I know I said that last week’s blog entry would be my last substantive blog entry of the year, but events can always happen to change my mind. Recently, the 11th Circuit came down with a published decision on December 7, 2016, in EEOC v. St. Joseph’s Hospital, Inc. , which has several issues worth talking about, including: what it means to have a disability; whether a person is a qualified person with a disability; whether the ADA mandates reassignment when a person is no longer qualified to do the job they are currently in; Rule 59(e) motions, EEOC legal malpractice, and why it is important for a plaintiff to have their own attorney. As is usual, the blog entry is divided into categories and they are: facts; was the plaintiff a person with a disability under the ADA; was a plaintiff a qualified individual under the ADA; does the ADA require mandatory reassignment where a person is no longer a qualified individual with a disability for their current job; whether the court erred in granting a Rule 59(e) motion; did the EEOC commit legal malpractice; is there a Circuit court split; and takeaways. Of course, the reader is free to concentrate on any or all of the categories. Later in the week, I will be posting my top 10+1 blog entries of 2016 as determined by your views.
In short, the plaintiff sought a reasonable accommodation in the form of a job reassignment to another unit at the hospital because she required the use of a cane that posed a safety hazard in the psychiatric ward where she worked. She was given the opportunity to apply for other jobs at the hospital, but was required to compete for them. When she did not obtain another hospital position, the hospital terminated her employment and the EEOC brought suit on her behalf. While that is an excellent summary, much more detail is needed. In particular:
- Plaintiff had a condition called spinal stenosis. She also developed arthritis and underwent hip replacement in 2009. It was at that point in time she began to use a cane to alleviate her back pain and to provide support. Without the cane, the plaintiff, 62 years old and obese, could only walk short distances and would need to stop to realign her body.
- During the course of a disciplinary action in October of 2011, she was observed using a cane in the psychiatric ward. The Director of Behavioral Health Operations was concerned that patients could use the cane as a weapon. Once the plaintiff was demoted, the hospital advised her that she could no longer use the cane in the psychiatric ward because it posed a safety risk.
- The Manager of Team Resources spoke to the plaintiff and offered her the opportunity to remain employed with the hospital and gave her 30 days to identify and apply for other positions.
- Normally, the hospital did not permit an internal candidate to apply for a transfer unless they had been in the current position for at least six months and had no final written warnings in their record, and the plaintiff met neither criteria. Even so, the hospital waived the requirements and allowed her to compete with other internal applicants as opposed to being in the general pool of job applicants. Although the hospital authorized the plaintiff to apply to internal channels as an active employee, all of her job applications were as an external applicant.
- The Team Resources Director told the plaintiff that it wasn’t the hospital’s job to get a job for the plaintiff, but they were available to answer questions and guide her through the process. She also stated to the plaintiff that she was not charged with reassigning the plaintiff to another position.
- The plaintiff advised the Team Resources Director that she was going on vacation for two weeks at the start of the 30 day period, and that she would not look at the hospital’s job board until her return. The plaintiff never came to the Team Resources Director with questions about the application process, the website, or the particular details of any position. Further, she did not apply for another position until November 11, 2011, which was three weeks into her 30 day allowance. A hospital job board listed over 700 jobs available. The plaintiff did apply for seven positions, three of which were applied for on the last day of the 30 day period and one of which she applied for after her 30 day application had expired.
- At trial, the parties focused on three positions that the plaintiff applied for during the 30 day period: educational specialist, care transition coordinator, and home health clinician. The plaintiff was not interviewed for any of these positions.
- Following the expiration of her 30 day application, the hospital terminated the plaintiff, but she continued to have access to the hospital’s job board. Even so, she only applied for one additional position on December 17, 2011. Had the plaintiff been further along in the interview process at the 30 day mark, the hospital would have also extended her employment to allow time for the interviewing process.
- At trial, the trial court instructed the jury as follows: the jury first had to determine whether the hospital had failed to provide a reasonable accommodation by not assigning plaintiff to the educational specialist, care transition coordinator, or home health clinician position; if yes, the jury had to decide whether the hospital established its affirmative defense that it made a good-faith effort to provide a reasonable accommodation; if no, the jury had to figure out whether the hospital established its affirmative defense that the proposed accommodation would have constituted an undue hardship; and if no, the amount of damages that should be awarded.
