Americans with Disabilities Amendment Act

The Americans with Disabilities Act provides that a person is entitled to an accommodation if needed. But, sometimes the need for accommodation is not so apparent. Back injuries are notorious for being unpredictable. Russell Holt applied for a job with BNSF railway. He received a job offer conditional on passing a physical exam. Mr. Holt had a history of back surgery. His medical doctor and medical information supported a positive result. But, the employer’s doctor, Dr. Jarrard, refused to certify the applicant unless he received an MRI. Mr. Holt could not afford an MRI. The Equal Employment Opportunity Commission filed suit, alleging that requiring the job applicant to pay represented discrimination against a person with a disability. That lawsuit became EEOC v. BNSF Railway Co., No. 16-35447, 2018 WL 4100185 (9th Cir. 8/29/2018).

The applicant’s insurance company would not pay for the MRI, because he was not in any pain, at present. The MRI would then cost over $2500.

The Ninth Circuit Court of Appeals asked the question, who must pay for a medical exam. The court viewed the claim as a “regarded as” disabled claim, noting that Mr. Holt suffered from permanent disc damage. BNSF tried to argue that it did not consider him impaired. It just wanted to be “sure.” The court was not persuaded. The employer pointed to a case that was in effect overruled by the ADA Amendments Act. But, more importantly, in requesting more information about Mr. Holt’s back condition, BNSF had made an assumption that the applicant had a back condition which prevented him from performing the duties. That presumption would persist unless the applicant could overcome it. The employer, said the court, cannot hide behind the level of uncertainty about the precise nature of his back condition. A “perceived impairment” is consistent with the ADAAA’s broad coverage.

The court then addressed the requirement that the applicant pay for the physical exam. The court had no trouble in finding that requiring a job applicant to pay the cost of a physical exam is a condition of employment which is based on a perceived impairment. An employer can only impose a condition of the job if it imposes the same requirement as all applicants. BNSF, however, only imposed this requirement to pay for an MRI on the job applicant who was perceived as impaired. That condition amounts to a violation of the ADA. And, noted the court, if the employer was not required to pay for such tests, then the test would act as a screening criteria for persons with a disability. That would also amount to a violation of the ADA. The court affirmed summary judgment in favor of the plaintiff.

See the decision here.

When a person asks for an accommodation, s/he must be specific. A general request to “reduce stress” at the work place will not suffice. In Murray v. Warren Pumps, 821 F.3d 77 (1st Cir. 2016), the plaintiff had a bad back. His work restrictions included not lifting anything over 10 pounds and not sitting, walking or standing too long. The employer and the employee agreed that the employer would not ask him to violate these restrictions and Mr. Murray would monitor the restrictions. The plaintiff believed the employer asked him to violate the work restrictions. Sometimes, he would complain. Sometimes, he would not.

The plaintiff’s job was monitoring work place safety. He had some issues with the employer’s observance work safety. He also expressed dissatisfaction with the things they had asked him to do. He complained that sometimes, he was asked to perform physical activities that violated his work restrictions. The company met with Mr. Murray and suggested he was not happy there. The employer offered him a severance package. He refused to resign and was fired.

The employee filed suit. He argued among other things that the employer failed to accommodate him. The court dismissed Mr. Murray’s claim that he sought breaks “from time to time” as an accommodation. The court found the request to be vague. And, the employee did not explain in what way the employer refused those requests for accommodation.The employee also pointed to an incident when his supervisor asked him to help paint. When the plaintiff said he could not, the supervisor walked away, apparently not happy. But, acknowledged the employee, he was not forced to do the painting and he did in fact do the painting. The employee also discussed a time when the supervisor told him to perform some wiring. Murray said he could not physically do that. The supervisor told him to “get it done somehow.” The employee found someone to perform the wiring. Mr. Murray did not do the wiring himself. Mr. Murray carried the toolbox, which did weigh more than ten pounds.

Another time, the supervisor asked him to oversee a project that involved a lot of walking. Murray acknowledged that he did not complain about this request, and he did not inform the supervisor that this request would require him to violate his work restrictions. Mr. Murray also did seek help from anyone. The supervisor had left for the day. But, Mr. Murray did not seek out any other supervisor for help. In responding to a motion for summary judgment, the plaintiff said he did not have to show he was actually required to violate his work restrictions. It was enough, he argued, that he was “deliberately requested” to violate his work restrictions.

