Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

adverse employment action

Direct Evidence is a Smoking Gun

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Smoking Gun

Today’s blog entry discusses two cases, both dealing with smoking guns (hence, the cannon above).

One is from the Sixth Circuit, Baum v. Metro Restoration Services, Inc., Decided on April 11, 2019. The other is EEOC v. Crain Automotive Holdings LLC from the Eastern District of Arkansas, also decided on April 11, 2019. As usual, the blog entry is divided into categories, and they are: Crain’s facts; Crain’s reasoning; Crain’s takeaways; Baum’s facts; Baum’s reasoning; and Baum takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Crain Facts Taken Directly From The Opinion

Judith Vaughn began working for Crain Automotive Holdings, LLC in the fall of 2016. Vaughn suffers from anxiety, depression, and panic attacks. Late in the day on Monday, January 30, 2017, Vaughn began experiencing chest pains and went to the emergency room, fearing she was having a heart attack. After two days of treatment Vaughn learned her chest pain had been the result of a panic attack. She ultimately reported back to work on Friday, but she began experiencing a panic attack and left work, after emailing her supervisor. When Vaughn returned to work the following Tuesday, she met with two supervisors, Kim Lynch and Debbie Pumphrey, and was terminated. According to Vaughn, she was told at this meeting that “it was not working out” due to her health problems and that she needed to take care of herself.

II

Crain’s Reasoning

  1. McDonnell-Douglas only applies where a plaintiff does not have direct evidence of discrimination.
  2. Direct evidence is evidence showing a specific link between the discriminatory intent and the adverse employment action sufficient for a reasonable jury to find an illegitimate criterion actually motivated the adverse employment action.
  3. Where direct evidence of discrimination exists, a plaintiff gets to the jury based on that evidence alone.
  4. No dispute that Vaughn has anxiety, depression, and panic attacks. With respect to her panic attacks, those attacks make her feel paralyzed, cause chest pain, and cause difficulty with breathing, thinking, communicating with others, and reasoning. Her anxiety causes her to have difficulty breathing and communicating and an inability to think coherently. Finally, when her depression is active, she is unable to care for herself, communicate with others, or think coherently.
  5. It doesn’t matter that Vaughn can perform some demanding activities and that she does not have panic attacks constantly because an impairment substantially limiting one major life activity does not need to substantially limit other major life activities in order to be considered a substantially limiting impairment. Also, episodic impairments are a disability when they substantially limit a major life activity when active. Finally, Toyota Motor’s definition of substantial limitation was overruled by the amendments to the ADA [my words, but what the court essentially said].
  6. The evidence presented by the EEOC makes clear that Vaughn’s employer was on notice that she had anxiety, depression, and had suffered a panic attack. She also had put the employer on notice that she had had a heart catheterization. Accordingly, a reasonable jury could find that when Vaughn was fired the following Tuesday, the employer certainly knew about her anxiety, depression, and panic attacks. Further, the jury could find that the employer had some knowledge of the extent of Vaughn’s impairments as they had caused her chest pain resulting in a heart catheterization as well as missing several days of work.
  7. Actions or remarks by employers reflecting a discriminatory attitude or comments that demonstrate a discriminatory intent (the legal jargon is animus), in the decisional process, or comments made by individuals closely involved in employment decisions may all constitute direct evidence of discrimination.
  8. At the meeting between Vaughn and her two supervisors to talk about why she had left work early, Vaughn was specifically told that “due to her health, it wasn’t going to work out and she should take time for herself.” If believed by the jury, and it is the jury’s call, the comment is direct evidence of discrimination that would enable a jury to find the employer motivated by Vaughn’s disability when it fired her.
  9. The supervisor’s comment is a far cry from stray remarks in the workplace for several reasons: 1) it was made during the meeting in which Vaughn was fired; 2) it was made by Vaughn’s supervisor; 3) it relates directly to the decision to fire the plaintiff; and 4) no reason exists to suspect that the suggestion that the Vaughn should take care of her health or take time for herself was made with the intent of attempting to preserve and promote her as she was fired in the same conversation.
  10. Magic words are simply not required when it comes to requesting a reasonable accommodation. Instead, all a plaintiff has to do is make clear to the employer that he or she wants assistance for his or her disability. That is, an employee only needs to provide the employer with enough information that, under the circumstances, the employer can be fairly said to know about the disability and the desire for an accommodation. A question of material fact exists here because plaintiff produced an email in which she stated that a letter from her doctor was attached.