- Both the EEOC’s and the hospital’s proposed verdict form required the jury to cease deliberations upon a finding that the hospital made good faith efforts to reasonably accommodate the plaintiff.
- The jury answered the first question yes finding that the hospital failed to provide a reasonable accommodation. They also answered the second question yes finding that the hospital made good faith efforts to identify reasonable accommodations for the plaintiff. In accordance with the jury verdict form, they then ceased deliberations. Neither party requested the District Court to instruct the jury to render a verdict on the undue burden defense, in addition to its finding of good faith. Accordingly, the District Court entered judgment in favor of the hospital.
- Perhaps, in an effort to undo its mistake, the EEOC filed a rule 59(e) motion for alteration of the judgment asking the district court to vacate the good-faith finding, find the hospital liable, and remand for a trial and damages. The EEOC argued the jury’s good-faith finding applied only as a defense to compensatory and punitive damages and not as a defense to liability. The court held that good faith was a defense only to jury awarded damages and not to liability. It then turned to equitable relief and decided that the plaintiff was entitled to reinstatement. The District Court ordered the parties to mediate to determine the specific parameters for the plaintiff’s application for reinstatement, but after one month, the mediator notified the court that the parties had reached an impasse. Plaintiff eventually found full-time work as a telephonic behavioral nurse at a satellite of the MacDill Air Force Base.
Was the Plaintiff A Person With A Disability?
- The plaintiff had spinal stenosis and had undergone hip replacement in 2009. The evidence clearly shows that she was substantially limited in her ability to walk. She depended on the cane to alleviate back pain and provide support for her hip. Without it, she could only walk short distances and would have to stop, line up her body, and balance herself.
- Walking is a major life activity under the ADA.
- With the amendments to the ADA, the threshold issue of whether a person has a disability does not require extensive analysis. Accordingly, plaintiff was a person with a disability under the ADA.
Was The Plaintiff Qualified Individual Under The ADA?
- It is not relevant whether the plaintiff could perform her then-current job in the psychiatric ward because she sought reassignment. When an employee seeks reassignment as a reasonable accommodation, the critical question is deciding whether she is a qualified individual for those new jobs and not whether she was qualified for her current position. That view is supported by the ADA itself, 42 U.S.C. §12111(8), which says that the relevant position is the one that the individual holds or desires.
Does the ADA Require Reassignment Without Competition for A Person with A Disability No Longer Qualified for Their Current Job and Who Is Seeking Reassignment?
- While the ADA says an employer must reasonably accommodate the employee with a disability, it does not say how an employer must do that. Rather, it offers a nonexclusive list of accommodations that may be reasonable with one of them being reassignment to a vacant position.
- The ADA does not say or imply that reassignment is always reasonable. In fact, the use of the word “may,” argues just for the opposite. Namely, that reassignment is reasonable in some circumstances but not in others.
- In the 11th Circuit, employers are only required to provide alternative employment opportunities reasonably available under the employer’s existing policies.
- In a footnote, the court notes that had Congress understood the ADA to mandate reassignment, it could easily have used mandatory language but it did not. Such a decision reflects that Congress did not intend reassignment to be required in all circumstances.
- Requiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable in the run of cases. Since employers operate their businesses for profit, as a general rule, which requires efficiency and good performance, passing over the best qualified job applicants in favor of less qualified ones is not a reasonable way to promote efficiency or good performance. Further, when it comes to hospitals, the well-being and lives of patients can depend upon having the best qualified personnel. Undermining a hospital’s best qualified hiring transfer policy imposes substantial costs both on the hospital and potentially on patients as well.
- The intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities.
- The ADA was never intended to turn non-discrimination into discrimination against persons without disabilities.
- The ADA is not an affirmative action statute and only requires the employer to allow the person with a disability to compete for the job; it does not require the employer to turn away a superior applicant. Accordingly, the District Court did not err by failing to instruct the jury that the ADA requires reassignment without competition.
- The 30 day period to identify a new position was a reasonable amount of time. In particular: in addition to the 30 days to find a job, the hospital told her that the time period would be extended for any position for which the plaintiff was being considered; the Team Resources Director instructed the plaintiff’s supervisor to check with her before terminating the plaintiff’s employment because the Team Resources Director knew that plaintiff could still have outstanding applications at the time; and even once terminated, the Team Resources Director told the plaintiff she could continue identifying and applying for positions.
