Americans with Disabilities Act

A  request for accommodation need not mention any specific words, so long as the request puts the employer on notice that an accommodation is needed. Indeed, if an impairment is obvious, caselaw does not require the person to actually request the accommodation. See Brady v. Wal-Mart Stores, 531 F.3d 127, 135 (2d Cir.2008); McElwee v. Cnty. Of Orange, 700 F.3d 635, 642 (2d Cir. 2012). Generally, a doctor’s note or medical restriction of some sort suffices to serve as a request for an accommodation. See, e.g.Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784 (6th Cir. 1998) (doctor’s note was sufficient, and court would infer that employer read it because it was located in plaintiff’s personnel file). So, the decision in Acker v. General Motors, No. 16-11174 (5th Cir. 4/10/2017) is surprising. That decision found that FMLA leave cannot constitute a request for an accommodation.

Lonny Acker worked for GM for over ten years. He was diagnosed with anemia, which causes blackouts, heart palpitations and severe fatigue. It can cause dizziness for prolonged periods. He requested and received intermittent FMLA leave. He was out on leave some 30 times over a six month time period. Five absences were considered unexcused. Mr. Acker testified he called in for those absences, but the phone records for his phone did not support that claim. He was suspended twice, once for 30 days. He then filed suit for the unpaid suspensions.

The employer moved for summary judgment. The lower court granted the motion for summary judgment, which the Fifth Circuit affirmed. The court insisted that Mr. Acker cannot create a factual issue based solely on his deposition testimony, since his testimony conflicted with the phone records. That is unfortunate. GM accused him not of not calling in but of not calling in to the right places. He allegedly called the absence phone line but did not call the Benefits & Services phone line, according to GM. Five of the 30 absences were in question. Plaintiff Acker insisted he called in correctly on those days. But, said, the court, his testimony was not enough to avoid summary judgment. So, the court affirmed summary judgment regarding his FMLA interference claim.

The employee then argued that his FMLA leave should constitute a request for an accommodation. He admitted that his FMLA request did not follow the GM procedure for seeking a request for an accommodation under the ADA and the state equivalent of the ADA. Mr. Acker argued that generally, a request for medical leave is generally also a request for an accommodation. No, said the court. The panel stated that FMLA and the ADA are two different statutes. But, of course, the two are different statutes.  That the two are different statutes wth different definitions does not explain why a request for medical leave does not serve as a request for an accommodation.

The court then added that “FMLA leave is not a reasonable accommodation under the ADA.” It cited Harville v. Texas A&M Univ., 833 F.Supp.2d 645, 661 (S,D.Tex. 2011), which cited Trevino v. United Parcel Service, No. 3:08-CV-889-B, 2009 WL 3423039 *12 (N.D. Tex. 10/23/2009). The court in Trevino does indeed find that a request for leave under the FMLA does not serve as a request for leave as an accommodation. But, it does not explain why. It does cite to Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001). But, the Navarro decision nowhere finds that in all cases a request for medical leave under the FMLA can never serve as a request for accommodation. Instead, it answered a different question, whether a daughter’s illness met the definition of disability under the FMLA. If the daughter’s diagnosis satisfied the definition of disability under the FMLA, then the mother was entitled to leave to care for her daughter. The question of whether a person asking for medical leave under the FMLA could be seen as also requesting leave as an accommodation was never addressed.

The salient question which the Fifth Circuit opinion did not address was whether the leave request under the FMLA satisfied the requirements for requesting leave under the ADA? The caselaw states in clear terms that no “magic” words are necessary to request leave as an accommodation. There appears to be no reason why a request for leave under the FMLA cannot serve as a request for leave as an accommodation, assuming the normal ADA factors are also satisfied. That is, so long as the employee places the employer on notice that the leave may apply to a qualified disability, then yes, a request for leave under the FMLA ought to serve as a request for leave as an accommodation. One can conclude from the court decisions, however, that judges prefer to keep legal matters tidy and not allow things to “slop” over from one statute to another……..

