Americans with Disabilities Act

If a person needs an extended leave for treatment for a bad back, would the ADA require an employer to allow him an extra few months? The Seventh Circuit in Severson v. Heartland Woodcraft, Inc., No. 15-3754 (7th Cir. 9/20/2017), said no. Ray Severson, left work for his full 12 weeks of unpaid leave under the FMLA. He then told his employer he would have to undergo surgery on his back. He needed disc decompression surgery. He would need at least two months off from work for recovery. HR told him his last day would be the last day of FMLA. HR added that he could reapply for his position when his treatment ended. In effect, he was fired. Later, when Mr. Severson recovered and was cleared to return to work, he sued is employer, saying the employer had failed to accommodate him.

The plaintiff argued on appeal that the company could have offered him long-term leave, a light duty job, or reassignment to a vacant job. The Seventh Circuit, however, simply ruled that a long-term leave is not viable/ Not working, said the court, is not a means to fulfill the essential functions of the job. If the employee cannot perform the essential functions of the job, then he is not qualified for the job. The court noted that EEOC guidance expressly states long-term leave is a possible alternative under the ADA, if the leave is of definite duration, is requested in advance, and is likely to enable the worker to return to work. But, the court insists if the EEOC’s position as correct, then the ADA would become a medical leave act. It would supplant the FMLA.

The decision contravenes caselaw in other circuits which have found long-term leave to be a viable option. See, e.g., Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000) (reasserting requirement for individualized analysis but not requiring accommodation because even after one year’s paid leave, followed by five months unpaid leave, plaintiff’s homeopathic physician only offered the vague possibility of returning in one to three more years, and suggested no other work he could do); Cleveland v Fed. Express Corp, No 02-3172, 2003 US App LEXIS 24786, at *13 (6th Cir Nov 28, 2003) (unpublished) (finding leave from August 20, 1997 to February 1998, extended to March of 1998 (6 months total) not unreasonable).

The court did not ask whether long-term leave would have presented an undue hardship for the employer. It found, instead, as a blanket rule, that leave longer than the FMLA leave of three months is per se too long. A blanket rule does not satisfy the individual assessment requirement of the ADA.

In Whitley v. Dr. Pepper Snapple Group, Inc., 2017 LEXIS 68040 (E.D. Tex. 2017), the Plaintiff’s son was diagnosed with autism spectrum disorder in September, 2015. Amy Whitley claimed Dr. Pepper discriminated against her because it denied coverage for Applied Behavior Analysis treatment, a form of therapy for autism spectrum disorder. Dr. Pepper’s Summary Plan Description initially made no reference to ABA treatment. The Plan did not list ABA treatment as excluded from coverage. In September, 2015, Amy Whitley met with an HR person for Dr. Pepper. The HR person said the Plan did not cover vocational rehabilitation training.

On Jan. 29, 2016, Dr. Pepper amended the Summary Plan Description to specifically exclude ABA treatment. The new Summary Plan Description was posted in May, 2016. Plaintiff Whitley filed an EEOC charge and later filed suit.

The employer moved for summary judgment and argued the amendment was intended to clarify the Plan. The Americans with Disabilities Act prohibits a denial of benefits due to a disability. The court found the plaintiff had an association with a person with a disability, her son. Dr. Pepper became aware of her son’s diagnosis in September, 2015. The court found the denial of coverage amounted to a denial of benefits, which is prohibited by the ADA. A term or provision of a health benefit plan may violate the ADA if it singles out a particular disability. The 2016 Amended Plan did single out and exclude from coverage ABA treatment.

The burden then shifted to the employer to provide a non-discriminatory reason for the exclusion. The court was not satisfied with the reason offered by the employer. The court found there was substantial issue of material fact regarding why the treatment was excluded. The court denied the motion for summary judgment, finding that the employee showed mgenuine issue of fact regarding whether the employer’s actions amounted to retaliation. See the decision here.