III

Crain Takeaways

  1. This whole direct evidence/indirect evidence gets really confusing. Previously, I talked about that confusion and how Seventh Circuit may or may not have have done away with the whole thing.
  2. Whether you are going with direct evidence or indirect evidence, it is clear that mixed motive is involved as both tests use motivating factor.
  3. The amendments to the ADA change what substantial limitation means and it also changed dealing with episodic impairments.
  4. Labor and employment lawyers are quite fond of saying that magic words are not required. The problem is what does that exactly mean? This case does a real nice job of presenting a standard for when a reasonable accommodation request has been made where magic words are not used. In particular, all the employee has to do is make clear to the employer that he or she wants assistance for his or her disability. That, is also vague, but the court goes further when it says, citing to an Eighth Circuit case, “an employee need only provide the employer with enough information that, under the circumstances, the employer can be fairly said to know about the disability and desire for an accommodation.”

IV

Baum Facts Taken from the Opinion

A few months after Plaintiff Jonathan Baum began having heart problems, his employer, Defendant Metro Restoration Services, fired him. Not only that, Metro’s owner told him he was losing his job because of his health issues. So, Baum sued for disability discrimination, and the district court granted summary judgment in Metro’s favor after concluding that Baum couldn’t establish he was disabled.

Metro repairs property damage after catastrophic events such as storms and fires. In 2013, the company hired Baum as a scheduler. As the job title suggests, Baum determined which of Metro’s work crews would go to which job sites and when they would go. In late 2014, Baum began having heart problems. Over the course of several months, he went to the emergency room fearing he had had a heart attack; had a CAT scan; had a heart catheter implanted; had an echocardiogram (which outlines the heart’s movement using high-frequency sound waves); and wore a heart monitor for more than a month. During this time, he occasionally missed work for medical tests and treatments. He also worked remotely sometimes. He kept his boss and owner of Metro, Patrick Cahill, informed of his medical issues. One weekend in the spring of 2015, severe weather hit. Baum worked remotely to coordinate Metro’s crews. The next week, Cahill went to Baum’s home and fired him. During their conversation, Cahill said he was firing Baum “due to [Baum’s] health issues and doctors’ appointments.” Baum then sued Metro in state court for disability discrimination under both the Americans with Disabilities Act and Kentucky law. Metro removed the case to federal court.

V

Baum Court’s Reasoning

  1. Cahill’s statement that he was firing the plaintiff because of his health issues is direct evidence of discrimination.
  2. Since direct evidence of discrimination exists, plaintiff has to show that: 1) he has a disability; and 2) he is otherwise qualified for the job despite the disability either without accommodation, with an alleged essential job requirement eliminated, or with a proposed reasonable accommodation. (For the labor and employment lawyer really familiar with the ADA, I know what you are thinking. This is not a misprint).
  3. Metro never contested plaintiff’s qualifications for the job without accommodations, and therefore, forfeited the argument by failing to raise the argument earlier than at oral argument.
  4. Expert testimony is needed to show whether the plaintiff is substantially limited in the major life activities of cardiovascular and circulatory functions because cardiovascular and circulatory functions require medical knowledge to understand.
  5. Absent medical expert testimony, the plaintiff can’t create a factual issue of whether he has a disability. Accordingly, summary judgment was correctly granted on that score.
  6. With respect to the perceived disability claim, a plaintiff does not need to prove a limitation on a major life activity.
  7. Cahill’s words v. the plaintiff’s word creates a classic credibility dispute that is a task for the jury.
  8. While it is true that Cahill’s knowledge of plaintiff’s medical issues is not sufficient to carry the day, plaintiff has more than that here. In particular, he has Cahill’s stated reason for firing him: his health issues and doctors appointments. That statement creates a factual dispute and makes it material. Accordingly, giving the plaintiff the benefit of the doubt, which a court has to do at the summary judgment stage, a jury could find that Cahill meant exactly what he said. If the jury found such, then it could also find that Cahill perceived the plaintiff to have a physical impairment and fired him because of that perception.

VI

Baum Takeaways

  1. I am completely mystified by the court saying that one of the ways to show a plaintiff is otherwise qualified is to show that he can do the job with an essential job requirement eliminated. That simply isn’t the way the ADA works. The ADA does not require an employer to eliminate essential job functions. An employer may be required to engage in job restructuring, which we discussed here. They also may want to move marginal functions to others. That said, job restructuring and putting marginal functions on others are not the same as eliminating essential job requirements.
  2. If you have an argument, raise it early. We just discussed that problem here.
  3. A person may lose an actual disability case, but may be able to go forward on a regarded as claim.
  4. Sometimes you need expert medical testimony to establish whether a substantial limitation on a major life activity exists even though what is a substantial limitation on a major life activity is a much easier standard to meet since the amendments to the ADA.
  5. Direct evidence must be material to the adverse action.

