so they could gain knowledge about the office, but some new clerks had been permitted to start their jobs by doing filing. Upon getting the job, Jacobs was assigned to work at the counter four days a week, but she soon began experiencing extreme stress and panic attacks while working at the counter. The job description did not state that all deputy clerks must work at the front counter; fewer than 15% of the deputy clerks performed this function, and some never performed it. Many employees were available to work at the front counter given that most deputy clerks received training to perform this duty. Finally, the employer failed to produce evidence that “mastery” of the front counter was essential to successful performance of the job or that excusing Jacobs from this task would negatively impact operations. See also summaries at § VII.D.2, at page 99, and § VII.D.3, at page 101.
c. Time Spent Performing Function/Consequence(s) of Non-Performance
Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877 (10th Cir.), cert. denied, 136 S. Ct. 690 (2015). Affirming summary judgment for the employer, the court held that although the plaintiff had not driven a truck in the two and a half years prior to his leaving the company for failing to obtain DOT medical certification, he had previously driven trucks regularly (and had had the DOT certification to do so), and there existed a “constant potential” that he might need to drive again. Therefore, the court found that the ability to drive a truck and to obtain DOT medical certification to operate such a vehicle were essential functions for a facility supervisor. The court noted that the DOT’s regulation of the number of hours a driver can operate a vehicle, the re-stocking difficulties that the employers sometimes faced, the need to find a last-minute replacement driver to meet delivery requirements, and the fact that only one other employee at the facility, besides the plaintiff, was available to substitute as a driver all “increased the likelihood” that the plaintiff would need to be able to drive on occasion. The plaintiff offered no evidence that the other employee qualified to drive would be on site and available when needed if the plaintiff was excused from driving trucks. See also summary at § VII.B.1.j, at page 92.
d. Rotating Among Job Functions
No new cases added.
e. Attendance and Work Schedules
EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc). Affirming summary judgment for the employer, the court held that regular and predictable on-site job attendance was an essential function of a resale buyer who worked as an intermediary between steel and parts suppliers. It was also a prerequisite to performing other essential functions. The court concluded that “regularly attending work on-site is essential to most jobs, especially the interactive ones.” An employee with irritable bowel syndrome asked to telework for up to four days per week on an ad hoc schedule, but her job required teamwork, meetings with suppliers and stampers, and on-site availability to participate in face-to-face interactions. The company required resale buyers to work in the same building as stampers, supporting the employer’s judgment that working in close proximity was essential. The court rejected the employee’s unsupported testimony that she could perform her job functions from home, reasoning that an employee’s personal viewpoint and experience, alone, are not sufficient to determine what is an essential function. While the employee stated she used conference call capabilities, rather than face-to-face meetings, to interact with colleagues and clients, the court noted that she did not indicate whether such methods of communication were effective. The court did not find persuasive the EEOC’s argument that changes in technology made it easier to telework, because this general statement did not include evidence of specific technology that would permit this “highly interactive job” to be effectively performed from home. Furthermore, the employee conceded that she could not perform four out of ten primary duties from home. Finally, although the company permitted other resale buyers to telecommute, it did so only for one set day per week and with the employee’s agreement to come to the worksite if needed. See also summary at § VII.D.6, at page 105.
Doak v. Department of Homeland Sec., 798 F.3d 1096 (D.C. Cir. 2015), pet. for cert. filed (U.S. Jan. 29, 2016). In this Rehabilitation Act case affirming summary judgment for the employer, the court held that in-person attendance was an essential function of a Coast Guard management analyst. A car accident caused head trauma that exacerbated Doak’s depression and resulted in other ailments, including migraines and hyperthyroidism. These illnesses and the side effects from medications caused Doak to miss a significant amount of work and have difficulty getting to work on time during the year after the accident. She asked for and received leave; ultimately, she requested several accommodations, including allowing her work day to begin at 11 a.m. because of difficulty getting up in the morning, optional weekend hours to make up missed time, and the ability to telework as needed. The court upheld the agency’s decision to deny these accommodations because they would have prevented Doak from performing the essential function of being present in the office to participate in interactive, on-site meetings during normal business hours and on a regular basis. Doak’s need for leave, late arrival, or telework would not be on a set schedule, and the nature of her work required her regular presence. The agency provided “substantial” evidence showing the necessity of daily interaction with project, contracting, and resource staff. In addition, some files could not easily be reviewed remotely, and the pace of work could sometimes be quite fast, necessitating on-site presence. Prior to the accident, when Doak arrived at 8:15 a.m., she was the last staff person to arrive; starting at 11 a.m. would have made it much more difficult to have “spontaneous meetings” that were frequently required in which all participants needed to simultaneously review the same documents. While Doak made a conclusory statement that she could do her job with the 11 a.m. arrival, she provided no evidence to support that claim, and her deposition testimony acknowledged that her job involved interactive meetings on a regular basis. She also declined the agency’s offer to move her to a different cubicle as an accommodation because it would have “largely reduced” her project interactions. See also summary at § VII.D.3, at page 103.
f. Mandatory Overtime
No new cases added.
g. Public Safety
No new cases added.
h. Ability to Handle Stress
Mayo v. PCC Structurals, Inc., 795 F.3d 941 (9th Cir. 2015). Affirming summary judgment for the employer, the court held that under Oregon’s disability law (modeled after the ADA and therefore interpreted consistently with the ADA) an essential function of a welder, and almost every job, is the ability to appropriately handle stress and interact with others. Because the plaintiff, who had major depressive disorder, had threatened to kill his supervisor and other coworkers on at least five occasions, he was unable to perform this essential function and therefore was not qualified, even if the threats stemmed from his disability. Coworkers reported to management several threats made by the plaintiff. When interviewed by a human resources manager, Mayo said he could not guarantee he would not carry out his threats, and the company immediately suspended him, barred him from the property, and notified the police. When the police investigated, Mayo admitted making the threats, and said he owned several guns but would not take action that evening. He agreed to be hospitalized that evening and took two months of medical leave, at the end of which he was cleared by his psychologist to return to work. The company terminated him. The court noted that while an employee might be qualified despite adverse reactions to stress, that was not the case when stress had led to multiple threats to kill coworkers in “chilling detail.” A contrary holding would place employers in an “impossible situation.” The court rejected Mayo’s argument that prohibiting violent threats is not fundamental to the work of a welder; to the contrary, compliance with such a conduct standard is an essential function of almost all jobs. The court also rejected the plaintiff’s argument that the employer failed to do an individualized direct threat analysis; because of his inability to perform an essential function of his job, he was not qualified, and thus termination was appropriate. Finally, the court rejected Mayo’s argument that he would have been qualified if given a new supervisor as a reasonable accommodation, noting that Mayo did not dispute that he might have made new threats if he had returned to work and faced similarly stressful situations. Therefore, giving Mayo a new supervisor would only have removed one stressor “and possibly added another name to the hit list.”
i. Interacting with Others
Walz v. Ameriprise Fin., Inc., 779 F.3d 842 (8th Cir. 2015). The ability to work well with others was an essential function for a process analyst. Walz testified about the importance of working well with others and explained that respect, teamwork, and communication skills were also needed. Walz also noted she was recruited for her position because of her skills in managing interpersonal relationships. Walz admitted that her disability, bipolar affective disorder, caused serious behavioral problems that were disruptive, including being rude and insubordinate towards her supervisor, disparaging coworkers, sending nonsensical e-mails, and becoming excited and easily agitated. See also summaries at § VII.D.1, at page 99, and § VII.D.4, at page 104.