What is a disability? A potential client asked me that recently. A broken leg, for example, is not an impairment that would qualify for coverage under the Americans with Disabilities Act. To qualify as a disability, the impairment must be permanent or something like permanent. It must also be serious. In Datar v. National Oilwell Varco, L.P., No. 01-15-00541 ((Tex.App. Hou. 1/19/2017), the employee claimed a impairment involving his back. He said he had a lower back sprain that made it “harder” to sit down, to walk and to pick things up. The Court of Appeals found that an impairment does not rise to the level of a disability unless it affects a major life activity. Yet, the court apparently disregarded evidence that at least once, the employee was in such pain that he had to go to the emergency room and could not work. Too, the court relied on caselaw issued prior to amendment of the ADA in 2009.

The court discounted the plaintiff’s testimony that the sprain made it harder for him to work. It relied, instead, on the medical note that released him back to work. See the decision here. This will be a continuing issue in future cases. Many persons suffer from these debilitating back injuries.

“Direct” evidence of discrimination generally means a statement that clearly indicates discriminatory intent. In one of my early cases, a San Antonio manager said “we need to get rid of all the lazy ass niggers here.” That statement clearly evinces discriminatory intent.The bias is clear with no need for additional explanation. In Okpere v. National Oilwell Varco, LLP, No. 14-15-00694, 2017 WL 1086340 (Tex.App. Hou. 3/25/2017), the Houston Court of Appeals discusses direct evidence regarding a man with a disability. Ehimarey H. Okpere worked for NOV for four months. He suffered a stroke and returned to work within days. He was terminated 13 days later. Mr. Okpere testified that his team leader said the supervisor said upper management let him go because of his condition, the stroke. The team leader, however, denied the statement. A statement against interest is not considered hearsay. A statement against interest by management would be admissible. So, a statement by management that upper management took an action which violates the ADA would normally be admissible. The problem here is that the team leader is not offering his opinion about why Mr. Okpere was fired. He is quoting his boss. The team leader was not offering his own opinion, but the opinion of the supervisor. So, his statement is hearsay within hearsay.

The Houston Court of Appeals felt that was too large a jump from the person uttering the statement to the person who heard it. The result likely would have been different if the employee was told this by the supervisor directly. But, this statement was uttered by someone who merely heard the supervisor utter the statement. The court found that even direct evidence is subject to the hearsay rules. That is, hearsay within hearsay is hearsay.

The employer otherwise defended against the lawsuit by claiming the Human Resources person who fired the worker did not know he had suffered a stroke. He did not know that Mr. Okpere had a disability. But, the timing was remarkable. The plaintiff was fired just 13 days after returning to work. NOV said it fired the employee because he was late for work that morning. The company claimed it would not normally fire a worker for being late one time. It pointed to an ambiguous comment on Mr. Okpere’s prior time card indicating he had been late before. The court then parses the evidence to find that Mr. Okpere’s testimony that he had never been late was not consistent with other parts of his testimony.

Anytime a court has to parse and get into exacting detail about a person’s testimony, then summary judgment is not appropriate. But, the Houston court of appeals appeared to be more interested in affirming summary judgment. See the decision here.

The Americans with Disabilities Act was passed in 1992 during the administration of the first George H.W. Bush. It was later amended in 2009. Yet, many persons with disabilities still face obstacles to employment. In EEOC v. S&B Industries, Inc., No. 15-CV-641, 2017 LEXIS 9259 (N.D. Tex. 2017), two women with hearing impairment applied for a job with S&B Industries. S&B repairs cell phones. There was a group interview of several applicants. Katelyn Baker and Tia Rice communicate only with benefit of an ASL interpreter or by writing notes. The employer did not hire either woman. The parties agreed the two women were not qualified for the technician job. They lacked experience and training. But, contended the EEOC, there were several other jobs the two women could have performed. The women were referred by a staffing agency, which was aware of their impairment. Yet, no one provided them an ASL interpreter for the group interview.

