ABA-LEL-EEO Mid-Winter Meeting 2017
New Orleans, LA, April 1, 2017
“Invisible Disabilities”: Recent Federal Decisions
Daniel B. Kohrman
Senior Attorney
AARP Foundation Litigation
601 E Street NW, Rm. B4-205
Washington DC 20049
202-434-2064 (p); 202-434-6424 (f)
[email protected]
Minimal notice may be required of the need for accommodation if an employer is
on notice of an employee’s impairments due to past difficulties.
Kowitz v. Trinity Health
Kowitz v. Trinity Health, 839 F.3d 742 (8th Cir. 2016)
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Roberta Kowitz sued Trinity Health under the ADA and the North Dakota Human Rights
Act. The District Court granted Trinity Health summary judgment, but the Eighth Circuit
reversed, finding a genuine fact issue whether Kowitz had requested an accommodation.
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Kowitz, a therapist in Trinity Health’s cardiopulmonary department and a lead technician
in its blood gas laboratory, had spinal stenosis. She sought and received six weeks FMLA
leave to have corrective neck surgery. A few days before her scheduled return, Kowitz’s
doctor decided she needed more leave. Kowitz requested and Trinity granted a month’s
extension. As a result, Kowitz used all the leave to which the FMLA entitled her.
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Upon returning from leave, Kowitz gave Trinity a Return to Work form, in which her
doctor outlined her physical restrictions. The form said Kowitz should be limited to eighthour shifts (as opposed to the typical twelve-hour shifts) and noted her restricted ability
to lift and move heavy objects. Trinity assigned Kowitz to eight-hour shifts, but declared
that this accommodation would not be available indefinitely.
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On November 19, 2010, Kowitz’s direct supervisor directed department employees to
provide updated copies of their basic life support/CPR certifications. After receiving
notice of this requirement, Kowitz took and passed the relevant written exam. A few days
later, Kowitz notified her supervisor that she could not take the physical portion of the
exam until her doctor cleared her to do so. She copied her supervisor’s superior and HR.
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On December 2, 2010, Kowitz’s doctor determined that she needed at least four more
months of physical therapy before she could complete the physical portion of the CPR
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exam. Kowitz immediately informed her supervisors. However, Trinity terminated her
on December 3, asserting Kowitz could not perform basic life support.
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Kowitz sued, alleging, inter alia, unlawful termination on the basis of disability. The
District Court granted summary judgment for Trinity, concluding that Kowitz was not
qualified to perform the essential functions of either of her positions. The court also ruled
that because Kowitz never requested a transfer to another position within Trinity, Trinity
had no duty to reassign her to a position not requiring basic life support certification.
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The Court of Appeals disagreed. It identified a genuine fact issue whether Kowitz sought
accommodation and thus, triggered Trinity’s duty to engage in the interactive process. It
was enough, the Court explained, for Kowitz to notify her supervisor that she was
unable to complete the physical exam in the certification process until her doctor
cleared her to do so. Trinity already was aware of Kowitz’s disability, the Court
reasoned, due to her FMLA leave for neck surgery and the data in her Return to Work
Form. These sources, a reasonable jury could find, made Trinity aware of Kowitz’
need for accommodation.
Soria v. Univision Radio Los Angeles, Inc.
Soria v. Univision Radio Los Angeles, Inc., 5 Cal. App. 5th 570, 210 Cal. Rptr. 3d 59 (Ct. App.
2016), review denied (Cal; Mar. 1, 2017)
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Sofia Soria sued Univision Radio for disability discrimination, wrongful termination
and related claims under the California Fair Employment and Housing Act (FEHA)
among other state law claims. The trial court granted summary judgment for her
employer. The Court of Appeals reversed and remanded for further proceedings,
holding that material issues of fact existed as to each of Soria’s claims. Evidence that
she could not work full time due to treatment of an asymptomatic tumor established a
triable issue on the question whether she had a covered “disability” under FEHA.
Another triable issue was whether Univision acted with discriminatory intent. In that
regard, Soria testified that she told a supervisor that she had a tumor and that the
doctors wanted to remove it and cut out part of her stomach and esophagus. This
showed Univision knew of her disability. Soria also presented evidence of pretext:
inconsistencies and contradictions in Univision’s supposed evidence of her tardiness.
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Soria worked for Univision as an on-air radio personality from 1997 until her
termination in November 2011. In 2007, Soria was diagnosed with a small tumor at
the junction of her stomach and esophagus. Testing at the time showed that it was
benign and that no treatment was necessary. In 2011, further tests revealed that
Soria’s tumor had grown. Four different doctors Soria consulted suggested she have
surgery. However, Soria acknowledged that the tumor caused no physical symptoms
that interfered with her ability to do her job. Soria had the tumor removed in April
2012, after her termination; tests showed that the tumor was not cancerous.
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Between May and November 2011, Soria missed work or arrived late nine times due
to doctor’s appointments related to her tumor. Each time, Soria notified management
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in advance and asked permission for schedule changes. Univision granted each
request. Soria’s supervisor testified that she repeatedly observed Soria arrive late to
work only minutes before her on-air time or after the show had already started. This
supervisor also stated that other station personnel complained about Soria’s tardiness
and further, that it did not improve. Univision discharged Soria on November 16.
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Univision moved for summary adjudication. It argued that Soria’s claims failed
because she did not have a disability (since her tumor did not interfere with her ability
to perform her job) and also because Univision had no knowledge of her tumor.
Further, Univision argued that even if Soria was disabled, Univision had a legitimate,
nondiscriminatory reason for terminating her employment and did not fail to
accommodate her. The trial court ruled for Univision.