The court found these incidents did not amount to failure to accommodate. The worker, said the court, must alert the employer that its request would require him to violate his medical restrictions. The employer has no duty to “divine” the requested accommodation when the employee makes a “mundane” request for change at the work place. The court felt that the employee understood he was to monitor the requests and let the employer know when something might exceed his capabilities. The employer did provide many accommodations, added the court.

The court makes a good point. In some circumstances, it will not be clear to the employer that a requested action might stress the employee’s work restrictions. Some supervisors will simply forget. They have many things to consider, other than one employee’s physical limitations. It seems to me that often when a situation is confusing, the courts will defer to the employer, especially where, as here, the employer did clearly provide some accommodations. See the decision here.

There are more and more veteran needing the use of a service dog. A trained service dog will perform several tasks of a veteran suffering from PTSD:

  • Watch your back. This is critical to a veteran who constantly looks over his/her shoulder for perceived danger.
  • Place himself between the veteran and others who come too close. This is also essential for veterans with PTSD who cannot tolerate crowds or persons standing too close
  • Provide simple comfort. Dogs can “read” a person’s emotions and provide critical warmth when the veteran is suffering an anxiety attack

The federal regulations regarding the use service animals require that service animals be trained to perform some task it would not normally do. These are some of those tasks. To a veteran with PTSD, these are no small tasks.

So, it is a little surprising that one major employer, Schlumberger Technology, will disregard a request to bring a service animal to work for some six months. But, in the case of Juan Alonzo-Miranda, that is what his employer did when the Iraq veteran asked to bring his service dog to work. Schlumberger finally approved his request in November, 2012. The veteran of three tours had to wait six months until he appealed the request to the CEO. He was working at the Von Ormy facility repairing pieces of large oil-field equipment. The employer said it was asking for medical documentation from the physician during that six months. It wanted to hear from the physician who prescribed the use of the service animal. But, there was no doctor who prescribed it. Mr. Alonzo-Miranda’s physician eventually completed a form in which he said the veteran could not function without the dog. But, no one actually prescribed the dog, so no physician could explain why it was prescribed. Some service animals are not prescribed by a physician. Often, the veteran requests a dog on his or her own, or a veterans counseling group suggest the use of a dog.

Even so, the use of a dog can still be mandated under the ADA. The Americans with Disabilities Act does not require a physician suggested accommodation. That has become a customary practice, but the statute does not require a prescription for any accommodation. Schlumberger only allowed the dog after Mr. Alonzo-Miranda personally appealed to the CEO. Most plaintiffs support their request or accommodation with medical documentation. But, that medical documentation is more to explain the nature of the accommodation. If the employer understands the nature of the medical condition, then medical documentation is actually not required.

Mr. Alonzo-Miranda sued the company. About a year later, he was fired for reasons that sound suspicious. But, the plaintiff’s claim for retaliation was dismissed from his lawsuit, presumably because he filed the EEOC charge too late. See San Antonio Express-News report (account required).

The trial has begun in federal court here in San Antonio, Texas. The first day’s testimony included a company Human Resources representative, Jean-Remy Bellanger. Mr. Bellanger said the company required Mr. Alonzo-Miranda to bring the dog through a side door, not the front door. The HR representative explained they did not want visiting company officials or investors to see the dog “wandering around.”

That observation suggests the company did not make a genuine attempt to discuss the matter with the employee. Most, perhaps all, service dogs stay very close to the veteran. That is the whole point of any service animal, to stay close and provide necessary protections. If the HR representative was not aware that a service animal is always close to the veteran, that suggests to me that the company did not engage in a discussion to understand the nature of a service animal. An employer is required to engage in an “interactive process” to discuss the accommodation. If the company did not understand something as basic as where the animal would be, that suggests the company did not engage in that interactive process. So, it is little wonder that mis-communication might result.

The reporter noted that the dog stayed by the plaintiff’s feet during the first day of trial. Yes, indeed, that is what service animals do. See a second San Antonio Express News report.

The Eleventh Circuit helps shed some light on the effects of the ADA Amendments Act, effective in 2009. In Mazzeo v. Color Resolutions International, LLC, No. 12-10250, 2014 WL 12740470 (11th Cir. 3/31/14), Anthony Mazzeo suffered a herniated disc and torn ligaments in his back at the age of 46. He worked as a sales and technical representative for CRI. He discussed his condition with his supervisor three times. He told his boss that he would need surgery in 2009. He said he would miss two weeks of work and would be restricted in what he could do for months. Mr. Mazzeo later provided a specific date for the surgery. The very next day, the supervisor started paperwork to terminate Mr. Mazzeo. CRI claimed Mr. Mazzeo was laid off due to decreased revenue.