Osborne v. Baxter Healthcare Corp., 798 F.3d 1260 (10th Cir. 2015). Reversing summary judgment for the employer, the court held there were genuine issues of material fact whether the plaintiff, who is deaf, could perform the essential function of verbal communication. At both of her interviews, Osborne made clear she was deaf and primarily communicated through lip reading. She received a conditional offer of employment to work as a plasma center technician, but before she started working, the human resources department decided she could not safely monitor the donor area because she could not hear the alarms on the machines used to extract blood or monitor donors in case of adverse reactions. The defendant’s expert testified Osborne could not communicate effectively, but the expert did not meet the plaintiff or personally test her abilities; he also apparently never visited the workplace, nor did he have any particular familiarity with its daily operations. The defendant also argued that Osborne’s ability to read lips might be impaired when a donor was having an adverse reaction, but the court noted that even if true, that situation would not have prevented Osborne from giving orders or instructions. There also was no evidence addressing whether in this situation hearing staff might also have had trouble understanding a patient. See also summaries at § VII.D.3, at page 103, and § VII.G.2, at page 112.
j. Driving and Travel
Minnihan v. Mediacom Commc’ns Corp., 779 F.3d 803 (8th Cir. 2015). Driving was an essential function of a technical operations supervisor who was required each quarter to do a prescribed number of quality inspections at customers’ homes to ensure the adequacy of the work done by the technicians he supervised. In addition, a supervisor was required to go into the field to follow-up on customer complaints, deliver equipment to technicians, and perform unannounced safety checks on technicians. All other supervisors drove themselves to customer homes to perform the quality inspections, as did the plaintiff before he developed a seizure disorder that resulted in a 6-month driving restriction each time he had a seizure. The plaintiff had three seizures over an 18-month period. Although neither party established how much time the plaintiff had actually spent driving before his disability precluded it, the plaintiff testified he had spent at least 50% of his working hours in the field, and the court concluded that the evidence was clear that driving facilitated the plaintiff’s ability to perform field work. Many of the duties required of a supervisor, including the quality control inspections and following up on customer complaints, required field work that, in turn, required the ability to drive. The court discounted the plaintiff’s testimony that it was “rare” that he had to leave the office to complete his duties; of greater weight was the “general experience and expectations” of all employees in the supervisor position. The job description stated that a supervisor must have a valid driver’s license and that “good driving” was required for the position. As a result of the driving restriction, other employees had to perform field work for Minnihan or had to drive him to an off-site location. Finally, the court disagreed with the plaintiff’s argument that driving was not an essential function since the company had accommodated his inability to drive, off and on, for a total of ten months. Noting that the company had told the plaintiff within the first five months of his driving restriction that it could not permanently accommodate his inability to drive, the court stated that a company does not concede that a function is marginal merely by agreeing to temporarily accommodate it nor does not such temporary removal of a function signal that permanent removal would not be onerous. To find otherwise would punish employers that choose to go beyond what the ADA requires and discourage employers from helping employees by taking such action. See also summaries at § VII.D.2, at page 100, and § VII.D.3, at page 102.
Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877 (10th Cir.), cert. denied, 136 S. Ct. 690 (2015). Affirming summary judgment for the employer, the court held that the ability to drive a commercial vehicle and obtain DOT medical certification required to drive such vehicles were essential functions for a facility supervisor, and thus the plaintiff’s failure to obtain DOT medical certification rendered him unqualified. The written job description required a supervisor to manage the company’s fleet of trucks, which the plaintiff’s supervisor explained meant that supervisors might be required to drive trucks to facilitate repairs, fueling, and loading and unloading of goods. While driving was not required on a daily basis, a supervisor needed to be able to step in to prevent delivery disruptions if drivers were unavailable. The employer needed the flexibility to assign a supervisor to drive; for example, the company could not predict when DOT rules regarding the hours a driver was permitted to operate a vehicle might require a supervisor to relieve a driver. Although the job description did not explicitly require that a supervisor drive trucks, it did require that a supervisor meet DOT requirements – including obtaining medical certification – and have an excellent driving record. Evidence also showed that all facility supervisors were required to have DOT medical certification and that other defendant facilities required facility supervisors to drive. Initially, the plaintiff obtained DOT medical certification and drove trucks when necessary, but after developing heart problems and high blood pressure, he failed a routine DOT medical evaluation. A month later, still unable to pass the medical evaluation and having failed to obtain an alternative job within the company, the plaintiff signed a “voluntary resignation form,” under protest. The court found that the plaintiff failed to offer “meaningful” evidence to refute the employer’s judgment and the written job description that obtaining DOT certification was an essential function that made it possible to perform the essential function of driving a commercial vehicle. The EEOC’s ADA regulations specify that both an employer’s judgment and a written job description are key factors used to determine whether a function is essential. See also summary at § VII.B.1.c., at page 89.
Jarvela v. Crete Carrier Corp., 776 F.3d 822 (11th Cir. 2015). Affirming summary judgment for the employer, the court held that a commercial motor vehicle driver who was fired one week after receiving a clinical diagnosis of alcohol dependence failed to meet “an essential function” of the job requiring that a driver not have a current clinical diagnosis of alcoholism under U.S. Department of Transportation (DOT) regulations. The written job description stated that a driver must meet DOT regulations, which included not having a current clinical diagnosis of alcoholism. Furthermore, EEOC regulations (29 C.F.R. § 1630.16(b)(5)) specifically permit employers to comply with the DOT regulations. Jarvela had taken FMLA leave to obtain 30 days of intensive outpatient treatment for his alcohol addiction. Although the rehabilitation program and the employer’s doctor released Jarvela to return to work, both noted his “chronic” alcoholism and need for on-going treatment. While the court declined to address how much time would have to elapse before a diagnosis of alcoholism would no longer be considered “current,” it held that a diagnosis of alcoholism received seven days prior to termination constituted a current condition under the DOT regulations, and as such it made Jarvela unqualified for his driver position.
k. Modified Positions
No new cases added.
l. Question for Jury/Factual Issue
EEOC v. AutoZone, Inc., 809 F.3d 916 (7th Cir. 2016). Affirming the denial of the EEOC’s motion for a new trial, the court held there was sufficient evidence to uphold a jury’s finding that heavy lifting was an essential function of a Parts Sales Manager. After a serious shoulder injury, an employee could no longer lift over 15 pounds with her right arm. The written job description stated that a PSM must constantly carry items up to 50 pounds, though most items would be in the 10- to 20-pound range. Former employees in the position testified that they regularly had to lift many items weighing substantially more than 15 pounds, including once a week when they had to help unload delivery trucks to re-stock the shelves. The court rejected comparing the job duties of a PSM to a part-time worker in a different position who had one paralyzed arm. Unlike a PSM, the part-time worker was never the only employee in the store; also unlike the employee in question, this worker could participate in unloading trucks, and he could lift heavy items with one arm. The appeals court also disagreed with the EEOC’s argument that the district court’s rejection of a jury instruction on a “team approach” to performing essential functions confused the jury. First, the instruction was not required merely because the employee handbook promoted cooperation and teamwork amongst employees. Furthermore, an employee asking a coworker for help does not signify that an employer has adopted a team approach to performing job duties; there was no evidence that it was a routine practice for employees to share or substitute job duties.
Shell v. Smith, 789 F.3d 715 (7th Cir. 2015). Vacating the district court decision, the appeals court remanded the case for trial because factual issues existed whether the ability to drive a city bus was an essential function of Mechanic’s Helper. The job description adopted in 1992 stated that a person in this position “may occasionally drive and deliver buses to various field locations.” Because of vision and hearing impairments, the plaintiff did not have a commercial driver’s license (CDL). The city knew that when it hired him, and for the 12 years of his employment, he never drove a bus. The new general manager, one day after beginning his job and based only on a review of the job description, told the plaintiff that his employment would be terminated if he did not obtain a CDL; the plaintiff was soon fired. The court determined that no other job function listed in the position description required a CDL. The court noted that it was difficult to see how driving could be deemed an essential function at the summary judgment stage when no evidence was offered that the plaintiff’s inability to perform this function for 12 years adversely impacted transit services or in any way created a burden on the employer. The city offered no evidence of how many employees, other than the plaintiff, were able to drive buses, nor the number of times and reasons why a driver or mechanic might wish for a Mechanic’s Helper to drive a bus. The fact that the person who replaced the plaintiff had a CDL did not indicate that driving a bus was an essential function of the position because there was no evidence whether the replacement employee actually ever drove a bus and, if so, how often and whether it was necessary for him to do so. The new general manager had no experience managing a transportation department and did not review the plaintiff’s performance or the past practices of the unit. Finally, while the court acknowledged that an employer that chooses to reassign an essential function may later choose to reinstate that function, genuine issues of material fact precluded determining whether that was the situation here.
2. Statements Made in Benefits Proceedings
No new cases added.
a. Plaintiff Still May Be a Qualified Individual with a Disability
No new cases added.
b. Plaintiff Is Not a Qualified Individual with a Disability
No new cases added.