See the decision in Acker v. General Motors here.



It is difficult to find a lawyer who specializes in employment law and who represents employees. Most employment lawyers represent the employer and are not willing to represent employees. The typical plaintiff starts out talking to Personal Injury lawyers, because PI lawyers advertise. So, many times, the employment plaintiff must file his/her own case pro se. Pro se means the person represents himself. How do pro se clients fare in court? I have no scientific evidence, but in my experience, they do not fare well.

We see one such case in Mzyk v. Northeast Independent School District, No. 14-00952 (W.D. Tex. 9/1/2015). Ms. Mzyk did not file an actual Complaint. Usually the Complaint is a summary of the allegations against the employer. It is always couched in legal language. But, Ms. Mzyk simply filed a copy of her EEOC charge and the right-to-sue Notice. The court generously accepted the copies as a complaint. The court is required to accord deference to the un-schooled layperson who files her own lawsuit. The suit did not go well for Ms. Mzyk. The employer quickly filed a motion for summary judgment. Responding to a motion for summary judgment requires considerable skill and training. It would be quite difficult for any layperson to respond. Ms. Mzyk filed two extensions seeking more time in which to respond. The judge granted each request. But, still, she did not file a response to the motion.

The judge noted rightly that just because no response was filed, a court may not issue a default judgment. So, the judge went through the process of discussing the evidence. The discussion was brief. The plaintiff had presented no contrary evidence. The judge did discuss Plaintiff Mzyk’s rebuttal information from her deposition. But, the judge was necessarily only seeing the rebuttal testimony provide by the defendant. Any information provided by the defendant, we can expect, would be favorable to the defendant. So, of course, the judge found Ms. Mzyk did not make out her case. Her lawsuit was dismissed. It is fortunate for her that the defendant did not seek sanctions. It did make a counter-claim in its Answer that her lawsuit was frivolous. So, clearly it did occur to the employer that it could seek sanctions.

But, it is unlikely a judge would award sanctions against a pro se plaintiff, anyway. Without the benefit of counsel, the true claims of the plaintiff would almost certainly not be revealed. The defendant did not even seek an award of expenses of defending the lawsuit, normally a routine matter once summary judgment has been granted. The plaintiff was fortunate indeed.

The Fifth Circuit reversed summary judgment in another case recently. In Caldwell v. KHOU-TV Company, Inc., No. 16-20408 (5th Cir. 3/6/2017), the court addressed ADA and FMLA issues. Gerald Caldwell worked at KHOU TV as a video editor. Due to a childhood disease, he needed the aid of crutches for walking. Mr. Caldwell notified his supervisor he would need time off for upcoming surgeries.

About that time the parent company, Gannett Company notified KHOU that the station needed to reduce their work force. One worker was chosen for lay-off based on documented poor work performance. That editor was given prior warning about his performance. Mr. Caldwell received no such warning. Mr. Caldwell was also chosen. The supervisors initially said he was chosen because he had expressed an unwillingness to work in EDR. Later, in its motion for summary judgment, the employer argued that Mr. Caldwell had not taken the initiative to spend as much time in EDR as the other editors.

Mr. Caldwell filed suit based on the ADA and the FMLA. The employer moved for summary judgment, which was granted. On appeal, the Fifth Circuit reversed the summary judgment. The court found there was substantial evidence of pretext. The employer provided different reasons for selecting Mr. Caldwell for the RIF. The employer first claimed Mr. Caldwell shirked his responsibilities by refusing to do the EDR work he had been assigned. The employer provided this expansion in answer to interrogatories and in a letter to Plaintiff’s attorney. But, in a letter to the EEOC, the employer said he was terminated not because he avoided work, but because of his inability and unwillingness to adjust to new technologies. And, before the district court, KHOU argued that Caldwell did not take the initiative to spend as much time in EDR as other editors. And, contrary to all this evidence, the direct supervisor, Philip Bruce, said “absolutely” there were no job performance issues with Mr. Caldwell. These statements, said the higher court, indicated inconsistent explanations, so as to show genuine issue of material fact.