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The Court of Appeals reversed. On “disability” it held that the trial court erred by
ignoring that “normal cell growth” is a “major life activity” under FEHA and also,
because factual issues existed whether Soria’s stomach tumor limited her in the major
life activity of “working.” Moreover, the Court declared that discrimination because
of the potential that an employee’s tumor could become disabling violates FEHA.
Finally, the court said that an employer is deemed to “know” of an employee’s
disability if the employees who decided to discharge her knew of the disability.
An adverse action carried out just after an employee’s disclosure/onset/notice of
an impairment/disability (temporal proximity) often leads to liability for failure
to accommodate and/or defeat of an employer’s summary judgment motion.
Marcum v. Smithfield Farmland Corp.
Marcum v. Smithfield Farmland Corp., No. CV 6: 16-180-DCR, 2016 U.S. Dist. LEXIS 157821
(E.D. Ky. Nov. 15, 2016)
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At the time of his termination, Paul Marcum had worked at Smithfield Farmland
Corporation, a ham packaging facility in Middlesboro, Kentucky, for about 30 years.
During his last few years at Smithfield, Marcum suffered from a health condition
ultimately diagnosed as “Charcot foot” that caused him to walk with a noticeable
limp. Paul Carter had been employed at Smithfield for about ten years when his wife
was diagnosed with inflammatory joint disease and osteoarthritis, requiring his care.
Smithfield approved both plaintiffs for intermittent leave under the FMLA.
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Marcum and Paul both alleged that, immediately upon return from their most recent
intermittent FMLA leave, Smithfield management “purposefully and knowingly
retaliate[d] against [them] by reassigning them to the most rigorous and labor
intensive job at the company.” They asserted that supervisors laughed as they
observed plaintiffs struggling with new duties and refused to reassign them to their
prior positions. Due to Carter’s age and Marcum’s serious health condition, plaintiffs
argued, they were unable to perform the duties to which Smithfield reassigned them
and as a result, they were eventually forced to resign.
3
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Plaintiffs also charged that Smithfield interfered with their FMLA leave rights by
requiring them to recertify their leave after each absence and subjecting them to
discriminatory harassment based on their age and perceived disabilities.
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The District Court observed that Marcum’s impairment may or may not constitute a
disability under the Kentucky Civil Rights Act (which is consistent with the ADA).
The court reasoned that since Marcum resigned soon after developing his limp, such
temporal proximity supports his claim that his alleged disability was a trigger for
his alleged constructive termination. Thus, the court concluded that dismissal of his
disability-based discrimination and failure to accommodate claims was premature.
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The court also preserved plaintiffs’ FMLA retaliation claims, but dismissed their
FMLA interference and state law retaliation claims and Carter’s age bias claim.
Pinskey v. Michaels Stores, Inc.
Pinskey v. Michaels Stores, Inc., No. 2:15-CV-0184, 2016 U.S. Dist. LEXIS 168788 (W.D. Pa.
Dec. 7, 2016)
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Joseph Pinskey contends that Michaels Stores demoted and/or terminated him from
his managerial post because of his age and disability. Michaels responds that Pinskey
voluntarily resigned from his position and/or that any adverse employment action
suffered by Pinskey was due to his deficiencies as a manager rather than illegal bias.
The Court granted in part and denied in part Michaels’ summary judgment motion.
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From 2003-2010, Pinskey managed three Pittsburgh area Michaels arts and crafts
supply stores. His 2003-2009 performance reviews reflect that he was successful and
that he typically met or exceeded expectations. He also served for a period of time as
a District Trainer because of his experience and ability.
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In 2010, Pinskey informed his direct manager that he had developed glaucoma.
Allegedly, his manager then began treating him differently. Pinskey asserted that his
manager accused him of using his glaucoma as an excuse for poor performance and
embarrassed him in front of coworkers, suggesting Pinskey could not “see things
properly.” In 2011, Michaels called into question Pinskey’s effectiveness as a
manager in a number of ways, including a poor performance review, an Associate
Engagement Study in which his Manager Effectiveness rating dropped from 23% to
12%, and written responses to a survey in which several associates challenged
Pinskey’s effectiveness. In July 2011, in response to the survey results, Pinskey’s
manager met with him and explained his continued employment with Michaels was in
jeopardy. Pinskey interpreted this as a demand for his resignation and a threat to
“make his life miserable” if he declined to resign.
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Following the July 2011 meeting, Michaels placed Pinskey on a “Performance
Improvement Plan” including an Action Plan with three objectives for him to achieve,
a written caution that failure to improve might result in disciplinary action including
termination and a “Final Written Warning” regarding his failure to correct problems
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at his store during the previous 16 months. Pinskey’s manager conducted store tours
during which he observed that Pinskey had made no progress on his three Action Plan
objectives. Based on this failure, Pinskey’s manager sent an email to an HR manager
and the regional vice president recommending Pinskey’s termination. The HR
manager disagreed and said Pinskey deserved more time to improve.
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In September 2011, Pinskey requested 12 weeks FMLA medical leave (the statutory
maximum) for depression and anxiety. Michaels approved Pinskey’s request. His
twelve weeks expired on December 1, 2011, without Pinskey being released to work
by his doctor. He remained on leave pursuant to his doctor’s orders until March 5,
2012, a period of 25 weeks. When Pinskey informed his manager on March 2 that he
would be returning to work on March 5, he learned that he had been replaced and no
other manager positions were open. Michaels offered Pinskey another open position,
told him he would have to reapply for it and said he would likely be placed in a parttime, hourly job. Pinskey responded that there were three other stores in the area
being run by temporary managers. He asked to be placed in one of them. Michaels
informed him that those positions were not available. Pinskey rejected an offer of a
part-time, hourly position. Michaels told him his last day of work would be March 7.