3. Miscellaneous
Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586 (5th Cir. 2016). Reversing summary judgment for a construction company, the court held that genuine issues of material fact existed whether the plaintiff could perform the essential functions of driving and climbing a ladder, as well as comply with a federal mining regulation that prohibits persons under the influence of narcotics from working near a mine. The plaintiff passed the company’s post-offer medical examination, but the defendant revoked a job offer for a field engineer position after learning the plaintiff had a rotator cuff impairment that prevented him from lifting his right arm above the shoulder. One dispute was whether the plaintiff was able to drive despite having used a prescription opioid pain reliever. The court assumed that driving was an essential function; the defendant’s unwritten policy stated that employees taking narcotics were not permitted to operate company vehicles. The court found disputed evidence whether the plaintiff would have been taking the drug when he began work since it was prescribed “as needed”; the plaintiff claimed he had stopped using the drug, and his doctor said he was being weaned off of it. However, evidence also showed that the plaintiff had an extensive history of using the narcotic, and he used it after the job offer was rescinded. These same disputed facts made it unclear whether the plaintiff would have been under the influence of narcotics while working and thus in violation of the federal regulation. Finally, there was conflicting evidence whether the plaintiff could climb a ladder – which he conceded to be an essential function – with reasonable accommodation. The plaintiff’s doctor stated that as long as the plaintiff could use either arm, he could climb a ladder, and the plaintiff submitted a video to the defendant demonstrating his ability to do so, though he conceded that the video showed him raising his arm above his shoulder in violation of his doctor’s orders. The court chastised the defendant for making a quick decision to rescind the job offer rather than conducting a thorough investigation to determine if the plaintiff was able to climb the ladder, including asking his doctor for more information or asking the plaintiff to demonstrate an ability to climb a ladder. See also summary at § VII.D.1, at page 98.
Stern v. St. Anthony’s Health Ctr., 788 F.3d 276 (7th Cir. 2015). Affirming summary judgment for the employer, the court held that the plaintiff failed to show an issue of fact whether he was qualified to perform the essential functions of a chief psychologist with or without reasonable accommodation. Regarding the plaintiff’s ability to work without reasonable accommodations, the court noted that a generally favorable performance evaluation (albeit with certain reservations) was done six months prior to his termination and before his supervisor learned of serious job problems related to memory and cognitive issues. Colleagues noted that memory and cognitive issues had become progressively worse over an 18-month period, and were particularly acute in the months before his termination. The plaintiff’s supervisor questioned the competency of his treatment of a relative (a minor) after doing the performance evaluation. The doctor hired to do a fitness-for-duty examination corroborated that the plaintiff had serious memory issues and found him unfit. The relevant issue was whether the plaintiff could perform the essential functions of his job at the time he was fired, and the previous year’s evaluation did not create an issue of fact. Nor did testimony from the plaintiff’s administrative assistant or his wife, which did not show they had the knowledge, expertise, and competence necessary to evaluate the plaintiff’s performance of his clinical and supervisory duties. As such, their testimony could not rebut the professional opinion of the doctor who conducted the fitness-for-duty examination. The plaintiff also failed to create a factual dispute on his ability to perform the essential functions with reasonable accommodations. The fitness-for-duty report opined that the plaintiff might be able to perform his job with accommodations, including relying on common strategies to compensate for memory difficulty, such as note-taking, and eliminating the essential function of supervisory duties. However, the report was, at best, speculative about the likelihood that the compensatory strategies would work and noncommittal about the plaintiff’s ability to perform clinical duties. Furthermore, elimination of an essential function (supervisory duties) was not required. The plaintiff could have sought additional medical treatment or testing after his discharge that could have provided “non-speculative, non-conclusory evidence” that a proposed accommodation would have permitted him to perform adequately all of his essential functions, but he did not do so. If the plaintiff had performed a comparable job after his termination, that also might have created a factual dispute. Alternatively, additional expert medical or vocational evaluations of his capabilities to perform the duties in question, with or without reasonable accommodation, might have created a factual issue. See also summaries at § VII.B.1.a, at page 88, and § VII.D.2, at page 100.
C. Disparate Treatment
1. Generally
Gentry v. East W. Partners Club Mgt. Co., 816 F.3d 228 (4th Cir. 2016). A former executive housekeeper, who injured her foot and ankle, alleged that she was terminated because of her disability and sex and in retaliation for filing a workers’ compensation claim. The district court found the employer liable for workers’ compensation retaliation and for tortuously interfering with the plaintiff’s employment but found in its favor on all other claims. On appeal, Gentry argued that the court incorrectly instructed the jury on the causation standard for disability discrimination claims under the ADA. Affirming that the district court correctly applied a “but-for” causation standard to Gentry’s claim, the court explained that the ADA, as originally enacted, prohibited discrimination “against a qualified individual with a disability because of the disability of such individual” and that the reason the ADAAA changed the language to prohibiting discrimination “against a qualified individual on the basis of disability” was to “ensure[] that the emphasis in questions of disability discrimination is properly on the critical inquiry of whether a qualified person has been discriminated against on the basis of disability, and not unduly focused on the preliminary question of whether a particular person is a person with a disability.” The court also stated that the legislative history suggests that the language was changed to decrease the emphasis on whether a person is disabled, not to lower the causation standard.
Gillette v. Donahoe, 622 F. App’x. 178 (3d Cir. 2015). The plaintiff and six other USPS employees were told that the processing and distribution center where they worked was being closed and that they would be laid off if they did not find other positions. The plaintiff was selected for a lower-level position and later applied for a higher-level position that was filled through a noncompetitive procedure. The plaintiff contended that he was denied a promotion because USPS believed that he might require a reasonable accommodation for his musculoskeletal condition, so it re-classified the position to allow the selecting official to choose a non-disabled candidate. Affirming summary judgment for USPS, the court held that the plaintiff’s contention rested on a misunderstanding of USPS’s hiring and placement procedures and, therefore, was “insufficient to generate even an inference of causation.”
Smith v. Miami-Dade Cty., 621 F. App’x. 955 (11th Cir. 2015). The plaintiff alleged that her former employer’s refusal to hire her was based on disability and was in retaliation for her workers’ compensation claims. Noting that the plaintiff, who had a record of prior tardiness and excessive absences, acknowledged that she was ineligible for employment under the county’s facially neutral no-rehire policy, the Eleventh Circuit affirmed the district court’s conclusion that the plaintiff failed to allege claims of disparate treatment.
2. “Sole Cause” Standard in ADA Cases
Taylor v. City of Shreveport, 798 F.3d 276 (5th Cir. 2015). A class of police officers alleged that the city’s revised sick leave policy, which authorized the police department to obtain medical information from ill or injured officers, violated the ADA, the Rehabilitation Act, and state law. The court held that the plaintiffs could not bring a cause of action directly under Title I because they had failed to satisfy the ADA’s exhaustion requirement. The court further held that, to prevail on a Rehabilitation Act claim, a plaintiff must ultimately prove that the defendant discriminated against him or her “solely on the basis of disability,” and that an inquiry into an employee’s medical condition violates the Rehabilitation Act only if it is “intended to reveal or necessitates revealing a disability.” The court reasoned that asking an employee returning to work to describe the nature of his illness is not necessarily a question about whether the employee is disabled. In response to the plaintiffs’ arguments that several courts have struck down similar general diagnosis provisions in sick leave policies as violating Title I of the ADA, the court found that Title I does not contain the Rehabilitation Act’s sole causation requirement and, as a result, a medical inquiry that violates Title I will not necessarily violate the Rehabilitation Act.
3. Disability-Related Statements as Evidence of Discrimination
No new cases added.
4. Pretext
Yarberry v. Gregg Appliances, Inc., 625 F. App’x 729 (6th Cir. 2015). The plaintiff alleged that he was discriminated against based on his mental illness when he was fired after exhibiting bizarre behavior over the course of two days, which included improperly accessing store property and equipment. Because the store has a policy permitting employees who test positive for drugs or alcohol to return to work after treatment, the plaintiff argued that the employer’s reasons for terminating him for alleged misconduct were pretextual. Affirming summary judgment for the employer, the court held that although the store has a policy regarding employees who fail a drug or alcohol test, the plaintiff offered no evidence that such an employee who also committed misconduct similar to the plaintiff’s would be treated any differently than the plaintiff. The court noted that while the drug and alcohol policy offers employees who test positive a chance to seek treatment and be reinstated, the policy also states that its violation may be grounds for termination. The court further noted that the store’s companion conduct policy states that employment may be terminated “with or without cause and without following any system of discipline or warning . . . on grounds including ‘detrimental behavior’ . . . and ‘unauthorized use of employer time/property.’” Accordingly, in light of the store’s conduct policy and because the plaintiff presented no evidence that employees with drug or alcohol problems who committed similar offenses were treated differently, the court held that he failed to establish pretext.