The lower court had looked at the same evidence and discounted it. The district judge found that many of these statements were not made by Mr. Bruce, the direct supervisor. But, the court of appeals noted that no precedent required that all explanations emanate from the direct supervisor. On the contrary, many cases cite articulated reasons from the employer as a whole. The court cited Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408 412-13 and n. 11 (5th Cir. 2007) for the proposition that simply stated, an employer’s inconsistent explanations for its employment decisions at different times are probative of whether those statements are pretextual and that cases do consider statements by the employer’s representatives before the EEOC, before the district court and the Fifth Circuit. And, that makes sense. The employer sues the “employer,” after all, not individual supervisors.

The higher court noted that the employer’s explanation had evolved from insubordination to a lack of initiative. Mr. Caldwell himself denied ever expressing a preference for or against EDR. The plaintiff’s supervisors also confirmed they did not recall the plaintiff ever expressing a preference against working in EDR. The employee also testified, and the supervisors confirmed, that it was ultimately the employer’s decision to limit his time in EDR, suggesting the employer was not truthful.

[Note: It is always unwise to try to mislead the court. Judges remember that. It will affect the rest of their decisions. That the supervisors apparently disagreed with the company’s  representative seriously undermines any case.]

The higher court also discussed the lack of opportunities for the disabled worker. The court compared not affording employment opportunities to black workers to not providing opportunities to Mr. Caldwell. The plaintiff had argued that the employer chose not to schedule him time in EDR. The lower court had found that he was not scheduled more time in EDR due to his disability. The Fifth Circuit found that lack of opportunity comparable to a case, Vaughn v. Edel, 918 F.2d 517 (5th Cir. 1990), in which an African-American woman was not given the chance to improve her work performance, because the employer did not counsel her about performance problems. In Caldwell, the court said this situation was similar because KHOU did not give Mr. Caldwell time to work in EDR and improve his technical abilities. This lack of time also indicated that the employer did not counsel Mr. Caldwell and warn him that he should spend more time in EDR.

The higher court also reversed summary judgment regarding Plaintiff’s FMLA claim. See the decision here.

This is the last in a series of cases dating back some three years in which the Fifth Circuit has reversed summary judgment. The most common problem in that line of cases is the failure of the district court to construe facts in favor of the plaintiff. We hope district judges will make more of an effort to construe facts in favor of the non-movant, as they should.

Persons who have a disability are entitled to accommodation if necessary. But, there are limits to the sort of accommodation they can expect. One limit on requests for accommodation is that the person cannot seek an indefinite leave. An employer should not have to wait forever or close to forever for an employee to return to work. In Moss v. Harris County Constable Precinct One, No. 16-20113 (5th Cir. 3/15/2017), the plaintiff, Robert E. Moss had a chronic back injury. He left on FMLA leave. When his FMLA leave ended, his doctor said he needed another six months of leave from work. Three months into that leave, he told his employer he would retire at the end of that six month leave. The new Constable promptly fired him before his six months had elapsed. Mr. Moss filed suit under several different statutes, one of which was the Americans with Disabilities Act. He argued that the Constable failed to accommodate his treatment.

But, the Fifth Circuit found that Plaintiff Moss filed to show he was entitled to an accommodation. It was not clear in the midst of his six month leave that he could perform the essential duties of his job, despite 16 years working with the Constable’s office. His doctor had not released him back to work. Mr. Moss argued that bis leave requests was not indefinite. But, noted the court, his requested leave would have ended the same day he planned to retire. That amounts to an indefinite leave, said the court. See decision here.

I am sure Deputy Moss had some reason for seeking to be counted as an employee through the end of his six months. Perhaps, there was some retirement benefit for reaching a certain date. But, the employer is not required to honor personal reasons.