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Pinskey asserted discrimination claims based on his age and disability pursuant to the
ADA, ADEA and the Pennsylvania Human Relations Act.
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In denying Michaels’ Motion for Summary Judgment, the court found sufficient
plausible evidence in the record from which a reasonable jury could infer that
Michaels’ proffered reason for Pinskey’s demotion - his job performance – was a
pretext for unlawful discrimination. The court relied on the fact that when Pinskey
attempted to return to work, his supervisor and the HR manager never mentioned his
job performance. Rather, they simply informed him that there were no open
management positions in the district. Additionally, Pinskey offered evidence that
Michaels failed to follow its own policy of holding a position open while an
incumbent is on medical leave. The court held that such procedural irregularities can
be evidence of discriminatory intent, particularly when coupled with proof that
Michaels treated other employees differently with respect to the same policies.
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Finally, the court explained that it was not until Pinskey revealed that he was
suffering from glaucoma that his supervisor began to challenge his performance.
The court noted that while it is possible that Pinskey’s performance abruptly
deteriorated, a factfinder could also plausibly infer that the aberrational criticism
directed towards Pinskey following his glaucoma diagnosis stemmed from
discriminatory animus.
5
Gable v. Horton Emergency Vehicles
Gable v. Horton Emergency Vehicles, No. 2:15-CV-02688, 2017 U.S. Dist. LEXIS 3711 (S.D.
Ohio Jan. 9, 2017)
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David Gable alleged that Horton Emergency Vehicles violated the ADA and Ohio
disability discrimination law when it fired him eleven days after his hiring and two
days after he informed Horton’s HR director that he had blood cancer.
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Horton, a manufacturer of ambulances, hired Gable to be a paint manager and to
address issues in Horton’s paint shop. Gable contends that he worked diligently, that
his superiors said that they were impressed with his work and that they were happy he
had been hired. However, the day after Gable disclosed that he had cancer, just ten
days after being hired, Horton terminated him. Gable explained that he informed the
HR director about his issues because he “wanted the Company to know in case he
ever had another blood clot or started to bleed from an injury.”
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Horton claimed it fired Gable because of allegations that he told employees that “it
would be ‘[his] way or the highway.’” Gable denied making such a statement.
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Horton has a progressive discipline policy that attempts to provide employees notice
of deficiencies and an opportunity to improve. The policy allows Horton to give a
verbal warning, followed by a written warning, a final warning, and then finally, a
discharge notice. The policy provides that Horton may only bypass these procedures
under certain circumstances including serious misconduct, or anytime management
determines it is necessary, such as in the event of a major policy breach or violation
of law. None of Gable’s superiors conducted an investigation prior to firing him; nor
did they provide him with verbal or written warnings, a final warning, a suspension
pending investigation, or a chance to refute allegations against him. Only after Horton
fired Gable did its HR director take statements from three employees who allegedly
heard and felt intimidated by the “my way or the highway” comment. The court also
noted infractions involving discriminatory comments and unprofessional conduct on
the part of Gable’s superiors, none of which led to discipline or termination.
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Horton limited its motion for summary judgment to the question whether Gable could
establish a prima facie case. It did not dispute that Gable was qualified, that he
suffered an adverse employment decision, or that he was replaced. Instead, Horton
argued that Gable did not have disability and, even assuming he had one, that he was
fired without Horton’s knowledge of that fact.
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The Court held that disputes of material fact precluded summary judgment because
Horton did not follow its own disciplinary procedures and hence, a reasonable jury
could infer that the HR director, who knew of Gable’s disability, influenced his
termination. The Court also held that a reasonable jury could find that the one-day
time lag between disclosure and termination supported Gable’s claim that Horton
knew of his disability.
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Knight v. Barry Callebaut USA Serv. Co., Inc.
Knight v. Barry Callebaut USA Serv. Co., Inc., No. CV 15-6450, 2016 U.S. Dist. LEXIS 174807
(E.D. Pa. Dec. 19, 2016)
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Plaintiff Randy Knight worked for Defendant Barry Callebaut, a manufacturer of
high-quality chocolate products, from April 2013 until his discharge in April 2015.
Knight alleged that he had Crohn’s disease, for which he was hospitalized twice and
treated for bowel obstructions. Knight claimed he experienced diarrhea multiple times
each day, and that flare ups caused him to need “brief periodic breaks” (to allow him
to vomit or defecate). Knight believed that Defendant’s policy that employees must
not enter the plant with any contagious rashes, foodborne illness or medical
conditions that may lead to food contamination, prohibited him from being on the
plant floor if he was experiencing diarrhea. Knight testified that he told his HR
manager, his direct supervisor and the site manager when he vomited, and further,
that he made them aware of his overall medical condition.
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Knight was hospitalized from March 29 to April 1, and from April 22 to 24 of 2015.
On April 22, after attempting to reach his supervisor and vomiting over ten times, he
left his final shift early and was admitted to a hospital.
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Callebaut terminated Knight on April 27, 2015. His termination letter cited him for
theft of time, negligent failure do his job and not being on the plant floor for long
periods of time during work hours. Callebaut claimed its decision to terminate Knight
was unrelated to his leaving his last shift early to go to the hospital. Rather, Callebaut
argued that it fired Knight for abandonment, negligence and not being on the
production floor. Knight alleged his termination occurred because of his
actual/perceived disabilities and/or retaliation for his request for reasonable
accommodation. He also alleged that Callebaut never properly advised him of his
rights under the FMLA and discouraged him from applying for FMLA leave.