D. Reasonable Accommodation
1. Notice of the Need for Reasonable Accommodation
Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586 (5th Cir. 2016). Reversing summary judgment for the employer, the court held that although a plaintiff usually must request an accommodation to trigger the interactive process, he does not have to do so when the employer is “unquestionably” aware of the disability and it has received a report from its own doctor recommending accommodations. The defendant’s doctor cleared the plaintiff to work if the company provided several accommodations. The court concluded that the company failed to engage in an interactive process, because it rescinded the job offer “almost immediately” after learning about Cannon’s disability, without any further investigation or even waiting for Cannon’s responses to questions from the Occupational Health Department to which the defendant had referred Cannon. See also summary at § VII.B.3, at page 95.
Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899 (8th Cir. 2015). Affirming summary judgment for the employer, the court held that a manager demoted for making a racist statement failed to request reasonable accommodation prior to the incident. During the employer’s investigation of the incident, the plaintiff claimed his medical condition contributed to his poor choice of words. The plaintiff acknowledged he never requested a formal accommodation and did not provide the employer with any relevant details about his disability prior to the incident. Even if the plaintiff’s statement that his comments were connected to a medical condition constituted a request for accommodation, that request was untimely. An employee who engages in misconduct and then learns he may be subject to disciplinary action cannot avoid punishment by informing the employer of a disability that allegedly caused the misconduct and then requesting accommodation.
Walz v. Ameriprise Fin., Inc., 779 F.3d 842 (8th Cir. 2015). Affirming summary judgment for the employer on claims for wrongful termination and failure to accommodate, the court held that the employee failed to inform her employer about her non-obvious disability or to request an accommodation. As a result of bipolar affective disorder, Walz began engaging in highly disruptive and erratic behavior. After several attempts by her supervisor to discuss her behavior and offer help, Walz requested and was granted FMLA leave by the defendant’s third-party vendor that handles all such requests. She never told her supervisor or anyone else at Ameriprise the reason for her FMLA leave. Upon returning from leave, she gave her supervisor a note from her doctor at Allina Mental Health Services that cleared her to return to work and noted she had been stabilized with medication. However, the note did not specify Walz’s condition or request any accommodations. The court rejected Walz’s argument that her disruptive behavior and use of FMLA leave, as well as the doctor’s note, put Ameriprise on notice that she had a mental illness. Nor did the court think sufficient notice was established by the supervisor’s testimony that he “surmised” from the doctor’s note that Walz had been treated for her mental health. Even if the evidence constituted notice of a disability, it did not specify any resulting limitations that would require accommodation. As a result, she was not entitled to reasonable accommodation, and without reasonable accommodation she could not show she was qualified. See also summaries at § VII.B.1.i, at page 91, and § VII.D.4, at page 104.
2. Interactive Process
Noll v. International Bus. Machs. Corp., 787 F.3d 89 (2d Cir. 2015). Affirming summary judgment for the employer, the court held that an employer has not violated the ADA by failing to explore alternative accommodations preferred by an employee if it provided the employee with a reasonable accommodation. The interactive process is not required “when the end it is designed to serve – reasonable accommodation – has already been achieved.” See also summary at § VII.D.19, at page 107.
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015). Summary judgment for the employer was inappropriate given that evidence showed a reasonable accommodation was possible and a reasonable jury could conclude that the defendant acted in bad faith by failing to engage in the interactive process after a deputy clerk requested accommodation. Jacobs, who had social anxiety disorder, began experiencing extreme stress and panic attacks a few weeks after being assigned to provide customer service at the front counter. She told her supervisor about her disability and the problems she was experiencing, and that she had previously received treatment for the condition, including medication. The supervisor suggested Jacobs resume treatment and reported this conversation to the clerk of the court. Jacobs did seek medical treatment, but about four months later she sent an e-mail to her three immediate supervisors in which she requested that, due to her disability, she be trained to fill a different role in the office and work at the front counter only one day a week rather than the current four days. The next day, Jacobs contacted one of the supervisors in person who told her that only the clerk of the court had authority to grant her request, but the clerk was on a three-week vacation. Jacobs forwarded the e-mail to the clerk and asked the supervisor if she could take accrued leave. The supervisor questioned the need for leave and then denied it, even though previous requests for leave had always been granted without asking why it was being taken. When the clerk returned to the office, she promptly fired Jacobs without discussing the request for accommodation, which Jacobs saw sitting on the clerk’s desk when she met with the clerk. Undisputed evidence showed that each of the three supervisors refused to discuss Jacobs’s request for reasonable accommodation, even though the clerk testified that they had authority to reassign her to different job duties. See also summaries at § VII.B.1.b, at page 88, and § VII.D.3, at page 101.
Stern v. St. Anthony’s Health Ctr., 788 F.3d 276 (7th Cir. 2015). Affirming summary judgment for the employer, the court held that failure to engage in the interactive process is not an independent basis for liability under the ADA; liability requires finding a reasonable accommodation that would permit an employee to perform the essential functions of the job. The plaintiff failed to provide evidence of any reasonable accommodation that would permit him to perform the essential functions of a chief psychologist at an acute care facility. See also summaries at § VII.B.1.a, at page 88, and § VII.B.3, at page 95.
Minnihan v. Mediacom Commc’ns Corp., 779 F.3d 803 (8th Cir. 2015). The court held that the employer engaged in good faith in an interactive process with the plaintiff in attempting to find a reasonable accommodation after a seizure disorder made it impossible for him to continue driving, an essential function of his job. Affirming summary judgment for the employer, the court found no evidence that the company refused to provide Minnihan with an appropriate reasonable accommodation; to the contrary, during the interactive process the company offered Minnihan the only possible viable accommodations. The plaintiff’s supervisor and Human Resources personnel suggested that he apply for non-driving jobs in another facility and told him he could use company time to learn about and apply for the available positions. The plaintiff rejected these jobs and instead asked about job openings in his current facility; he was told no open jobs were available. Next, the plaintiff requested and was granted the right to continue being excused from driving for another couple of months until his driving restriction ended. (During a 16-month period, the company excused Minnihan from driving for 10 months.) A few months later, after having another seizure that triggered another six-month driving restriction, the company offered the plaintiff a non-driving job in another facility with the same pay and benefits. The plaintiff responded that the commute to the new facility was not possible given his driving restriction, and he again inquired about non-driving jobs in his current facility. The company responded that there were no non-driving jobs with comparable pay, and provided the plaintiff with information about possible transportation options to the other facility, including information on rideshares and public transportation. It also gave Minnihan the name of another employee who could drive him to the new facility. The company rejected Minnihan’s suggestion that the company hire an employee to perform the driving functions of his job. Finally, the company said that Minnihan could apply for FMLA leave, and he was terminated when he did not apply for the leave. See also summaries at § VII.B.1.j, at page 88, and § VII.D.3, at page 102.
Minter v. District of Columbia, 809 F.3d 66 (D.C. Cir. 2015). Affirming summary judgment for the employer, the court determined that the employer’s repeated, unsuccessful attempts to obtain medical documentation showed it was engaged in the interactive process. An employee sustained a work injury that exacerbated her sarcoidosis and related arthritis. Shortly before the accident, the employee requested a reduced schedule as a reasonable accommodation. At a meeting a few months later, the employee alleged the employer said a reduced schedule was not a reasonable accommodation but also requested medical records to help make a decision. Over the next six months, the employee never provided medical documentation; she finally sent a doctor’s certificate stating she was “totally disabled” and would remain so indefinitely. The employee stated she hoped she could return to work in three months, but the employer terminated her. The court noted it was undisputed that the employer asked for medical documentation to aid in evaluating the employee’s request for accommodation, urged the employee to attend a follow-up meeting to discuss the accommodation (the employee did not attend), and then sent several e-mails over a period of months reiterating the employer’s need for medical documentation. Finally, at the time of her firing, when the employee alleged a final denial of accommodation, she was no longer qualified to work based on her doctor’s letter and the fact she had not worked in more than three months.