The life experiences a judge brings to the table are important. Pres. Trump’s nomination of Neil Gorsuch illustrates that maxim. Judge Gorsuch, prior to assuming his chair at the Tenth Circuit Court of Appeals represented big business, often opposing attempts to seek class action certification on behalf of workers. His decision in Hwang v. Kansas State University, 753 F.3d 1159 (10th Cir. 2014), is an unnecessarily harsh decision for American workers. Professor Hwang requested a six month leave of absence for recovery from her cancer treatment. She had already received one six month leave and needed another six months off. Kansas State said no, relying on an inflexible, supposedly “no-fault” leave policy.The judge speaks in broad terms that a six month leave could never work. Six months is so long that such a worker is simply not qualified for the job, said the conservative jurist. “It’s difficult to conceive how an employee’s absence for six months . . .  could be consistent with discharging the essential functions of most any job . . . ” Hwang, at 1162. I have written about so-called fixed leave policies here. That assertion is poorly worded by any judge, when precision is called for.

Yes, it is unusual for any worker to miss work for six months and remain employed. Yet, it happens frequently for a wide variety of reasons at many employers. The critical question is whether a particular job function is a true job function. Is it a true job function that the worker return to work within a certain amount of time? See Holly v. Clarion Industries, LLC, 492 F.3d 1247 (11th Cir. 2007) (Applying a multi factor test to determine whether a claimed job function of arriving timely each day is truly required by the employer); Barber v. Nabors Drilling U.S.A., Inc. 130 F. 3d 702, 707 (5th Cir. 1997) (Rehabilitation Act) (whether a job function is truly required is fact intensive); Ralph v. Lucent Technologies, Inc., 135 F.3d 166 (1st Cir. 1998) (court upholds preliminary injunction requiring four-week trial return to part-time work for employee recovering from posttraumatic stress disorder); Carmona v. Southwest Airlines Co., 604 F.3d 848 (5th Cir. 2010) (although regular attendance may be an essential function of many jobs, plaintiff’s ability to meet employer’s “extremely lenient” attendance policy indicated that he was qualified). The key question is what happens if a person does not arrive timely, said the court in Holly. What is missing from Gorsuch’s analysis is the question, what would happen to the university if  Prof. Hwang was gone another six months?

Judge Gorsuch arrives at the critical question after spending some time disregarding the value of EEOC guidance and explaining why the denial of an accommodation actually benefits persons with disabilities. Hwang, at 1164. He then rejects Hwang’s suggestions that some faculty members receive sabbaticals of a year or longer. The reasoning is that if non-disabled persons are allowed extended leaves it would be discriminatory to not allow her an extended leave. The judge dismisses those examples as not sufficiently detailed. Hwang, at 1164. Are they tenured faculty, he asks? Are those professors on year-to-year contracts? But, those distinctions do not make a difference. The question is what would happen to the university employer if Prof. Hwang missed an additional six months. Would the business of the employer come to screeching halt? Would it offer some loss of income? What would happen? That the employer might allow extended leave for a year-to-year professor and not for a full tenured faculty member does not address that question. It does appear the judge was trying to reach a specific result.

The Judge could have simply said that under the facts of this case, Ms. Hwang has not shown that non-disabled workers are being treated differently. or, he could have said under the facts of this case, it appears the employer could not function if one professor took extended leave and that, therefore, the claimed job function of no extended leave is appropriate. Instead, he spoke much more broadly, suggesting a worker could never or almost never show that an employer can do without one worker for six months. He based that over broad assertion on nothing more than his personal knowledge of the working world.

Judge Gorsuch famously says a good judge is one who disagrees from time to time with his own decisions. He is right. A good judge follows precedent or the statute regardless of outcome. It just does not appear that he did so in his Hwang decision.