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Callebaut moved to dismiss Knight’s ADA claim for failure to state a prima facie
case or to show pretext. The company claimed that Knight fell short both of
establishing an ADA ability – because he was never diagnosed with Crohn’s disease
– and of demonstrating that the company was aware of his condition.
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In denying Defendant summary judgment, the court said Knight presented
sufficient evidence to establish a prima facie case and to create a fact issue of
pretext – because he was terminated shortly after leaving work due to illness. The
court also ruled that Knight posed a genuine issue of material fact whether he
requested reasonable accommodation in the form of additional medical leave.
7
Examples of courts finding inadequate notice to an employer of an employee’s
disability or of an employee’s request/need for reasonable accommodation.
Tennial v. United Parcel Service
Tennial v. United Parcel Service, Inc., 840 F.3d 292 (6th Cir. 2016)
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UPS demoted William Tennial, a thirty-year manager, after “service failures” during
his stint as head of UPS’ Memphis hub’s “Twilight Sort.” After placing Tennial on a
“Management Performance Improvement Plan,” UPS reassigned him to supervise a
lesser hub in Oakhaven, Tennessee. Tennial, an African-American over age 50
granted FMLA leave “for stress, depression, and anxiety,” sued the company for race,
age and disability discrimination on grounds that UPS had treated white, younger
managers without disabilities responsible for similar “service failures” more
favorably, and also, that UPS refused to provide Tennial reasonable accommodation.
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The District Court granted UPS summary judgment and the appeal court affirmed.
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The Sixth Circuit said Tennial failed to inform UPS that he had a disability, and
that “the record [wa]s unclear as to the specific nature of [his] disability.” The
appeals court assumed, for its analysis, that Tennial’s “work-related stress qualifie[d]
as a disability.” Still, “[a]lthough Tennial's supervisors were aware that he took
leave, there [wa]s no indication anywhere in the record that his supervisors knew
that this leave was for work-related stress.”
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The Court of Appeals also found lacking proof that Tennial asked UPS to
accommodate a disability. Tennial testified that he proposed to his supervisor that
they record their conversations in order to clarify what the supervisor expected of
him. But in the single exchange the two had on this subject, the supervisor objected
to being recorded and the district court found that Tennial failed to convey that he
was asking for an accommodation of a disability. The Sixth Circuit agreed that
Tennial’s “fleeting reference to ‘my ADA deal’ was insufficient to put [his
supervisor] on notice of an accommodation request.”
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“Although there is no bright-line test for determining when an employee . . . has
made [an accommodation] request, ‘at a minimum he must make it clear from the
context that [the request] is being made in order to conform with existing medical
restrictions’ [citations omitted]. . . . Tennial did not explain that the recorder would
help accommodate his disability, and the record evidence indicates that Cochran
did not understand his request as such.” The Sixth Circuit also upheld dismissal of
Tennial accommodation claim because he insisted on a particular accommodation of
his choosing, while his supervisor offered a legitimate alternative accommodation.
None of Tennial’s other claims survived appellate review.
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Ewing v. Doubletree
Ewing v. Doubletree, No. 16-4037, 2016 U.S. App. LEXIS 22177 (10th Cir. Dec. 14, 2016)
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Until 2011, Patrice Ewing had worked for several decades as a housekeeper at the
Hilton Salt Lake City Center Hotel. Ewing “allege[d] that her supervisors treated her
inappropriately during her time at the Hotel and ultimately fired her because she has a
mental impairment that makes her a ‘bit slow.’” Ewing brought ADA claims on
grounds of discriminatory termination, failure to provide reasonable accommodation
and creation of a hostile environment.
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The District Court granted Doubletree summary judgment. The Tenth Circuit
assumed that Ewing was protected under the ADA, but found “no admissible
evidence suggesting that DoubleTree knew of her mental disability.”
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Ewing “admitted during her deposition that she had never told anyone at the Hotel
about her disability,” yet asserted that “her fellow employees knew about her
disability because it was obvious she had one.”
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To show her disability was “obvious,” Ewing offered a hotel security officer’s
statement that he “knew[] immediately" she had a mental disability “when he first
met her,” and "[e]veryone at the Hilton knew she had these issues." Her sister
submitted a statement that Ewing told her that supervisors regularly “referenced” her
mental status and “verbally abused her” because of it. Ewing also submitted
testimony from her physician that she: (1) "[c]an't remember or follow detailed
instructions"; (2) has "[e]xtreme difficulty maintaining attention and concentration for
any extended period of time"; (3) is "[e]asily distracted by others"; and (4) has a
"[t]ough time with simple questions."
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Ewing first problem was a “flimsy and deficient legal analysis . . . inadequate to
preserve an issue for appeal. Specifically, she ”failed to preserve objections to the
District Court’s exclusion of the first two statements by “dedicat[ing] less than one
page to this issue in the ‘Summary of Argument’ section of her brief and then never
discuss[ing it] in the actual ‘Argument’ section.”
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The appeals court also dismissed Ewing’s doctor’s testimony to the effect that
“supervisors or the Hotel's management knew about her mental disability.” The
Tenth Circuit noted that Ewing never communicated with hotel management and in
any event, had “medical expertise that the average lay person does not possess.”
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Ewing’s condition was “not nearly as ‘obvious’ as the disabilities in other cases
that she cites for support.” The appeals court pointed to Taylor v. Principal Fin.
Grp., Inc., 93 F.3d 155, 165 (5th Cir. 1996) (stating it "is often the case" that
mental disabilities "are not open, obvious, and apparent to the employer."