3. Job Restructuring, Other Alterations to the Job or Work Environment, Part-Time Work, and Modified Work Schedules
Reyazuddin v. Montgomery Cty., 789 F.3d 407 (4th Cir. 2015). In this case decided under section 504 of the Rehabilitation Act, the court reversed summary judgment for the employer because factual issues existed whether reasonable accommodation had been provided to a blind call center operator unable to use a new call center’s software. The County chose software that could operate in two modes; the mode chosen was inaccessible to an employee who is blind. The plaintiff told her employer about her concerns about the new software. When other employees were transferred to the new call center, the plaintiff was left behind. When the call center became operational, the plaintiff could no longer perform her job and was given a series of assignments, none of which required a full day’s work. The plaintiff proposed two possible accommodations that would permit her to perform her job – configuring the software to run concurrently in the mode that was accessible or creating a custom work-around. The court found no evidentiary basis for the defendant’s argument that its chosen mode to operate the software was necessary to make the call center as efficient, productive, and cost-effective as possible. Furthermore, there was evidence that other call centers functioned in the accessible mode. Similarly, the court pointed to conflicting evidence about the plaintiff’s ability to read maps and PDF documents; the defendant’s Disability Program Manager testified that the plaintiff had the ability to perform the essential functions of the job. Finally, the court concluded that reasonable accommodation does not include cobbling together “make-work” tasks that did not amount to full-time employment, even where the plaintiff retained her salary, pay grade, and benefits. A reasonable accommodation must provide a meaningful equal employment opportunity, meaning in this context an opportunity to attain the same level of performance as is available to nondisabled employees having similar skills and abilities. See also summary at § VII.G.2, at page 111.
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015). Summary judgment for the employer was inappropriate given that a factual issue existed whether a deputy clerk’s request for job restructuring to deal with her social anxiety disorder would have enabled her to perform the essential functions of her position. The disability caused Jacobs to experience extreme stress and panic attacks as a result of being assigned to provide customer service at the front counter four days a week. Jacobs asked to work only one day a week at the front counter and spend more days performing other deputy clerk duties that did not entail working with the public. The requested accommodations did not require the defendant to increase the workload of Jacobs’s coworkers; all 30 deputy clerks had the same job description, so Jacobs was merely asking for a change in one assignment. Although the request would have required a departure from the defendant’s informal practice of assigning the most junior deputy clerks to front counter duty, changing an informal seniority policy does not make an accommodation unreasonable. Finally, there was no evidence that the disability generally interfered with the ability to perform other job duties, suggesting that with the reasonable accommodation requested Jacobs would have been able to perform the essential functions of her position. See also summaries at § VII.B.1.b, at page 88, and § VII.D.2, at page 99.
Swanson v. Village of Flossmoor, 794 F.3d 820 (7th Cir. 2015). Affirming summary judgment for the employer, the court held that a police department did not have to permit a detective to do only desk work as a reasonable accommodation after either his first or second stroke. The plaintiff’s doctor sent a note requesting part-time work when the plaintiff was ready to return following his first stroke. He used two days of accrued paid medical leave each week and worked only three days. Shortly thereafter, Swanson requested that he be assigned to desk duty but that request was denied, allegedly because the department had no light duty policy. Six weeks after returning to work, Swanson had a second stroke; he never returned to work and resigned. The court rejected the plaintiff’s argument that since the personnel manual listed light duty as an option for employees with temporary disabilities, he should have been granted desk duty. The court noted that the manual states that granting light duty is solely at the discretion of an employee’s department and that this option will only be considered when an employee submits a doctor’s note that specifies the employee’s limitations so the employer may consider if light duty is appropriate. However, Swanson’s doctor specifically asked for a part-time schedule. An employer does not have to grant an employee his preferred accommodation; the defendant fulfilled its obligation to provide a reasonable accommodation by permitting Swanson to use paid leave so he could have a part-time schedule. Finally, the plaintiff was not entitled to light duty after his second stroke because in his resignation letter, disability application, and deposition testimony, he made clear that his second stroke rendered him completely unable to perform his job.
Minnihan v. Mediacom Commc’ns Corp., 779 F.3d 803 (8th Cir. 2015). Since driving was an essential function of a position as a technical operations supervisor and since state law made it illegal for the plaintiff to drive for six months following a seizure, there was no possible reasonable accommodation that would have permitted the plaintiff to drive and therefore still be considered qualified for the job. Affirming summary judgment for the employer on a wrongful termination claim, the court held that the company did not have to eliminate driving because it was an essential function. The court also noted that an employer does not have to provide an accommodation that would cause other employees to work harder and longer, which the plaintiff conceded was the result when the company temporarily relieved him of his driving functions. See also summaries at § VII.B.1.j, at page 92, and § VII.D.2, at page 100.
Osborne v. Baxter Healthcare Corp., 798 F.3d 1260 (10th Cir. 2015). Reversing summary judgment for the employer, the court held there were genuine issues of material fact whether the plaintiff, who is deaf, could perform the essential functions of a plasma center technician with two types of reasonable accommodations working together to eliminate any direct threat concerns. The defendant withdrew a conditional offer of employment after the human resources department expressed concerns that Osborne could not safely monitor the donor area because she could not (1) hear the alarms on the machines used to extract blood or (2) monitor donors in case of adverse reactions. Osborne proposed three accommodations: job restructuring to permit her to spend most of her time away from the donors; visual or vibrating alerts on the machines; and call buttons for donors. At the summary judgment stage, a plaintiff only needs to show that an accommodation is reasonable on its face by permitting her to perform the essential functions of her job; she does not have to show it would eliminate every de minimis health or safety risk suggested by an employer. The court concluded that job restructuring was not reasonable because it did not eliminate the safety concerns; Osborne would still need to monitor the machines and the donors at least some of the time. The plaintiff met her burden to show that the other two proposed accommodations were reasonable on their face. The EEOC had identified emergency notification systems as a form of reasonable accommodation; expert testimony described how health care workers with disabilities were successfully employed because of “simple technological interventions,” and Osborne provided evidence of ways to enhance the alert systems of the machines. Osborne demonstrated that call buttons would alert her to a donor experiencing an adverse reaction, and because she showed she is skilled at lip reading, she would be able to communicate effectively with a donor or notify a senior technician (as required by center rules) to assist. The court found the defendant’s argument that a donor would not know how to use a call button or forget to use it “purely speculative” and noted call buttons are common in hospitals and other medical settings. The court also rejected the argument that an unconscious donor would not be able to use a call button; losing consciousness is a very rare occurrence, and presumably, if a donor lost consciousness, he would not be able to verbally call for help either. Nor was the court persuaded that having call buttons puts the monitoring burden on donors. Technicians cannot face all donors at the same time, so whether a donor must call out for help, push a button, or both, a donor would be responsible for getting a technician’s attention. Finally, the defendant provided no evidence to support its argument that Osborne’s response would be delayed because she would have to identify who pressed a call button. A hearing technician also has to identify who called out for help, and there was no evidence that one method permits a faster response than the other. Furthermore, if a call button illuminates an individual light next to a donor, then that would permit quick identification. Thus, whether donors could master a call button system and whether call buttons would impact the ability to get prompt attention in an emergency were factual issues best left to a jury. See also summaries at § VII.B.1.i, at page 91, and § VII.G.2, at page 112.
Doak v. Department of Homeland Sec., 798 F.3d 1096 (D.C. Cir. 2015). In this Rehabilitation Act case affirming summary judgment for the employer, the court stated that changing an employee’s start time, permitting the option to work weekend hours to make up for missed work, and allowing telework were not unreasonable accommodations as a matter of law. The court noted that the Rehabilitation Act recognizes job restructuring and part-time or modified work schedules as reasonable accommodations, and the federal government’s personnel regulations permit agencies to establish compressed work schedules and permit “substantial” flexibility in establishing work hours. Nevertheless, these accommodations would not have permitted the plaintiff to perform all of her essential functions. See also summary at § VII.B.1.e, at page 90.
4. Leave
Walz v. Ameriprise Fin., Inc., 779 F.3d 842 (8th Cir. 2015). Affirming summary judgment for the employer, the court held that an employer was not required to force an employee to take leave when she failed to ask for it as a reasonable accommodation. As a result of bipolar affective disorder, Walz began engaging in highly disruptive and erratic behavior. After several attempts by her supervisor to discuss her behavior and to offer help, Walz requested and was granted FMLA leave by the defendant’s third-party vendor that handles all such requests. She never told her supervisor or anyone else at Ameriprise the reason for her FMLA leave. Upon returning from leave, she gave her supervisor a note from her doctor at Allina Mental Health Services that cleared her to return to work and stated she had been stabilized with medication. The note did not, however, specify Walz’s condition, nor did it request any accommodations. A few months after returning to work, Walz’s disruptive behavior returned. After Walz became aggressive with coworkers at a meeting, her supervisor warned her to be “more gentle.” Despite the warning, however, Walz’s behavior eventually led to her termination. The court rejected Walz’s argument that her erratic behavior, her prior FMLA leave, and the doctor’s note put Ameriprise on notice that she had a medical problem and the company should have responded by forcing her to take more leave. The court found that Walz never disclosed her disability or the resulting limitations, and she never requested accommodations when her disruptive behavior returned. Furthermore, Walz had previously requested FMLA leave, and her supervisor suggested multiple times in response to her behavioral problems that she take time off. The court declined to hold that an employer has a duty to “guess” an employee’s disability or to force the employee to take leave as a reasonable accommodation. See also summaries at § VII.B.1.i, at page 91, and § VII.D.1, at page 99.