In another case, TransAm Trucking v. Admin. Review Board, Dept. of Labor, 833 F.3d 1206 (10th Cir. 2016), Judge Grouch dissented from a decision about a truck driver. The truck driver was stranded when his brakes froze in Illinois. The temperature was below zero at about 11 p.m. He asked his company what he should do. The tank was nearly out gas and he could not locate the fuel station required by his employer. The company told him to wait for the repair person. Then he noticed his heater was not functioning. Wishing a couple of hours, he noticed his was slurred. He fell asleep and woke up realizing after a few hours he could not feel his torso or his feet. He called the company again. The dispatcher told him to “hang in there.” After about 30 minutes of “hanging in there,” he unhitched the trailer. His supervisor told him to stay with the trailer. The boss kept telling the driver to turn on the heater and the driver kept telling his supervisor the heater was not working. The supervisor told him to drag the trailer with frozen brakes with him or stay with the trailer. That was his choice. The driver said he would go find some help and leave the trailer behind. TransAm fired him and he sued. The majority decision found he was fired because he wanted to comply with the Surface Transportation Assistance Act’s requirement to operate the truck safely.

Judge Gorsuch dissented. He admitted the employer’s decision was perhaps not wise or kind. (Gee, you think??) He pointed out that the statute protects someone who refuses to operate his vehicle out of safety concerns. But, in this situation, the driver was told to leave the trailer with the frozen brakes by the side of the road. He does admit after some protracted discussion about the meaning of “operate” that the statute is designed to protect the health and safety of the driver. But, the judge insists the statute applies to persons who “refuse to operate,” not to persons who actually operate the truck.

The judge’s focus on not operating the truck is curious. The last direction from his boss was to drive the truck with the broken trailer or stay with the trailer. His direction included both operating or not operating the truck. Yet, the judge focused on the direction to stay with the trailer by the side of the road – which meant not operating the truck. That focus does suggest the judge wanted to reach a certain result. He ignored the possibility that the driver was asked to operate the truck in an unsafe manner.

Sen. Franken asked Judge Gorsuch about this dissent. He mentioned that the judge described the temperature as “cold.” In fact, the temperature was 14 degrees below zero. The description suggests the judge was trying to reach a desired result.

The judge indicated the truck driver should have remained with the trailer in subzero conditions trying to to tell his boss the heater does not work. Simply to protect the cargo in the trailer. As a lawyer, I am gratified any judge is so committed to the precise wording of a statute. But, if you are a truck driver stuck out in the freezing temperatures at 11 at night, and your heater does not work, you do not really want to hear about “strict construction.” Your needs are more basic. And, I think, the rest of us do not want a judge who does not appreciate that distinction.

Sen. Franken says the dissent advocated an “absurd” result, that the driver should have asked his life to protect the cargo. Yes, that is absurd. See CNN news report.

One often overlooked aspect of Americans with Disabilities Act is that this statute also protects persons who have an association or relationship with a person who has a disability. See 42 U.S.C. §12112(b)(4). 20 C.F.R. §1630.8 defines the association as relationships based on family, business, social or other sorts of relationships.  The statute and regulation appear to recognize that persons with disabilities often have informal support groups. As one client with blindness once explained to me, he left his home for a job in a distant state. In that distant state, his colleagues at work became in effect his support network. He could not really survive without an informal  support group.

If a person suffers discrimination because he or she assists someone with a disability, how does that person show discrimination? There is no specific test for associational discrimination under the ADA. So, rightly or wrongly, the courts have adopted a test based on certain situations. The seminal case is Larimer v. IBM Corp., 370 F.3d 698 (7th Cir. 2004), cert. den. 543 U.S. 984 (2004). Judge Posner is the author. The court found three types of situations that fall within the protections of Sec. 12112(b)(4):

  • Expense – such as when the spouse of an employee will cause additional expense to the employer. This might happen when a spouse will cause health insurance premiums to rise, so the employee is fired.
  • Disability by association – the court focused on possible genetic pre-dispostion to certain impairments, or an employee with contagious impairment like HIV
  • Distraction – such as when an employee is distracted at work due to the impairment of a family member

The problem with this list is that courts inevitably see the list as exclusive. The Larimer court in no way suggested this list is a final list. In fact, the court set forth this list simply to help explain why Mr. Larimer would not be protected by the ADA. Mr. Larimer, said the court, lacked evidence showing the employer was concerned about the health care costs of his daughter, or that her condition was somehow communicable to others. Therefore, he was not entitled to coverage.