- The evidence was such that the jury’s verdict that the hospital failed to reasonably accommodate the plaintiff by not assigning her to one of the three positions was not an appropriate one to be disturbed.
- The evidence also supported the jury’s finding that the hospital acted in good faith when it: waived the prohibition against applying for an internal job transfer despite the plaintiff’s disciplinary history and demotion; assigned a person to assist the plaintiff in the application process for other positions and gave her 30 days to identify and apply for jobs; waived the requirements for internal transfer; and would have extended her employment if she was in the process of seeking reassignment to another position.
Did the Court Err in Granting the Motion to Alter the Judgment?
- Both parties proceeded as if a good-faith finding absolved the defendant of all ADA liability.
- The EEOC’s own proposed jury instructions and verdict form read together, treated good faith as a complete defense to liability. The verdict form unequivocally did so by instructing jurors that if they found that the hospital had made a good-faith effort to identify and make a reasonable accommodation for the plaintiff, they were to end of deliberations without deciding whether the plaintiff’s requested accommodation would impose an undue hardship on the hospital.
- The jury instructions on good faith and undue hardship both state that a finding of either good faith or undue hardship obviates the need for a verdict on damages.
- Undue hardship is a complete defense to ADA liability.
- No doubt exists that any reading of the jury instruction and verdict leads to the logical conclusion that the parties believed that the jury’s finding of good faith equated with a hospital verdict.
- It was only after the District Court entered judgment that the EEOC filed a rule 59(e) motion for the first time raising the issue that good faith only precludes jury awarded damages. As such, this rule cannot be used to raise new legal theories or arguments, much less one contradicting verdict forms or instructions that the moving party proposed to the District Court.
- Accordingly, the District Court abused its discretion and should have denied the motion and left in place the original judgment for the hospital instead of allowing the EEOC to correct it decision because of its poor strategic choices.
- Since the Rule 59(e) standard was not met, the court specifically declined to address whether a good faith defense is an absolute defense to ADA liability. For that matter, it wasn’t necessary to address the hospital’s undue burden defense or the denial of equitable remedies to the plaintiff.
Could You Argue That the EEOC Committed Legal Malpractice?
- The ADA makes it quite clear that good faith is a defense to damages (see, 42 U.S.C. §1981a(a)(3), but not to liability. Accordingly, if an employer shows good faith, they can escape damages, but that does not mean they can escape equitable relief.
- In light of that, it is quite odd that the EEOC did not ask the court to render a verdict on the undue burden defense, in addition to its finding of good faith.
- Even assuming the EEOC committed legal malpractice, an argument which I think can be made, does the plaintiff have any recourse. That is, could the aggrieved person sue the EEOC for legal malpractice? The answer is unequivocally no because the EEOC cannot engage in an attorney-client relationship with an aggrieved person since it does not represent that person’s interest. See Adler v. United States, 2012 U.S. Dist. LEXIS 3321 (D. Nev. January 10, 2012).
Is There a Circuit Court Split?
- The Seventh Circuit has an opinion on mandatory reassignment that we discussed here. As discussed in that blog entry, the Seventh Circuit took the following approach. First, one has to decide whether mandatory reassignment was ordinarily, in the run of cases, a reasonable accommodation. Second, if so, are there fact specific considerations particular to the employment system that create an undue hardship and make the mandatory reassignment unreasonable. Third, the employee has insert to show that the accommodation is of the type that is reasonable in the run of cases. Fourth, if the employee makes that showing, the burden then shifts to the employer to show that granting the accommodation would impose an undue hardship under particular circumstances of the case. Finally, if the accommodation is not shown to be a type of accommodation reasonable in the run of cases, the employee can still prevail by showing that special circumstances warrant a finding that the accommodation was reasonable under the particular circumstances of the case.
- In the Seventh Circuit, the ADA requires employers to appoint employees with disability to the vacant position unless an undue hardship is present or a collective bargaining agreement dictates otherwise.