5. Reassignment
See § VII.D.15, at page 106, for cases involving reassignment, seniority, and collective bargaining agreements.
Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422 (4th Cir. 2015). Affirming summary judgment for the employer, the court held that the school board met its reasonable accommodation obligation by reassigning an assistant principal to a less stressful school environment. The plaintiff was involved in an incident with a student that resulted in an investigation by Child Protective Services. After initially taking a temporary transfer, he went on medical leave for stress, anxiety, and high blood pressure. He returned to the original school but had a panic attack, and then took two more medical leaves of absence in quick succession, the final one lasting almost four months. Ultimately diagnosed with post-traumatic stress disorder, Adams’s psychiatrist and the school board’s psychologist recommended that he be reassigned to another school that offered a more supportive, less stressful environment. When Adams returned from medical leave, he was reassigned but later challenged the reassignment because it did not occur until four months after the accommodation was requested and it resulted in a reduction in his salary. The court rejected both claims. The request for reassignment was received in March when Adams was on medical leave; his doctor said that the placement in a new school should occur after he was “stabilized.” While still on leave, the board informed Adams about the reassignment, and he began at the new school about a week after his medical leave ended. The board chose a school it deemed to be less stressful because it had a far smaller student population, a higher staff-to-student ratio, and a sizable support staff. While there were behavioral problems with some students, the court noted that it may have been impossible to eliminate any chance of such problems. Significantly, Adams did not object to the reassignment and never requested another reassignment, despite the fact that other job openings were posted in the interim. Furthermore, Adams received “outstanding” evaluations. While there were two occasions on which students allegedly threatened Adams, he provided no evidence beyond his own statements to show that the new school was equally or more stressful than his original school. Finally, Adams initially retained the same salary, but after a couple of years, a change in the collective bargaining agreement dictated that employees at schools with fewer students have lower salaries. Adams’s salary was decreased by less than one percent, and he became ineligible for certain discretionary bonuses. The fact that a less stressful job might result in lower pay did not mean the defendant violated the ADA in making this reassignment.
Dunderdale v. United Airlines, Inc., 807 F.3d 849 (7th Cir. 2015), cert. denied, 2016 WL 1626313 (S. Ct. May 31, 2016). Affirming summary judgment for the employer, the court held that an employee failed to identify vacant positions that existed on the dates he requested reassignment. The employee was placed on long-term medical leave after he lost a reassigned position because of lack of seniority. He requested reassignment to certain positions at that time but was told no vacancies existed in those positions. Subsequently, he twice more requested reassignment during the two-year period he was on leave, but he was never reassigned. The court stated it was insufficient for the employee to provide evidence of vacancies during the two-year period; rather he needed to show that there was a vacancy at the time he requested reassignment. The employee had the obligation and means to search for vacancies, but failed to do so. See also summary at § VII.D.15., at page 106.
Curtis v. Costco Wholesale Corp., 807 F.3d 215 (7th Cir. 2015). Affirming summary judgment for the employer, the court held that the employer did not fail to provide a reassignment to an employee on FMLA leave where it was undisputed that the employee was unable to work at the time he requested the accommodation. The employee was not released by his doctor to return to work for another six months. The release required that the employee be reassigned to a different store; when a position became available six months later, the defendant gave it to the employee.
6. Working at Home or from a Remote Location
EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc). Affirming summary judgment for the employer, the court held that an employee’s request to telecommute up to four days per week was not reasonable because it would have removed at least one essential function of her job – regular and predictable on-site job attendance. A resale buyer who worked as an intermediary between steel and parts suppliers requested that she be allowed to telework up to four days per week on an ad hoc basis because of irritable bowel syndrome. The court noted that the defendant had allowed the employee to telecommute on an ad hoc basis three times, each time for a period of one to two months, but the employee had never been able to establish regular and consistent work hours, and she had failed to perform the core objectives of the job. See also summary at § VII.B.1.e, at page 89.
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
No new cases added.
14. Burdens of Proof
No new cases added.
15. Seniority Systems and Collective Bargaining Agreements
Dunderdale v. United Airlines, Inc., 807 F.3d 849 (7th Cir. 2015), cert. denied, 2016 WL 1626313 (S. Ct. May 31, 2016). Affirming summary judgment for the employer, the court held that the plaintiff was not entitled to stay in a position to which he had been reassigned for almost six years when changes to the collective bargaining agreement required him to have the most seniority to stay in the position, and he did not. The ADA does not require an employer to violate its seniority system to provide reassignment. The court rejected the plaintiff’s arguments that the facts constituted “special circumstances” that warranted making an exception pursuant to U.S. Airways, Inc. v. Barnett (see above). First, the fact that the position was not previously subject to seniority did not mean that the employer failed to maintain a consistent and uniform seniority system on which employees could rely. The company consistently used certain positions to make reassignments, and then changed the CBA to deem those positions subject to seniority. No evidence showed that this change was a pretext for disability discrimination. The decision to impose seniority requirements did not unduly affect employee expectations about relying on the seniority system. Furthermore, the company’s decision to extend the seniority system did not first require that an employee file a grievance challenging a position’s exemption from the seniority rules. Increasing reliability and consistent application of the seniority system is a legitimate business purpose. See also summary at § VII.D.5., at page 105.
16. Whether Persons Regarded as Having a Disability Are Entitled to Reasonable Accommodation
a. ADAAA
As a result of the ADA Amendments Act of 2008, individuals covered only under the “regarded as” prong of the definition of “disability” are not entitled to reasonable accommodation, as of January 1, 2009.
No new cases added.
b. Pre-ADAAA
No new cases added.
17. Persons Not Entitled to Reasonable Accommodation
No new cases added.
18. Reasonable Accommodation and Termination
No new cases added.
19. Sign Language Interpreters
Noll v. International Bus. Machs. Corp., 787 F.3d 89 (2d Cir. 2015). Affirming summary judgment for the employer, the court held that the employer met its reasonable accommodation obligation by providing immediate access to American Sign Language interpreters capable of translating intranet files. A software engineer requested that all video files stored on the corporate intranet be captioned when posted and that all audio files be posted with transcripts. The employer had over 46,000 video files and 35,000 audio files; only a small portion of the video files were captioned. In response to repeated requests for captioning, the company generally provided transcripts within five days of posting a video, but occasionally it took longer, and sometimes links to transcripts did not work. Also, while the employee could use interpreters, he found it confusing and tiring to look back and forth between a video and the interpreter. Evidence showed that while the interpreters might not be the most effective accommodation, they were nonetheless effective. The ADA does not require an employer to provide the most effective accommodation, merely an effective one. Interpretive services are not ineffective merely because they require the employee to divide his visual attention between the interpreters and the screen. Many accommodations for deaf people will tax visual attention to some degree. Also, the employee conceded that interpreters were effective for live meetings and provided no evidence that they were less visually demanding on his attention in that setting than when used to translate videos. See also summary at § VII.D.2, at page 99.
Searls v. Johns Hopkins Hosp., 2016 WL 245229 (D. Md. Jan. 21, 2016). Granting summary judgment to the plaintiff, the court held that providing a full-time ASL interpreter for a deaf nurse was a reasonable accommodation. The defendant revoked a job offer because it claimed the accommodation was unreasonable and would cause an undue hardship. The court concluded that this accommodation was reasonable because the statute includes qualified interpreters as an example of reasonable accommodation, employers commonly provide interpreters as a reasonable accommodation, and Searls provided evidence that she worked effectively with interpreters during her clinical rotations with the defendant and with the hospital where she was employed at the time of litigation. The court also rejected the defendant’s argument that an interpreter, not Searls, would perform a nurse’s essential functions of communicating and responding to alarms, noting that the performance of these functions requires more than hearing. “An interpreter, lacking the requisite medical training, could not act independently of Searls to communicate about patient care and respond to alarms.” See also summary at § VII.G.2, at page 112.