Judge Posner pointed out a “quirk” in the statute. By the literal wording of the statute, a person who alleges s/he was fired because s/he was associated with a person with a disability must show that s/he was a “qualified individual.” That is, the wording requires the family member to have a disability, just as the person s/he is assisting must also have a disability. That would make no sense. The purpose of the provision is to protect persons providing assistance, not those who have impairments themselves. So, Judge Posner interpreted this provision to mean the assisting person must be qualified for the position from which s/he has been fired. See the Larimer decision here.

The prima face elements for an associational discrimination claim would include that the person: 1) was qualified for the job, 2) was subjected to adverse personnel action, 3) was known by the employer at the time to have a relative or associate with a disability, and 4) suffered an adverse action in circumstances that suggest a reasonable inference that the disability of the relative or associate was the determining factor in the employer’s decision. See, Graziadio v. Culinary Institute of America, 817 F.3d 415, 32 A.D. Cases 1117 (2d Cir. 2016); Hilburn v. Murata Electronics N. America, Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999).

The caselaw is not perfect. But, the statute recognizes a fact of life in the world of persons with disabilities: many persons involved in their lives are not relatives. They often have an informal network of supporters who make their working lives possible.

A jury in state court awarded $240,000 to a detective with the Austin, Texas Police Department. Amy Lynch sued the department for discrimination. Ms. Lynch was a long-time law enforcement officer who was diagnosed with narcolepsy in 2009. Soon after, she was transferred from her high profile assignment in the Human Trafficking and Vice unit to Firearms, a less prestigious position. She was then later denied her accommodation of coming to work at 10:00 a.m. She received a poor evaluation and then went out on FMLA leave. While out on leave she was told she was being dismissed from the Firearms division and she would have to find a new position. And, oh by the way, she would have to pass a new fitness for duty examination. She passed that exam in 2011. It did not address her narcolepsey. So, the Chief ordered a second exam. She passed the second exam. But, she was still not offered a position.

Ms. Lynch filed suit in 2012. She filed her first EEOC charge in 2011 and her second in 2013. With no explanation, the Chief offered her a position in Burglary in January, 2014 with the accommodation that she could start work at 9:00 a.m. and not work nights. That was very close to her requested accommodation.

The state court jury deliberated all day after three days of testimony. It then awarded her $220,000 in lost pay and benefits and $20,000 in emotional suffering damages. See Austin Chronicle report. The general public does not appreciate that discrimination cases do not typically result in large verdicts. This case shows how often a jury will award an appropriate amount for lost pay and benefits. But, when it comes time to award emotional suffering type damages, the jury becomes very conservative. It also shows what can happen when an employer can “see the light” and reconsider an earlier, discriminatory termination. The jury surely took the Austin Police Department’s change of heart into consideration when it awarded a relatively small amount for emotional suffering.

But, the claim for attorney’s fees will surely be north of six figures. Discrimination cases require a tremendous amount of attorney time.

According to a recent study, lawsuits based on family care or pregnancy discrimination are on the rise. The Center for Worklife Law at the University of California produced the study. The Center found that lawsuits based on pregnancy discrimination or caring for family members more than tripled from 2006 to 2015. The study also found that employees won 67% of these cases that went to trial. The study looked at 4,400 such cases.

Cynthia Thomas Calvert, senior adviser to the Center, says American families are assuming a greater share of the burden of caring for persons with disabilities and those persons who are aging. That leads to greater stresses at work. See CBS news report.

There is no specific federal statute or Texas statute that addresses discrimination against care-givers. But, the Family Medical Leave Act does protect some workers who need time off to care for members of his/her immediate family. And, various other statutes protect persons who need accommodation for disability or who are pregnant.