Ten days after Mr. Mazzeo’s termination, CRI offered a position to a 23 year old recent college graduate. CRI claimed he was hired to replace a different employee. But, the supervisor testified that at least at first, the college graduate was hired to service Mr. Mazzeo’s former sales area. 

The court addressed whether Mr. Mazzeo suffered from a disability. The treating physician had submitted an affidavit for summary judgment. The lower court had found that doctor’s affidavit to be "conclusory" and lacked detail regarding how Mr. Mazzeo’s impairment affected his daily life activities. The lower court cited a pre-ADAAA case to say that there could not be a disability where a doctor’s note provided lifting restrictions but the employee said he could work. 

The appellate court disagreed. The Eleventh Circuit noted that pre-ADAAA cases did not apply. Unlike the pre-ADAAA case, the plaintiff Mazzeo testified regarding his limitations and explained how they affected his major life activities. And, the doctor’s affidavit explained how the impairment developed. The affidavit explained the origin of the impairment, how the pain affected the employee and the limitations on the major life activities caused (as required by the ADAAA) by the condition and the pain. This was sufficient detail, said the higher court, for summary judgment. There was no deposition of the treating physician and there was no rebuttal testimony from a physician selected by the employer. So, the affidavit was unrebutted testimony. 

Mr. Mazzeo testified that his back affected him playing golf and sex. But, noted the court, the questions that elicited that answer did not contain a time reference. It is unclear from the deposition transcript whether he referred to the time before the operation or after. Indeed, said the court, many of the deposition questions addressed the time period after the operation, not his unmitigated state before the operation. The higher court noted that the EEOC regulations provide that a condition need not prevent or severely restrict a major life activity in order to be considered "substantially limiting." A condition should be viewed in its active state, not in its improved or mitigated state. The doctor said the condition limited Mr. Mazzeo in bending, walking, sleeping, and lifting more than ten pounds. This is sufficient evidence to make out a prima facie case for purposes of summary judgment. 

(Note that the court is willing to include the doctor’s comments. It is, therefore, viewing Mr. Mazzeo’s possibly harmful answers in light of the additional testimony from the doctor. Too many courts have disregarded the illuminating testimony from a doctor, because an employee carelessly and in very general terms said he could "work.")

The recent college graduate was 23 years old. Mr. Mazzeo was 46 years old. Does that age disparity qualify as age discrimination? The court assumed it did and answered a different question. Did the plaintiff make a sufficient showing of age discrimination? Yes, said the court. The testimony whether the college graduate replaced Mr. Mazzeo was inconsistent. The higher court correctly noted that such possible inferences should be drawn in favor of the non-movant. 

Note also the timing issues presented by the court. Laying off an employee the very day after he has notified his employer he will need surgery substantially weakens any case. Timing is very important in all employment lawsuits. Surely, the court was annoyed by this apparent reprisal. 

The court reversed the grant of summary judgment. See decision here

Discrimination lawsuits are hard to win.  I have written many blog posts about that difficulty.  One federal judge recently even wrote that Judges are killing Title VII.  See my blog post about Judge Kopf’s blog post.  Prosecuting a discrimination case is an uphill climb.  So, it is important that any plaintiff do nothing to add to an already difficult endeavor.  In a recent Western District of Texas case, we see how an employee can make her case worse.  in Overton v. Seaborn Health Care, Inc., No. 12-CV-635, 2013 WL 6198227  (W.D. Tex. 11/272013), a female phlebotomist (a person who draws blood) sustained an on-rhe-job injury, tendinitis in her elbow and pain in her shoulder.  The Judge characterized it as old-fashioned tennis elbow.  

Ms. Overton’s doctor limited her ability to work, eventually recommending that she not work with her arm or hand more than two hours per day.  This latest restriction came after prior restrictions.  Seaborn did not have an on-site supervisor.  But, Ms. Overton was effectively supervised by the Air Force personnel who worked at her facility.  Seaborn had the contract to provide blood draws for the Air Force.  

Upon seeing this newest restriction, TSGT Furlough told her she must go home after two hours, apparently suggesting she was of no use after she could no longer draw blood.  According to the employer, Ms. Overton then went into a tirade, waving her hands in the air, raising her voice, and jabbing her finger at the sergeant.  Allegedly, this outburst was in full view of the patients and workers who were present.  MSGT Rea then arrived on the scene and was unable to calm Ms. Overton.  MSGT Rea, according to the plaintiff, asked her why the doctor would release her to work if she could only work two hours a day.  Ms. Overton said she could perform other duties for the rest of the day, but MSGT Rea was not interested.  The Master Sergeant did not offer any other possible accommodations (other than going home after two hours – presumably without pay). 