E. Drug and Alcohol Use
Jarvela v. Crete Carrier Corp., 776 F.3d 822 (11th Cir. 2015). The plaintiff sought reinstatement to his commercial motor vehicle driver position after being released without restrictions from an alcohol treatment program. Because the plaintiff’s job description required him to satisfy DOT medical requirements, he met with a DOT examiner, who determined that he satisfied the requirements, including that he not have a “current clinical diagnosis of alcoholism,” and cleared him to work for six months. The employer nevertheless terminated him for having a “current clinical diagnosis of alcoholism,” based on the fact that his treatment discharge papers, issued seven days earlier, listed his diagnosis as “alcohol dependence” and described its probable duration as “chronic.” The court concluded that the DOT examiner’s decision to clear the plaintiff to work did not show that he met all DOT medical standards, because the examiner never explicitly stated that the plaintiff did not have a “current clinical diagnosis of alcoholism,” and, in any case, the seven-day-old diagnosis of chronic alcohol dependence demonstrated that the plaintiff had a “current clinical diagnosis of alcoholism” under the plain meaning of those terms.
F. Insurance and Other Benefits
1. Employer-Provided Health Insurance
No new cases added.
2. Long-Term Disability Plans
No new cases added.
G. Defenses
1. Direct Threat
a. Threat to Self
No new cases added.
b. Individualized Assessment Required
No new cases added.
c. Threats of Violence
Mayo v. PCC Structurals, Inc., 795 F.3d 941 (9th Cir. 2015). The plaintiff, a welder with major depressive disorder, took leave after he told three separate coworkers that he planned to murder company management; told the Senior Human Resources Manager that he “couldn’t guarantee that he wouldn’t” follow through with the threats; admitted to police that he had made the threats, that he had two or three people in mind, and that he owned several guns; and answered “not tonight” when asked by police whether he intended to commit the murders. Upon his return to work, the plaintiff presented a note from a doctor clearing him for work and providing the opinion that the plaintiff “was not a violent person.” The plaintiff was terminated. Affirming summary judgment for the employer, the court held that a “direct threat” analysis was not required because the termination was not based on a “potential of future violence,” but rather on his inability to perform the essential functions of “appropriately handling stress” and “interacting with others” – functions that are essential to almost every job.
d. Seizure Disorders/Loss of Consciousness
No new cases added.
e. Risk of Transmitting Disease
No new cases added.
f. Burdens of Proof
No new cases added.
g. Relationship to “Business Necessity” Defense
No new cases added.
h. Other
Michael v. City of Troy Police Dep’t, 808 F.3d 304 (6th Cir. 2015). The plaintiff, a patrol officer who had a brain tumor, was suspended after the department learned that he owned empty steroid vials with labels in foreign languages and labels that stated “for veterinary use only,” which his Chief confiscated; secretly recorded and sued his Chief in an attempt to get the steroid vials back; secretly recorded his wife during counseling sessions and family gatherings; asked the city prosecutor to charge his wife with perjury; and, according to one officer, accompanied a cocaine dealer to several drug deals. During the suspension he underwent a third brain surgery, after which the department asked for a psychiatric evaluation despite the fact that he had been cleared for work by his surgeon. He was evaluated by four separate doctors, two of which concluded that he posed a threat to safety, and two of which characterized the negative reports as flawed and reached the opposite conclusion. The plaintiff was terminated. Affirming summary judgment for the employer, the court found that the two negative reports constituted “objectively reasonable medical opinions,” and therefore justified the termination, because they were based on in-person evaluations lasting 7 hours and 90 minutes, respectively; were 11 and 7 single-spaced pages long, respectively; and discussed the plaintiff’s essential job functions. One of the reports was also based on an analysis of test data that took 9 hours to perform. The fact that the other reports may also have been objectively reasonable, the court held, was irrelevant. The court further noted that the termination was not based solely on medical opinions and was also justified by the plaintiff’s behavior.
EEOC v. Beverage Distributors Co., L.L.C., 780 F.3d 1018 (10th Cir. 2015). The plaintiff, who has significant visual impairments, was conditionally offered a night warehouse position after his previous position within the company was eliminated. The offer was rescinded when the examining doctor said that accommodations would be necessary to mitigate safety risks, and the employer determined that no accommodation was possible. The district court instructed the jury that, to establish the direct threat defense, the plaintiff must prove by a preponderance of the evidence that (a) the plaintiff’s employment in the warehouse would pose a significant risk of substantial harm to the health or safety of self or others, and (b) such risk could not have been eliminated or reduced by reasonable accommodation. Citing Jarvis v. Potter, 500 F.3d 1113, 1122 (10th Cir. 2007), the court held that the instruction constituted reversible error because it required the defendant to prove that the plaintiff’s employment would pose an actual direct threat, rather than proving that it reasonably believed that the plaintiff’s employment would pose a direct threat. The fact that the lower court instructed the jury to “consider the reasonableness” of the defendant’s belief did not cure the error, according to the court, because the jury was never told why it was supposed to consider the reasonableness of the belief.
Osborne v. Baxter Healthcare Corp., 798 F.3d 1260 (10th Cir. 2015). The employer rescinded its offer of a plasma center technician position when it determined that the plaintiff’s hearing impairment posed a safety risk, because it prevented her from hearing alarms on the plasmapheresis machines and calls of distress from plasma donors. To establish the second prong of her prima facie case – that she was qualified – the plaintiff identified two reasonable accommodations that would enable her to perform the essential functions of the position: visual or vibrating alerts for the plasmapheresis machines, and call buttons for the donors. Reversing summary judgment for the employer, the court found that the first accommodation was “feasible” and “reasonable on its face,” despite the fact that it was unclear how difficult it would be to modify the machines, because this type of consideration is relevant to the undue hardship defense rather than the plaintiff’s prima facie case. It also found that the accommodations would enable the plaintiff to perform the essential functions of the position without posing a “direct threat” to safety, because the risk identified by the employer was too remote and speculative: for the plaintiff’s hearing impairment to result in harm, a donor would need to have a significant adverse reaction, which occurs only 0.0004% of the time; the reaction would need to interfere with the donor’s ability to use the call button; the plaintiff’s back would need to be turned; the incident would need to be of the type that does not trigger an alarm of the donor’s plasmapheresis machine; and the other donors would need to be unaware of or to ignore the emergency. The court held that it unnecessary to consider whether the essential functions of the position included noticing donors who are in distress under the circumstances described above, because the plaintiff was not asking to be excused from performing a job duty.
2. Undue Hardship
Reyazuddin v. Montgomery Cty., 789 F.3d 407 (4th Cir. 2015). In this case decided under section 504 of the Rehabilitation Act, the court reversed summary judgment for the employer because factual issues existed whether reasonable accommodation to enable a blind call center operator to use a new call center’s software would cause an undue hardship. The district court incorrectly relied on an irrelevant factor – the County’s budget for reasonable accommodations – in concluding an undue hardship existed. The County had a total budget of $15,500 for reasonable accommodations, far below the estimates of $65,000 to almost $130,000 for the possible accommodations. Permitting an employer’s budgeting decisions to determine the extent of undue hardship would allow an employer to avoid liability for failure to provide an accommodation by setting a very low financial threshold of what an employer is willing to pay. The County’s overall budget of $3.73 billion and the call center’s operating budget of $4 million would be relevant factors to consider in assessing undue hardship. As for the cost estimates, the court noted that the experts chosen by the parties were qualified, and it was not for the district court to choose whose estimate was correct. The appeals court also criticized the lower court for focusing almost exclusively on the cost of the accommodation; while cost is important, it is the relative cost, along with other factors, that matters. To that end, the court said an undue hardship analysis should consider the plaintiff’s evidence about other call centers that have been able to accommodate blind employees. Also relevant could be the number of call center employees and the considerable savings the County realized from creating a centralized call center, money that could have potentially been used on providing a reasonable accommodation. Nor did the lower court acknowledge the defendant’s substantial personnel resources during the configuration and implementation of the software, which might have reduced some of the expenses required to make the software accessible. The lower court also failed to view in the light most favorable to the plaintiff evidence on the issue of the effectiveness of call centers operating with accessible technology. Finally, the defendant provided no evidence supporting its arguments that the proposed accommodations would create a negative impact on users. See also summary at § VII.D.3, at page 101.