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Ewing’s “inability to prove DoubleTree's knowledge of her mental disability [wa]s
fatal to all three of her [ADA] claims.” The Court also noted other flaws in each.
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Is a mental impairment serious enough to justify a “fitness for duty” exam?
Painter v. Illinois Department of Transportation: Yes!
Painter v. Illinois Department of Transportation, No. 13-3002, 2016 U.S. Dist. LEXIS 94940
(C.D. Ill. July 21, 2016)
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Deanna Sue Painter sued the State of Illinois under the ADA for subjecting her to six
allegedly unjustified fitness for duty (FFD) exams between 2011 and 2015, and for
causing her to be out of work from June 2012 to April 2014 as a result of being found
unfit for duty in the fourth of those exams in the first half of 2012. Painter worked
for two different offices in the state transportation department, from September 1,
2010 until late June 2012, and then from April 2014 forward for the state health and
human services department.
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The District Court granted the State summary judgment, finding that the FFD exams
contested by Painter were justified by business necessity.
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Painter repeatedly provoked co-workers to file complaints with management about
her behavior: talking to herself; engaging in disputes with other staff; and taking
notes on conversations of co-workers. She also sent e-mails with cryptic substance to
her supervisor at odd hours. Several times, co-workers expressed concern that Painter
might become violent or attack them; another time, a note she wrote to a co-worker
referring to death (albeit a confusing reference related to the co-worker’s remark that
a clock was “dead”) led to a report to the state police that Painter had made a threat.
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Four times, in 2011 and 2012, supervisors put Painter on administrative leave and
arranged for her to have a FFD. In the first three instances, medical staff determined
Painter to be fit for duty. In the fourth instance, however, in May and June 2012,
state medical staff determined Painter to be “psychiatrically unfit for duty as a result
of paranoid thinking (caused by either paranoid personality disorder or Delusional
Disorder) and the disruptive behavior which results from her paranoia.” The report
added “that it [wa]s not her paranoia, per se, that makes her unfit, but rather the
highly disruptive behavior that [wa]s resulting from her paranoia.” (The court ruled
two other FFD exams Painter in 2014 and 2015 irrelevant and inadmissible.)
- The court held that the State established the challenged FFD exams “were job-related
and consistent with business necessity” given that the State “had a reasonable belief
based on objective evidence that a medical condition would impair the Plaintiff's
ability to perform essential job functions or that the Plaintiff would pose a threat due
to a medical condition.” The court reasoned that the State “gathered significant .
. . information before directing” Painter to have “a mental health examination”
and that Painter failed to “challenge[] the accuracy of this information or rebut[
] statements of co-workers.” Thus, “[t]he record establishe[d] that . . . other
employees and supervisors had legitimate concerns that Plaintiff's behavior could
pose a threat.”
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Ellis v. San Francisco State University: No!
Ellis v. San Francisco State University, No. 15-cv-02273-TEH, 2016 U.S. Dist. LEXIS 106538
(N.D. Ca. Aug. 11, 2016)
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Linda Ellis served as Director of the San Francisco State University (SFSU) Museum
Studies Department for 24 years. Starting in 2011, she spent another three years as a
Museum Studies Professor and the University Museum’s Senior Curator. In 2014,
SFSU’s Labor Relations Director and others met to determine whether Professor Ellis
should be required to undertake a fitness-for duty (FFD) exam. She declined to
attend. SFSU directed her to have a FFD. She refused and instead responded to the
grounds specified for the FFD directive. The University suspended her and
rescheduled the exam. Once again, Professor Ellis refused to participate and
contested the charges against her. SFSU then terminated Professor Ellis. She sued
and both parties sought summary judgment. The District Court denied the motions.
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SFSU expressed four concerns about Dr. Ellis. First, she allegedly “engaged in
a verbal altercation” with another faculty member who she told to "shut up"
and “in a threatening manner” said “you will get yours.” Second, SFSU stated
that Dr. Ellis engaged in “unprofessional and inappropriate interactions with
staff members in [her] department.” Third, “[s]tudent feedback over the [prior]
two years reflected that Dr. Ellis did not provide timely feedback on student
theses, and that as a result, . . . other [faculty had] to intervene” to assure these
students could “graduate on time.” Finally, SFSU asserted that Dr. Ellis was
“unresponsive to student communication” and “did not receive information
[delivered to her via email] by the department [ ].”
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Dr. Ellis charged SFSU with requiring her to submit to an unlawful medical exam in
violation of the federal Rehabilitation Act and the California Fair Employment and
Housing Act (FEHA). The District Court stressed that business necessity imposes a
“quite high” standard of proof requiring an employer to show a goal “vital to the
business." SFSU fell short, the court observed, in that: “no University employee met
with Dr. Ellis”; the only chance she had to rebut SFSU’s allegations “w[as] during the
evaluation itself”; and the University did not consult a doctor whether to require a
FFD exam “prior to making its determination.” Yet the court declined to say that the
failure to follow such “best practice[s]” was unlawful. SFSU only had to cite
"significant evidence that could cause a reasonable person to inquire as to whether an
employee is still capable of performing h[er] job.”
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In denying summary judgment for SFSU, the court cited uncertainty as to: (i) what
the decisionmaker “knew [and] actually considered” in approving a FFD exam,
and thus, whether such data was “reliable enough” to create a business necessity;
and (ii) whether the FFD was “job-related,” i.e., “tailored to assess the employee's
ability to carry out the essential functions of the job.”
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No disability – insufficient evidence of substantially limiting actual impairment
AND inadequate proof of “regarded as” disability.