The EEOC sought to provide an expert at trial, who would describe the ASL language, and discuss the barriers faced by hearing impaired persons when seeking employment. The employer moved to exclude testimony from the expert, arguing she would simply present stereotypes about society. It argued that none of these stereotypes have been attributed to S&B. The court noted that an expert can serve as a “teaching” expert if she can distill complicated subject matter into language a jury can understand. The expert had planned to testify that “audism and phonocentric” views may have prevented accommodations from being offered by  S&B. The court rejected that testimony, saying there was no evidence that such views may be attributed to S&B. There was no evidence, circumstantial or direct, that any employee of S&B held such views.

The court also rejected the expert’s planned testimony regarding how many people in the U.S. suffer from hearing impairment and regarding how few are employed. The court opined that such evidence would not help show that discriminatory motive animated the decision not to hire Ms. Baker and Ms. Rice. Such evidence might help show why the two plaintiffs could not mitigate their damages. But, that was not the topic for which the expert was identified.

Experts are not used often in employment cases. The problem, as shown here, is tying such polemics to actual alleged transgressors. Just because many people hold bias against deaf persons do snot mean these particular managers held those views.

It is rare for persons with severe disabilities to come forward and file a complaint. The parties entered into a Consent Decree soon after the court’s ruling on the motion to exclude and regarding summary judgment. The court denied the motion for summary judgment in part. The EEOC then settled the case for $110,000 and with the requirement that the employer conduct training on accommodations in the workplace. See EEOC press release here. See the decision here.

When you ask for an accommodation, you need to be careful what you ask for. Because, you just might get it. That is an old saying and it applies to the decision in Dillard v. City of Austin, 837 F.3d 557 (5th Cir. 2016). Derrick Dillard worked for the City of Austin. He was a laborer and field supervisor until he sustained injuries in a car wreck. He could not perform physical labor any longer. After extended leave, he was offered a position as an Administrative Assistant. He was stunned at first, because he did not know how to do “no administrative work.” He did not meet the stated qualifications for the job, three years experience as an Administrative Assistant. So, the city provided him with on-the-job training and let him shadow another Administrative Assistant. He was encouraged to complete additional training, but he never did. His typing skills did not improve. Instead of training on the computer, he was observed to be surfing the internet and playing games. He arrived at work late and left early. He spent some of his time looking for a new job.

The employee started the Administrative Assistant job in April, 2012. By September, he was given a bad performance evaluation. His supervisor testified that he lacked skills, but he also seemed unwilling to improve his skills. Mr. Dillard asked to be moved to a different job and claimed he was not given enough work to do. He admitted he could not complete his one typing assignment because he could not type fast enough. His physical abilities were improving. But, the process toward termination proceeded. At a pre-termination meeting, he admitted the allegations against him were accurate. He was not apologetic for his behavior. He said he was trying to find a new job within the City.

In late October, he was fired. Plaintiff Dillard filed suit saying the city failed to accommodate him. The district court granted summary judgment. The higher court noted that if an accommodation is not working, then the employee may ask for a new accommodation. That is part of the interactive process. The plaintiff argued that the City failed to cooperate when it became clear the new job was not working out. He argued that as his capacity improved, the City should have considered him for jobs that were open. But, the Fifth Circuit was not impressed. The interactive process is a two-way street. It requires that both parties work together in good faith. When they gave him the new job, the ball was in his court. He should have worked in good faith to make it work. The misconduct indicated the was not trying in good faith to succeed in this new position. There was also evidence of making personal phone calls, napping at work, lying about his attendance, etc. This case was now less about the interactive process and more about mis-conduct.

The higher court found no evidence that the City failed to act in good faith, since the employee did not show a desire to try and make the new position work. The court affirmed the grant of summary judgment. Yes, be careful what you ask for, because you just might get it. See the decision here.

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.