- Comparing the Seventh Circuit decision, including the one from the Northern District of Illinois, with the 11th Circuit, there certainly seems to be a difference in tone between the Seventh and 11th Circuit, particularly with respect to burdens of proof. Also, while not a direct conflict between Circuits, the 11th Circuit opinion is certainly in conflict with the decision from the Northern District of Illinois, which we discussed in this blog entry. In that decision, Judge Kennelly held that an attempt to reassign an employee with a disability to an alternative position is required where that an employee cannot perform the essential function of her position and there are no other available accommodations. He also said that in considering reassignment to a different position, the employer must make a reasonable effort to explore the possibilities with the employee.
- The 11th Circuit specifically relies on Huber v. Wal-Mart Stores, a decision which the Seventh Circuit specifically disowns in their decision, for the proposition that the ADA allows for competitive bidding.
- If this case shows anything, it shows the importance of a plaintiff having his or her own attorney to represent his or her own interest. If the EEOC brings a claim, the actual person alleging discrimination has the absolute right to intervene. If that had happened in this case, presuming an attorney well-versed in the ADA represented the plaintiff, the attorney for the plaintiff could have argued at trial that good faith was not an absolute defense to all ADA liability and upon winning that argument, the jury verdict form would have been corrected. That would have prevented all the problems.
- I think an argument can be made that a Circuit court split does exist now on mandatory reassignment. Certainly, the 11th Circuit relying on Huber with the Seventh Circuit explicitly saying they were overruling a case that relied on that decision indicates as much. We also do not know who the next Supreme Court Justice will be. Keep in mind, 60 votes of the U.S. Senate will be needed for the U.S. Supreme Court Justice to even be considered. That said, the United States Supreme Court, even as currently configured, has not been a big fan of affirmative action lately, or anything resembling it. So, competitive bidding is something likely to appeal to the U.S. Supreme Court. Also, competitive bidding is definitely something likely to appeal to the new incoming president considering his business background and his well-known statements over the years of saying that the only thing he is interested in is the best person for the job.
- Correcting strategic errors are not grounds for a successful Rule 59(e) motion.
- Whether a person has a disability under the ADA doesn’t usually require extensive analysis.
- When dealing with cases of reassignment, the issue is entirely focused on whether the individual is a qualified person with a disability for the job that they are seeking. It of course assumes that the person is no longer qualified for the job they currently hold.
- 30 days for a person to find another job is a very tight timeframe and an aggressive policy by the employer. One thing this case shows, is that having a policy on reassignment of workers with disabilities is a must. It seems to me that this employer took a chance by being so aggressive in that it gave the employee little time to find a job and the employee had to do it all by herself. Preventive law suggests a better approach might be actively assisting the employee to find a suitable position.
- A plaintiff should take full advantage of what an employer offers with respect to finding other jobs in the company when they are no longer qualified in ADA parlance for their current job. Also, the employee would be wise to put off that vacation and take it while in between jobs rather than while the time is running out on their current job.
- If you are going to go with the competitive bidding route, my guess is that the Supreme Court will ultimately agree that you can comply with the ADA by using a competitive bidding process, as a preventive measure, it is a good idea to have your reasons in order as to why you hired other candidates and not the person with a disability seeking reassignment.
- Jury instructions are critical. Here, it should have been made clear that undue hardship is an absolute defense to ADA liability but if not shown, there can still be ADA liability regardless of whether the employer acted in good faith.
- Due to “the strategic errors,” of the EEOC in this case, I don’t think this case would be the best one to take up with the United States Supreme Court.
- Attorney fees is an interesting question. The plaintiff winds up losing despite getting a couple of favorable verdicts. But for the EEOC strategic errors, the plaintiff could have received equitable relief. Not sure about the equities in awarding attorney fees where the strategic errors were responsible for jettisoning the case and where the plaintiff did not have her own counsel.
- About that jury instruction… A jury instruction that gets it right so to speak like might look like this: 1) Did the employer fail to provide a reasonable accommodation by not assigning plaintiff to a particular job; 2) If yes, did the employer establish its affirmative defense that it made a good-faith effort to provide a reasonable accommodation; 3) If no, what is the amount of damages that should be awarded? 4) Regardless of the answer to whether the employer made a good-faith effort to provide a reasonable accommodation, did the employer establish its affirmative defense that the proposed accommodation would constitute an undue hardship?