Contrast Jennings v. Aaon, Inc., No. 14-CV-0347-CVE-PJC, 2015 U.S. Dist. LEXIS 70312
(N.D. Okla. June 1, 2015), in which the court rejected actual and regarded as disability claims at
summary judgment, with Marcum v. Smithfield Farmland Corp., No. CV 6: 16-180-DCR, 2016
U.S. Dist. LEXIS 157821 (E.D. Ky. Nov. 15, 2016), where the court allowed ADA
discrimination and failure to accommodate claims to proceed based on both disability theories.
Jennings v. Aaon, Inc.
Jennings v. Aaon, Inc., No. 14-CV-0347-CVE-PJC, 2015 U.S. Dist. LEXIS 70312 (N.D. Okla.
June 1, 2015)
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“AAON manufactures air conditioning and heating equipment and, in October 2010,
AAON hired [Rachel] Jennings as a line engineer . . . with production responsibilities
for AAON's smallest rooftop air conditioner, and [as such] she was the engineering
department's point of contact for questions related to this product.” It was undisputed
that “a line engineer spends a substantial amount of time on the production line.”
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Jennings began to complain of breathing difficulties, in some instances related to
substances introduced into the workplace. Aaon moved her work station, temporarily
allowed her to do project-work instead of line work, and for a time placed her on
temporary total disability (TTD). However, medical visits yielded no specific
diagnosis. Aaon eventually removed Jennings from TTD, required her to return to
work, and when she did not, terminated her.
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Jennings sued under the ADA (and Oklahoma law), asserting both an actual and a
“regarded as” disability. The District Court ruled that Jennings failed to establish a
covered disability on either grounds, but in any event, that she also did not show that
she was “otherwise qualified” to perform her duties as a line manager. The court
accordingly granted summary judgment for Aaon.
-
The District Court acknowledged that Jennings had breathing difficulties at work, but
rejected her actual disability claim for lack of evidence demonstrating “any type of
identifiable respiratory problem.” The District Court noted that "the Tenth Circuit
has specifically rejected an ADA plaintiff's attempt to establish the existence of a
physical impairment only by self-diagnosis,” and concluded that Jennings’ “lay
opinion that she has a mold allergy [wa]s inadmissible and . . . an [un]acceptable
substitute for medical evidence or the testimony of a medical expert.” The court
also turned away her regarded as claim, finding her evidence “d[id] not show that
defendant viewed her as unable to work due to a mental or physical impairment
[but rather, that Aaon management was] aware of plaintiff's complaints that she
had a breathing problem and her allegations that her breathing problems were
work-related, [yet] did not believe that plaintiff had a diagnosed physical
impairment that could constitute a disability.”
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On the “qualified” issue, the District Court observed: “The most basic and important
function of most occupations is physical presence at work, and the Tenth Circuit has
recognized that [this] is almost always an essential job function, even if many of an
employee's tasks could be performed from home.” Thus, Jennings’ proposed
accommodations premised on absence from the line were inadequate to allow her to
perform her job’s essential functions. The court also weighed the vagueness of
Jennings’ alleged disability in Aaon’s favor, stating “it is unclear how [she]
expected [Aaon] to provide an accommodation without more information about her
medical condition.”
What constitutes adequate grounds for disbelief that plaintiff’s conduct was
disability-related?
DeWitt v. Southwestern Bell Telephone Co.
DeWitt v. Southwestern Bell Telephone Co., 845 F.3d 1299 (10th Cir. 2017)
-
In March 2010, Southwestern Bell Telephone Co. (SWBTC) terminated Janna
DeWitt as a customer service representative in its Wichita, Kansas call center for
hanging up on two customers in violation of the SWBTC Code of Business Conduct
and a Last Chance Agreement (LCA) related to a prior incident in which SWBTC
found DeWitt responsible for “cramming” (leaving phone service on a customer's
account, here mistakenly, after the customer cancelled the service) in violation of
company policy. DeWitt’s LCA stated that "even one incident of failing to maintain
satisfactory performance in all components of [her] job, including . . . company
policies[] and conduct may lead to further disciplinary action up to and including
dismissal.”
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DeWitt has insulin-treated diabetes, a condition of which her supervisors were aware
based on DeWitt’s prior use of FMLA leave related to that condition. SWBTC sales
managers also were sensitive to use of FMLA leave due to a conviction that it
“negatively affected” their sales performance.
-
The Court of Appeals summarized the facts at summary judgment as follows: two
months after the cramming incident, DeWitt suffered a severe drop in blood sugar
while at work. Unable to stabilize her blood sugar even after eating food and drinking
juice, she experienced lethargy, disorientation, confusion, and was “unable to
communicate with anyone.” She noticed that she was locked out of her computer and
called her First Line Supervisor, Tom Heumann, for assistance. Heumann did not
address her issues, and instead informed a Ms. Kloxin that he had been monitoring
DeWitt's calls and that she had hung up on at least two customers. Kloxin responded
by “doing a dance” and saying, “I finally got that bitch.” When told her behavior was
"not appropriate," Kloxin responded, “You don't understand. I've been chasing after
her long before, since you got here.” Later that day, Heumann and Kloxin conducted
a suspension meeting with DeWitt regarding the two dropped calls. A union steward
also attended. DeWitt said she did not remember taking the dropped calls and that
“she had been experiencing dangerously low blood sugar levels at the time of the
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calls.” After reviewing recordings of the dropped calls, DeWitt reiterated that she
“honestly [did not] remember the customer saying hello” and asked “Are you sure
this is me?” Heumann informed Ms. DeWitt that she was suspended and that a “Day
in Court” regarding this matter would be held at a later date. DeWitt provided her
blood sugar levels for the afternoon in question. A week later, SWBTC conducted a
“Day in Court” regarding the dropped calls and DeWitt's employment status. Kloxin
and DeWitt attended, among others. DeWitt was told this was a time for her to talk
about the dropped calls, to explain what happened, and to say anything she wanted
management to know regarding making a decision regarding her employment.
