I am back from the Windy City. We had a good time. We did the family thing. We got some time to ourselves as well. The weather was not too bad.

 

Before moving on to the blog entry of the day, my wife and I are huge Queer Eye fans. A new season of the show dropped on Friday. We have been busily watching. An episode we just watched talked about an organization called disabled but not really, headed by a remarkable person who truly believes that becoming a person with a disability/disabled turned around his life in positive ways. I found the episode fascinating for viewing the psychology of, “disabled but not really.” As everyone knows, I am not a big fan of the word, “disabled.” Instead, I prefer a person with a disability. However, after watching this show, I certainly got another perspective on it. Also, as I have mentioned previously, preferring disability is a battle I am losing. That is, disabled is definitely winning out.

The case of the day deals with the question of what happens when you allege working as the major life activity. Or, when you allege a complaint in such a way that a judge reasonably thinks working is the major life activity plaintiff alleges. For a plaintiff, the answer to that question is not good. For readers of my books as well as my blog, none of this is surprising. From the very beginning of my first edition of Understanding the ADA, I have said alleging working as the major life activity is a big no-no. That point of view only became more emphatic after the amendments to the ADA. There is very little reason why a plaintiff needs to allege working as a major life activity considering all the possibilities now existing after the amendments. What is the big deal you ask? The big deal is that Sutton v. United Airlines was never overruled with respect to what you have to show if you allege working as the major life activity. Under that case, when you allege working as a major life activity, you have to show that the plaintiff is prohibited from performing in a broad class of jobs; a very difficult standard to meet.

The case of the day is Booth v. Nissan North America decided by the Sixth Circuit on June 7, 2019. The opinion can be found here. Understanding how this case came down means also looking at the complaint as well, which can be found here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. As usual, the reader is free to focus on any or all of the categories.

I

Facts

After the plaintiff started working at a Nissan factory in Tennessee, he injured his neck and sought medical treatment. His physician recommended several work restrictions, but the restriction did not sideline the plaintiff. In fact, he continue to work on the assembly line for about a decade without incident. In 2015, the work restriction became relevant once again, and he requested a transfer to a different position in the factory. Nissan denied that request because the position’s duties conflicted with plaintiff’s work restrictions. Soon after requesting the transfer, Nissan announced plans to restructure the assembly line. In particular, Nissan wanted to modify the line so that workers performed four jobs. The plaintiff alleged that two additional jobs Nissan assigned to him would have violated his work restrictions. Nissan then told him to see a physician to assess whether he still needed those restrictions. The plaintiff followed that request and the physician modified the restrictions and cleared him to work all four jobs. Although the plaintiff remains a Nissan employee, he claimed that Nissan failed to accommodate him by pressuring him to remove the work restrictions. While you won’t find it in the opinion, the complaint is critical to how the case came down. In particular, in the complaint, there is an allegation that the work restrictions limited at least one major life activity. Also, the complaint alleged that the plaintiff had a disability that interfered with major life activities and activities of daily living by way of his work restrictions.

II

Court’s Reasoning

1. Plaintiff’s allegations against Nissan are time-barred because the denial of the transfer request occurred more than 300 days before filing his EEOC complaint.
2. The amendments to the ADA did not modify the definition of the major life activity of working as set forth in Sutton.
3. A plaintiff alleging a work-related disability is still required to show that her impairment limits her ability to perform a class of jobs or a broad range of jobs. This is something the plaintiff cannot do as he has worked without interruption on the assembly line since injuring his neck in 2004 and has continued to work there since the litigation began.
4. To prove a failure to accommodate claim, a plaintiff must show: 1) he is disabled under the ADA; and 2) he is otherwise qualified/qualified for the position despite his disability (without accommodation from the employer; with an essential job requirement eliminated; or with a proposed reasonable accommodation).
5. While the failure to accommodate claim is timely because the alleged conduct underlying the claim continued even after plaintiff filed his charge with the Tennessee Human Rights Commission, plaintiff did not suffer any adverse action. Therefore, the claim fails.
6. In fact, Nissan never failed to accommodate the plaintiff. It allowed the plaintiff to remain in the two job position after he alerted his supervisors that the two new tasks Nissan wanted him to perform conflicted with his work restrictions. It also did not move the plaintiff from the two job position until after reviewing the Dr.’s report and determining that his work restriction did not conflict with the modify positions on the assembly line.

 

III

Takeaways

 

1. This case had me going to the complaint itself. It was very hard for me to believe that a plaintiff lawyer would allege working as the major life activity. In fact, the plaintiff lawyer did not actually allege that. However, the plaintiff’s lawyer very much confused the issue with the allegations: 1) work restrictions limited at least one major life activity; and 2) plaintiff had a disability that interfered with major life activities and activities of daily living by way of his work restrictions. A reasonable judge could certainly make the inference that these allegations are in essence alleging working as the major life activity. It was certainly fair game for the defense lawyers to take that approach in their advocacy. Bottom line, with the amendments to the ADA, which specifies all kinds of major life activities, there is absolutely no reason, perhaps a rare exception exists, why working needs to be the major life activity alleged by plaintiff.
2. With respect proving up a failure to accommodate claim, I agree that the ADA requires a showing that the person has a disability and that he can perform the essential functions of the job with or without reasonable accommodations. Where the Sixth Circuit loses me is when it says that one possibility for a plaintiff proving up a prima facie case in a failure to accommodate claim is showing an alleged essential job requirement can be eliminated. The ADA requires no such thing.
3. If there is a moral of the story, imprecise pleadings can cost you big time. While the complaint did mention a neck injury, it doesn’t talk about how the neck injury substantially limited one or more major life activities. Also, when it comes to disability discrimination complaints, you are better off adopting a facts-notice hybrid type of pleading rather than a notice type of pleading. That is, allege sufficient facts to put the defense on notice of what they must be dealing with and stay away from general conclusions.
4. I noticed that a petition for an en banc rehearing was denied. Appeal to the Supreme Court? I wouldn’t if I were thinking about the rights of people with disabilities globally. Absolutely true that the Sixth Circuit in my opinion errs with respect to expanding the major life activity of working to include restrictions on work as Sutton specifically uses the phrase, “to be substantially limited in the major life activity of working.” It also in my opinion errs with respect to saying that a plaintiff can show that they could do a particular job with an essential function eliminated and still be qualified/otherwise qualified. On the other hand, persons with disabilities have not fared well at the Supreme Court in employment law matters. Also, it would not be good for persons with disabilities if the Supreme Court expanded the major life activity of working.