Osborne v. Baxter Healthcare Corp., 798 F.3d 1260 (10th Cir. 2015). Reversing summary judgment for the employer, the court stated that a plaintiff did not have to show that a proposed accommodation was reasonable on its face and that it would be feasible for the employer. The employer has the burden of showing that an accommodation is not feasible or that it would cause an undue hardship. The defendant withdrew a conditional offer of employment after the human resources department expressed concerns that Osborne, who is deaf, could not perform two essential functions. She allegedly could not monitor the donor area because she could not hear the alarms on the machines used to extract blood, nor could she monitor donors in case of adverse reactions. The court found genuine issues of material fact whether two accommodations would enable the plaintiff to perform these essential functions – visual or vibrating alerts on the machines and call buttons for donors. Individuals with disabilities are not in a position to show that an accommodation is not feasible for an employer; considerations about how much alarms would cost, when they could be added in the production process, and who would install them had to be identified by the defendant with specificity to support an undue hardship claim. The fact that the defendant might have to hire a vendor to modify the machines was insufficient to show undue hardship; evidence suggested that the defendant did not even investigate the costs or what would be involved in having a vendor install the alerts. See also summaries at § VII.B.1.i, at page 91, and § VII.D.3, at page 103.
Searls v. Johns Hopkins Hosp., 2016 WL 245229 (D. Md. Jan. 21, 2016). Granting summary judgment to the plaintiff, the court held that the defendant failed to show that the cost of a full-time ASL interpreter constituted an undue hardship. The plaintiff completed two clinical rotations with the defendant while a student at Johns Hopkins School of Nursing and received a strong performance review. The School provided her with a full-time ASL interpreter for these rotations. After accepting a job offer with the defendant, Searls requested a full-time interpreter. Hospital managers concluded that the cost to hire a full-time interpreter – $120,000/year – was an undue hardship and therefore rescinded the offer. The court stated that the overall Hospital budget ($1.7 billion) and the operational budgets of the Department of Medicine ($88 million) and the particular unit where Searls would have worked ($3.4 million) were all relevant to determining if an undue hardship existed. But the defendant focused solely on the unit’s budget and resources and therefore did not explain how the cost of an interpreter, representing 0.007% of the Hospital’s budget, would cause an undue hardship. Also, relevant was the fact that Strong Memorial Hospital, where the plaintiff had worked since 2013, provided her with a full-time interpreter. The court rejected the defendant’s argument that it would have to fire two nurses to pay for an interpreter, noting that could only be the result if it budgeted zero for accommodations. If that approach were permitted, every employer could argue undue hardship by simply failing to budget any amount to pay for reasonable accommodations. The court also questioned the actual cost of an interpreter, noting that a manager had estimated that a medical interpreter would cost $40,000 to $60,000/year, and the defendant had been unable at a hearing to explain how it got to $120,000. Nor did the defendant explain how an interpreter’s salary would be equivalent to the salaries of two nurses. Finally, the court noted that even if an interpreter’s salary was twice that of a nurse, that fact alone would not constitute undue hardship because the EEOC’s interpretive appendix to the ADA regulations rejects simply comparing the cost of an accommodation with the salary of the individual with a disability. See also summary at § VII.D.19, at page 108.
3. Job-Related and Consistent with Business Necessity
No new cases added.
4. Other Federal Laws
No new cases added.
5. Employee Misconduct
Walz v. Ameriprise Fin., Inc., 779 F.3d 842 (8th Cir. 2015). The plaintiff, who had bipolar disorder, received a warning after behaving erratically by, for example, scribbling illegible notes on the whiteboard during meetings, talking very rapidly in a way that did not make sense, being excitable and easily agitated, insulting supervisors, being “manic,” and doing other things that were “disturbing” to coworkers. The plaintiff took FMLA leave and, upon her return, presented a note from a mental health services provider saying that she was “stabilizing on her medication” and was cleared to work. When the behavior resumed, however, the plaintiff was fired for misconduct. Affirming summary judgment for the employer, the court found that the plaintiff’s behavior rendered her unqualified to perform the essential function of “working well with others.” Whether a reasonable accommodation would have lessened the risk was irrelevant, the court held, because the employer was unaware of her disability and therefore had no duty to engage in the interactive process.
H. Exams and Inquiries
Wright v. Illinois Dep’t of Children & Family Servs., 798 F.3d 513 (7th Cir. 2015). A former caseworker alleged that the Department violated the ADA when it ordered her to undergo a fitness-for-duty evaluation (FFDE) and constructively discharged her when she refused. After the plaintiff provided a ward who had emotional issues with misinformation about available foster homes, the Department removed the plaintiff as the ward’s caseworker and ordered her to have no more contact with the ward. The plaintiff filed a grievance in response to her removal. At a meeting to discuss the plaintiff’s grievance, managers said that the plaintiff was “unsupervisable,” that she would not get along with any supervisor, that she would not do what she was assigned, and that her failure to follow orders once resulted in lasting injury to a child. Following the meeting, a manager wrote a letter stating that he believed that there was enough clinical data to worry about the plaintiff’s ability to work with children and that her mental health needed to be assessed. The notice ordering the plaintiff to undergo an evaluation stated that she had exhibited behavior that called into question her personal safety and that of others in the workplace. The plaintiff was charged with insubordination and suspended for refusing to be evaluated. The appeals court held that the district court correctly determined that the evidence submitted at trial was insufficient to establish that requiring the plaintiff to undergo an FFDE was consistent with business necessity. In reaching its conclusion, the court noted that while several employees testified that it was the Department’s common practice to place a caseworker ordered to undergo an evaluation on desk duty, the plaintiff continued to oversee her normal caseload for almost two months and, in fact, was assigned a new case. The court also noted that a manager admitted at trial that she thought it “somewhat contradictory to send a caseworker in to [an FFDE] and at the same time continue to assign cases to her.” She further testified that if she “sincerely believed that [the plaintiff] was a risk to children,” she would have removed her from those cases. Accordingly, the court held that the evidence presented at trial supported a finding that the Department did not believe that the plaintiff posed a safety risk to children with whom she worked and, instead, considered her competent to continue working with approximately two dozen children.
I. Confidentiality of Medical Information
No new cases added.
J. Association with an Individual with a Disability
Graziadio v. Culinary Inst. of Am., 817 F.3d 415 (2d Cir. 2016). The plaintiff, a student payroll administrator, alleged she was terminated shortly after she took medical leave to care for a son with diabetes, in violation of the ADA’s associational discrimination provision. Affirming summary judgment for the employer, the court relied on the Seventh Circuit’s decision in Larimer v. International Business Machines Corp., 370 F.3d 698, 700 (7th Cir. 2004), which outlined three theories that give rise to a claim of associational discrimination: 1) “expense,” in which an employee suffers adverse action because of his association with a disabled individual covered by the employer’s insurance, which the employer believes (rightly or wrongly) will be costly; 2) “disability by association,” in which the employer fears that the employee may contract or is genetically predisposed to develop the disability of the person with whom he is associated; and 3) “distraction,” in which the employer fears that the employee will be inattentive at work due to the disability of the disabled person. Stating that the plaintiff’s claim concerned only the “distraction” possibility, the court held that there was no evidence that the employer suspected that the plaintiff would be distracted because of her son’s disability or that she would not perform her work adequately. Rather, the court reasoned, her employer terminated her because it believed she had taken too much leave, and therefore, the plaintiff could not establish a violation of the ADA’s association provision.
Williams v. Union Underwear Co., 614 Fed. App’x 249 (6th Cir. 2015). The plaintiff alleged that his termination after 10 years of employment as an internal auditor was because of his association with his wife, who had a disease that weakened her immune system. The auditor position sometimes required long work hours, as well as travel. Affirming summary judgment for the employer on the plaintiff’s associational discrimination claim, the court ruled there was insufficient evidence from which a reasonable factfinder could conclude the termination was motivated by the plaintiff’s wife’s disease. There was no evidence that management feared it was contagious or that it would make the plaintiff inattentive at work, and the only reference to health insurance coverage was a statement made by the plaintiff himself when discussing his future at the company.
Adams v. Persona, Inc., 124 F. Supp. 3d 973 (D.S.D. 2015). The plaintiff, a plant manager whose daughter has an autoimmune disease requiring transfusion treatments every six to eight weeks, alleged he was terminated due to his association with a person with a disability. Prior to his termination, his supervisor announced in an employee meeting that the company health insurance premiums would be increasing by 22.51% due in part to expensive treatments that had been covered for an employee’s daughter. When the plaintiff’s wife asked the chairman of the company board of directors about the supervisor’s comment, the chairman stated that the company runs a report “every so often to see which employees have the highest payout of insurance benefits” and that the report indicated that the plaintiff was an employee with one of the highest amounts. Shortly following these statements, the company terminated the plaintiff, citing misconduct. Based on these statements and the timing of the termination, the court denied the employer’s motion to dismiss the associational discrimination claim.
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