DeWitt stated again that she did not remember taking the calls due to a severe drop in
her blood sugar. SWBTC terminated DeWitt five days later.
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DeWitt brought ADA claims against SWBTC for disability discrimination and failure
to accommodate, and an FMLA retaliation claim as well. The District Court granted
SWBTC summary judgment and the Tenth Circuit affirmed.
-
The Court of Appeals concluded: “DeWitt's claim must stand or fall on her
argument that the dropped calls were merely a pretextual reason for SWBTC to
terminate her employment.” The Tenth Circuit rejected DeWitt’s pretext argument
that the decisionmaker – a Ms. Baskett-McEnany, not Kloxin – lacked an
“objective basis in the record” for concluding that “DeWitt had dropped the calls
intentionally.” And, the appeals court concluded, “it ultimately is immaterial
whether Ms. Baskett-McEnany's belief was actually correct – viz., her belief that
Ms. DeWitt's hang-ups were intentional; what matters is that Ms. BaskettMcEnany ‘honestly’ held that belief and ‘acted [on it] in good faith.’” In this
regard, the court noted, Kloxin was not the decisionmaker, and even assuming her
animus was disability-based animus, there is no evidence Barskett-McEnany knew
of Kloxin’s animus.
-
The Tenth Circuit specifically rejected DeWitt challenge to the honest belief doctrine
as eviscerating step three of the McDonnell-Douglas proof model. The Court’s
response: “Far from it. That prong contemplates that an employer will have professed
honest belief in ostensibly legitimate, non-discriminatory reasons for its adverse
action; but it establishes the context in which an employee may test the plausibility or
coherency of the reasons supposedly underlying that honest belief with the aim of
demonstrating that employer's belief actually may not be honestly held.” The Court
also declined to embrace the Sixth Circuit’s version of the honest belief doctrine,
which obliges the employer to bear the burden “to establish its reasonable reliance on
the particularized facts that were before it at the time the decision was made." Smith
v. Chrysler Corp., 155 F.3d 799, 807 (6th Cir. 1998).
-
The Court of Appeals also dismissed DeWitt’s accommodation claim because “she
did not request a reasonable accommodation to address concerns regarding the
possibility of dropped calls; instead, she requested retroactive leniency for her
misconduct. Specifically, Ms. DeWitt requested that SWBTC overlook that she hung
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up on at least two customers while on a Last Chance Agreement. Such retroactive
leniency is not a ‘reasonable accommodation’ as defined by the ADAAA."
Wagoner v. Lewis Gale Medical Center, LLC
Wagoner v. Lewis Gale Medical Center, LLC, No. 7:15-cv-00570, 2016 U.S. Dist. LEXIS
169129 (W.D. Va. Dec. 7, 2016)
-
In 2014 Jim David Wagoner began working as a security guard at the Lewis Gale
Medical Center on an as-needed basis. “[D]uring his second week of employment,
Wagoner told [the] Director of Safety Security and Emergency Management and one
of [his] supervisors, that he suffered from dyslexia and that he was having trouble
reading, understanding, and copying the work schedule that was posted in the security
office. . . . He asked Mr. Baker for a copy of the rather complicated work schedule
five times, but his requests were denied. . . . He was told he could not have a copy
and would have to write it down instead.”
-
Less than two months into his tenure, the hospital put Wagoner on a Performance
Improvement Plan (PIP) that identified performance deficiencies in seven areas. One
week later, Wagoner failed to show up for work and the hospital terminated him.
-
Wagoner sued, alleging discrimination on grounds of disability, failure to
accommodate his disability and retaliation against him by terminating him when he
sought an accommodation, all in violation of the ADA. Wagoner explained the
absence that resulted in his discharge as being related to his inability to read and
understand the schedule and Lewis Gale's failure to give him a written copy of it.
-
“Lewis Gale agree[d] that Wagoner had dyslexia—a disability as defined in the
ADA—and that Wagoner was discharged. It argue[d], though, that Wagoner was not
a qualified person with a disability, that he was not fulfilling his employer's legitimate
expectations, and that the circumstances of his termination d[id] not raise a
reasonable inference of unlawful discrimination. All of these arguments rel[ied] upon
the fact that Wagoner was on a PIP at the time he was terminated and that only one
area of deficiency in the PIP concerned Wagoner's disability and request for an
accommodation; the remaining deficiencies were unrelated to his disability.”
-
The District Court rejected the charge, “without any supporting case law, that any
employee on a PIP cannot be deemed to be meeting his employer's legitimate
expectations.” Thus, the court denied summary judgment motion as to Wagoner’s
discrimination and accommodation claims – the portions founded on the argument
that Wagoner was not qualified and could not be reasonably accommodated. The
court said “a jury could find that [he] was improving under the PIP and that it was
only his failure to attend work on June 5—the only deficiency related to his
unaccommodated disability—that caused his termination.” Finally, because “a
request for accommodation can constitute protected activity,” the District Court also
denied the hospital summary judgment as to Wagoner's retaliation claim.
15
Capps v. Mondelez Global, LLC
Capps v. Mondelez Global, LLC, No. 15-3839, 2017 U.S. App. LEXIS 1593 (3rd Cir. Jan. 30,
2017)
-
The Third Circuit affirmed a summary judgment dismissing ADA and FMLA claims
brought by Frederick Capps, the operator of a mixing machine that makes dough,
against his employer Mondelez Global, LLC, “one of the largest manufacturers of
snack food and beverage productions in the United States.”