The Fifth Circuit issued a strained interpretation of events in the recent case of Norbach v. Woodland Village Nursing Center, Inc., No. 13-60378 (5th Cir. 6/18/2015). In Norbach, the employee at a nursing home refused to pray the rosary with a resident. She was asked to do so by a co-worker. She was then called into the office by a supervisor. The boss told her that refusal amounted to insubordination. Ms. Norbach then said she could not pray the rosary. It would be against her religion. The supervisor said it did not matter. It was insubordination to refuse the request. She was fired. Ms. Norbach filed suit and eventually lost before the Fifth Circuit. The court of appeals found that the decision to terminate had been made before the employee raised her religious freedom as a motive. So, said, the court, the decision to terminate could not have been based on Ms. Norbach’s religion. See decision here.

Say what? The employee told the employer she was refusing based on her religion. He then replied that to refuse was insubordination for which termination was the appropriate response. If the decision had already been made, it was surely subject to recall when the employee explained her actions. And, it was surely just a matter of minutes before she explained her motivation. Strained interpretations make bad precedent.

I am reminded of the Norbach case, with its minute-buy-minute analysis regarding when a decision to terminate is made when I hear about the employee who nodded off at work. She was on medications for MS. The medications cause drowsiness. The employee tried to explain, but her boss would not listen. Her boss decided to fire her. She filed an EEOC charge, but like the Fifth Circuit in Norbach, the EEOC investigator decided the matter with that nano-second analysis. The investigator argued that the decision to terminate was made before the supervisor knew about the medications and the impairment. Well, wait a minute. If the supervisor made the decision to terminate before she learned about the medications, it was just barely before. It was seconds before. Yet, the EEOC investigator was prepared to dismiss the charge based on nano-second analysis.

This time, the employee had a lawyer, who argued no, the discussion was more complicated than that. The decision to terminate was not clearly made. And, really, the employer could have withdrawn its decision once it learned about the medications.

The EEOC investigator backed off his initial decision to dismiss. A few months later, the employer settled for a substantial amount. But, for a nano-second, the EEOC was prepared to engage in some injustice based on strained analysis.

In Burton v. Freescale Semiconductor Inc. and Manpower of Texas, LP, No. 14-50944 (5th Cir. 8/10/2015), the Fifth Circuit overruled the district court’s summary judgment. The court addressed a frequent issue, who is responsible for the termination of temporary employees? But, in so doing, the higher court also addressed a more frequent issue, how to apply the summary judgment standard.

Nicole Burton was placed at Freescale by Manpower, a temporary employment agency. Freescale relies on temps. It increases hiring in good times and scales back in the slow times. Ms. Burton received good performance evaluations in 2009 and 2010. In 2011, she broke a wafer. She was counseled for that error. In March, she inhaled chemical fumes at work. She sought  medical treatment. Her health problems continued and she filed a worker’s compensation claim in June. About two weeks after the filing, Freescale decided to fire her. Supposedly, an incident in late June when she was allegedly using the internet was the final straw. But, the evidence was ambiguous regarding whether the supervisor actually knew about the internet incident when he decided to terminate.

The decision to terminate was made in late June. But, the plaintiff was not terminated until late July. In the meantime, Freescale hired and trained her replacement. So, in that one month period, Freescale started collecting documentation of performance problems. Manpower asked for any such documentation. Manpower recommended against termination due to the small amount of documentation and the recent filing of her worker’s compensation complaint. The day after Manpower’s initial reluctance, representatives from Manpower and Freescale, including the supervisor and HR persons, conducted a telephone conference. They established a “communication plan” regarding her termination. They decided Ms. Burton would be fired for four separate incidents, at least two of which occurred after the decision to terminate had already been made. Ms. Burton was then told she was fired. She sued under the ADA. She claimed she was fired because of she was perceived as having a disability and because she filed a worker’s compensation claim.