Ms. Overton admits she was upset.  But, she denies she was angry and denies waving her arms.  The Air Force then contacted Ms. Amadio, the President of Seaborn on the telephone.  Ms. Amadio was Ms. Overton’s actual supervisor.  The two Air Force sergeants invited Ms. Overton to come into an office and  talk to Ms. Amadio on the phone.  Ms. Overton declined to talk with her supervisor while the two sergeants were present.  The phlebotomist told the two AF sergeants she did not trust them and would not talk to her supervisor while MSGT Rea and TSGT Furlough were present.  

The Judge found her refusal to be a problem, because the Air Force was her client.  And, they did in some ways act as virtual on-site supervisors.  The Court noted that Ms. Overton denied going into a tirade but she did admit to being upset.  The Court seems to suggest he does not believe her denial about the outburst.  The judge, Xavier Rodriguez, granted the employer’s motion for summary judgment on all claims.  See decision here

One could argue with his interpretation of evidence and that he may have drawn fact inferences in favor of the movant, which he should not do.   But, I have to note that refusing a phone call – even if only while the two sergeants are present – is not good for a lawsuit.  And, really, what right does an employee have to deny speaking on the phone when requested by an actual supervisor or a client? 

And, the judge noted that the employer was offering an accommodation, that she could go home after two hours.  Yes, it was probably in a non-paid status.  But, I cannot find a reason why that is not one possible accommodation.  

So, after she declined the phone call, the Air Force personnel sent her home and Seaborn terminated her employment.  The employer argued in its motion that she was fired for her behavior, not due to her disability.  

The court acknowledged a difference in the facts, indicating that summary judgment might not be appropriate.  Yet, he did grant summary judgment.  Can you blame him?  The plaintiff did not engage in a high level of respect toward her supervisors or her clients prior to her termination.  That lack of respect alone will undermine even the best case.   

The Americans with Disabilities Amendment Act was passed during the Bush administration.  It became effective in September, 2009.  We are just now seeing cases that fall under the ADAAA.  One of the bigger changes wrought under the ADAAA concerns "regarded as" disabled claims.  Under the old ADA, in some appellate courts a claimant had to not only show he was perceived as disabled, but he would also have to show an actual disability.  In some circuits, a worker could be fired for appearing to be impaired – even if he was not.  Such was the law in the Fifth Circuit.  Other circuits did not require a showing of an actual disability.  

Now, the ADAAA has stated clearly that a person who is only "regarded as" disabled and who does not actually need an accommodation is not protected by the ADA.  Such a person is not entitled to an accommodation.  

The court recognized this change in Ryan v. Columbus Regional Healthcare System, Inc., 2012 WL 1230234 (E.D.N.C. 4/12/12).  In this case, the plaintiff only filed a "regarded as" claim.  She did not claim to suffer from an impairment for which she needed an accommodation.  She suffered a knee injury and had a knee replacement surgery.  She admitted the need for accommodation was transitory.  An impairment that is not permanent or close to permanent is not protected by the ADA.  So, Plaintiff Ryan’s claim was rejected by the court.  See decision.  

Under the old ADA, the courts engaged in extensive discussion regarding whether an employer truly "regarded" a worker as disabled.  The courts imposed a high burden to show that the employer perceived a particular worker as disabled.  In some cases, insults like "Del" (short for Deliverance) or "retarded" were found to not show that an employer regraded an employee as impaired mentally.  See Roberts v. Dimension Aviation, 319 F.Supp. 2d 985 (S.D. Az. 2004).  

But, now, courts looking at "regarded as" claims are not supposed to engage in extensive analysis whether an employee is impaired.  Instead, the courts are supposed to focus on whether the employer has provided a reasonable accommodation or has discriminated.  See Snyder v. Livingston, 2012 WL 1493863 (N.D. Ind. 4/27/12).  The old ADA required that to show "regarded as" claim, a worker had to show an impairment that substantially limited a major life activity.  But, now a plaintiff can proceed even if the impairment does not limit or is not perceived to limit a major life activity.  Id.  See Snyder decision. 

So, found the Indiana federal court, references to Ms. Snyder as being "emotionally unstable" and needing help were sufficient to show factual issue that the employer regarded Plaintiff Snyder as mentally  impaired.  Ms. Snyder did have a diagnosis of Attention Deficit Disorder and apparently suffered some form of depression.