-
-Capps has Avascular Necrosis (AVN), "a condition in which there is a loss of blood
flow, severely limiting oxygen and nutrient delivery to the bone and tissues,
essentially suffocating and causing death of those cells." AVN caused Capps to
develop arthritis in both hips, to have two hip replacements, and to experience severe
pain at times in his pelvic region, thighs and hips, “sometimes lasting for days or
weeks at a time.” He sought intermittent FMLA leave when flare-ups occurred.
Mondelez certified him for such leave following his hip replacements and “he was
continuously recertified approximately every six months for intermittent FMLA leave
for his condition until his employment was terminated in 2014.”
-
In February 2013 Capps took two days of FMLA leave due to leg pain, worked the
next day and then took the two more days of FMLA leave due to pain. He returned to
work the following Monday. On the fourth of his five days off the prior week,
however, he drove to a pub for dinner, had three beers and three shots of alcohol with
friends. Police cited him for Driving Under the Influence of Alcohol (DUI) on his
way home. The following August, Capps pled guilty to the DUI charge and served
72 hours in jail after the hearing. A Mondelez supervisor learned of Capps’ arrest and
conviction from a newspaper article left in his company mailbox. He compared
Capps’ leave and court records and found that the day of Capps’ arrest and several
court dates coincided with days Capps took FMLA leave. Mondelez terminated
Capps for misusing FMLA leave and violating the company’s Dishonest Acts Policy.
- “The District Court granted [Mondelez] summary judgment on Capps' FMLA
interference claim due to [his] inability to show that he was denied a benefit to which
he was entitled under the FMLA. . . . . The District Court granted summary judgment
on Capps' FMLA retaliation claim because the record evidence showed that
Mondelez based its decision to terminate Capps' employment on an honest belief that
Capps misused that leave. . . . . Finally, the District Court granted summary
judgment on Capps' ADA claim because, although Capps requested and received
intermittent leave under the FMLA, he never made a request for an
accommodation under the ADA.”
-
“The District Court rejected Capps’ retaliation claim because “[h]e cannot
demonstrate that the proper use of his FMLA leave - a protected activity - is causally
connected to his termination.” Moreover, “[e]ven if Capps could establish a prima
16
facie case, he has not adduced any meaningful evidence that would allow a
reasonable factfinder to find pretext.”
-
Finally, the Court of Appeals affirmed the District Court’s dismissal of Capps’ ADA
failure to accommodate claim, finding a “clear[] lack of evidence to show that
Mondelez did not make a good faith effort in accommodating Capps' request for
intermittent leave.”
-
Significantly, the court also declared: “Where an employer provides evidence that
the reason for the adverse employment action taken by the employer was an honest
belief that the employee was misusing FMLA leave, that is a legitimate,
nondiscriminatory justification for the discharge.”
Gazvoda v. Secretary of Homeland Security
Gazvoda v. Secretary of Homeland Security, No. 15-cv-14099, 2017 U.S. Dist. LEXIS 5936
(E.D. Mich. Jan. 17, 2017)
-
In the U.S. Armed Forces in Afghanistan in 2009, Anthony Gazvoda “was tasked,
along with his team, with clearing improvised explosive devices. During his time in
combat, Gazvoda witnessed a number of gruesome and unsettling injuries to
individuals with whom he served closely.” After his return from Afghanistan,
Gazvoda had Post-Traumatic Stress Syndrome (PTSD), including difficulty sleeping.
-
Gazvoda received treatment from the Veteran’s Administration (VA). His symptoms
resolved and in 2010 he began work as a Customs and Border Patrol (CPB) agent in
Laredo, Texas. Gazvoda soon began experiencing PTSD symptoms again, which he
and VA doctors attributed to the similarities between the settings in Laredo and
Afghanistan, including a hot and dry climate, a dense urban environment, and the
presence of people of color speaking a language other than English. He left his
position to seek treatment at a VA hospital in Michigan. In due course, medical staff
deemed him fit for duty, and he requested reinstatement to the CPB. However,
Gazvoda sought to return to a station other than Laredo. He twice asked CPB to grant
an exception to seniority-based transfer policies under a collective bargaining
agreement and to give him a “compassionate” reassignment to a position on the USCanada border in northern Michigan. The CPB denied these requests and also his
request for such relief as an accommodation of his PTSD. Gazvoda sued CPB and
the Department of Homeland Security under § 501 of the federal Rehabilitation Act.
-
The District Court denied Gazvoda’s prayer for a temporary restraining order, granted
a preliminary injunction to permit discovery, but then denied such relief on the
merits. While the court said an accommodation had been possible when Gazvoda
requested it (CBP positions existed in northern Michigan to which he could have been
transferred), the court also decided that Gazvoda could not show that the
discrimination he allegedly faced was so clear and so severe as to require an
injunction affording him such relief.
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Gazvoda’s case remains pending. The government insists that it was only required
to accommodate his known mental limitations as of the date of his request for
accommodation, and at that time it did not have information justifying a
requirement that it reassign him away from Texas to Michigan.
-
Most recently, the District Court denied the government’s motion for a protective
order, thereby permitting Gazvoda’s lawyers to proceed with depositions of VA
medical staff. The court held that testimony about “Gazvoda's medical condition now
and at the time of the accommodation request is relevant to . . . elements of [his]
claim, even if it is irrelevant to the question of whether the documentation submitted
to Defendants was sufficient to require an accommodation.”
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