The district court granted summary judgment. Unlike the court of appeals, the district court accepted Freescale’s accusations at face value with little discussion. The lower court agreed that at least one incident did occur post-termination, but the court simply pointed to “additional” transgressions which were not otherwise included as basis for the termination. The court seemed to think that showing some of the employer’s reasons, or even one reason, were false did not matter if the employer had “fall back” reasons for termination. Order re MSJ, p. 23. The district court also made the remarkable factual conclusion that the decision-maker’s testimony was not inconsistent. The court accorded no inferences in favor of the plaintiff when the decision maker could not recall when he first learned about the internet incident. The burden is on the emplayer to articulate its reasons for termination. If it cannot do so, there are many cases which would afford the plaintiff favorable inferences. Yet, the district court here afforded the plaintiff no such inferences when the employer’s story sputtered. The district court, it seems, did draw factual inferences against the plaintiff.

The plaintiff pointed to deposition testimony regarding the termination, when the supervisor changed her answer completely. At first she said she did not know who first recommended termination. Soon after, she said she was the one who first recommended termination. The plaintiff pointed to that very substantial change as indicating doubts about her testimony. No, said the lower court, the supervisor was simply trying to get her answer straight. But, of course, if the supervisor has trouble getting her story straight, that suggests a trial should be held. “Trying” to get her story straight is the very definition of shaky testimony. Summary judgment is not appropriate when there are questions about such evidence.

The higher court disagreed with the trial court. It found that the district court credited some testimony, while discounting other testimony. It noted that the district court flat ignored the supervisor changing her answer. This was in contravention of the decision a year ago in Tolan v. Cotton, 134 S.Ct. 1861 (2014). Burton, at p. 20 (slip opinion).

The district court even defended the managers, saying they were deposed two years after the incidents in question. “A person cannot be expected to be able to recall every single detail from two-and-one half years prior.” Order re MSJ, p. 26. But, really, that is why summary judgment should be denied. Summary judgment means “quick” judgment. A quick judgment should not be granted if there are doubts about the evidence. That is the point of summary judgment.

But, even so, the higher court seemed annoyed a bit with the language used by the employer’s attorney. At one point discussing pretext, the court noted that Freescale conceded that there was some evidence showing that the Freescale supervisor was aware of the medical treatment. The court noted the truth of that statement and remarked  that it just “scratches” the surface. Burton, p. 11 (slip opinion). Later, in a footnote, the court took a rare direct swipe at the language used by Freescale’s attorney.

  “Disparaging the evidence is a theme throughout Freescale’s brief. In addition to labelling Burton’s accounts of deposition testimony as ‘creative slicing and dicing’ and writing off the testimony regarding the defendants’ policies as ‘generic.’ Freescale also complained that ‘Burton attempts to pick apart verbiage used in Manpower’s EEOC Position Statement.’ We do not find this sort of dismissive bluster compelling in the slightest.”

Burton, p. 26 n.16 (slip opinion). That is judge speak indicating the judges were annoyed by the over-the-top language used by the attorney. Courts of appeals prefer more thoughtful analysis.

The higher court would not agree with the lower court that the employer simply provided “additional” reasons to the EEOC. The stories provided to the EEOC and provided to the court do differ regarding the reasons for the termination. The employers “peddled” the July reasons for termination only until discovery revealed the decision had already been made in June, noted the court. The higher court did what the lower court would not, it looked behind the defenses offered by the employer and found they did not hold up.

Regarding the joint employer issue, the court rightly noted that the critical factor is control of the employee. Evidence indicated Freescale had the greater degree of control by far. Manpower then argued that it was not involved in the decision, so it should be granted summary judgment. The court noted, however, that there was evidence that Manpower knew this termination was questionable. The temporary agency should have done more than simply acquiesce in the decision. And, said the higher court, that the placement agency “had no choice” contractually but to comply with a discriminatory decision is no defense at all. Its contract with Freescale also required it to follow all state and federal laws, including the Americans with Disabilities Act.

Regarding the “perceived as disabled” issue, the court explained that the plaintiff only needs to show that she was perceived as impaired and that the employer discriminated against her on that basis. Freescale urged that it was not aware of any disability. The court commented simply that there was no shortage of contrary evidence. See the decision here.