A comment that applies equally to Baum and to Crain is that smoking guns are rare, but they do happen.

Dog in Apartments, Hostile Work Environment and the ADA, and Scared of Needles

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Today’s blog entry is a triple play. In the first, we will go over an advice column and discuss what they got wrong and what they got right. In the second and third situation, we will briefly discuss two cases that came down from the Second Circuit recently: dealing with hostile environment under the ADA claims; and dealing with essential functions of the job. As usual, the blog entry is divided into categories and they are: the advice column; the hostile work environment case/takeaways; and the pharmacist who is afraid of needles case/takeaways. The blog entry is pretty short, and so, you probably will want to read the whole thing, but you certainly don’t have to.

I

In an Ask Sam column, which can be found here, a reader asked the question whether as the owner of a rental property, just what were the rules for service dogs on the premises since obviously not all requests were coming in for service dogs.

  1. The column gets it right that landlords may not discriminate against a tenant with disability regarding the leasing of a property because the person with a disability has a service animal. I am presuming the column is talking about a residential unit and not a place of business.
  2. The column also gets it right that North Carolina has a system for registering service animals.
  3. The column gets it right that a landlord cannot assess a pet fee for a service animal, and that the tenant is responsible for any damage to the leased premises caused by the service animal.
  4. The column more or less gets it right when it talks about what is the definition of a service animal. For that, see this blog entry. It does get it right with respect to examples of what might be a service animal.
  5. The column gets it wrong in saying that registration with North Carolina is necessary in order to have permission for a service animal to be in the unit. Federal law, in this case the Fair Housing Act, trumps state law and federal law contains no such requirement.
  6. The column gets it wrong in a big way when it says that comfort animals, which presumably includes emotional support animals, do not qualify as a service animal under either the ADA or the North Carolina statute, AND therefore, in those situations the landlord can enforce a no pet policy. The first part of this sentence is correct but since it is dependent upon the second part of the sentence, the whole thing fails. As we know from our blog entries, the Fair Housing Act, which is the law that applies to residential unit being leased, specifically allows for emotional support animals as an assistance animal. Failure to get this right can cost you big time, as we discussed here.

II

Hostile Work Environment Case and Takeaways

Two labor and employment bloggers do a real nice job discussing the hostile work environment case. Those blogs are Bergstein and Ullrich’s Wait a Second blog (Wait a Second also blogged on the scared of needles case as well), in my blog roll and which can be found here, and Fisher and Broyles Employment Law blog, here. As everyone knows, if other people blog on the case, I may blog on it as well if I can add a perspective to it, and so, here goes.

In Fox v. Costco Wholesale Corporation, the Second Circuit was faced with the question of deciding whether a hostile work environment claim flies (it does and questions of fact existed to defeat summary judgment), with respect to the ADA. The Second Circuit reasoned as follows:

  1. The 4th, 5th, 8th, and 10th Circuits have all held that the ADA supports a hostile work environment claim.
  2. Under the ADA, a covered employer shall not discriminate against a qualified individual on the basis of disability in regard to terms, conditions, and privileges of employment. That language is borrowed from title VII, which has very similar language. Therefore, when Congress used that language, it was using a legal term of art that prohibited a broad range of employment practices, including workplace harassment.
  3. When the ADA was enacted, the United States Supreme Court had already twice concluded that title VII provided for hostile work environment claims.
  4. Title VII and the ADA share a purpose to prevent discrimination against a defined class of people. Since the two statutes share a common purpose and the ADA echoes and expressly refers to title VII, it necessarily follows that people with disabilities should be able to assert hostile work environment claims in the same way people without disabilities can assert title VII claims.
  5. A person alleging a hostile work environment claim under the ADA must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of the working environment. That analysis is a totality of the circumstances test.
  6. Plenty of evidence existed to create a question of fact as to whether the plaintiff endured a hostile work environment.

Takeaways;

  1. The plaintiff in this case had Tourette’s syndrome as well as obsessive-compulsive disorder since birth. The plaintiff did certain things in order to compensate for that disability, and fellow employees simply didn’t get it. Further, they mocked him for it.
  2. You don’t need an adverse employment action for a hostile work environment claim. Rather, you just have to show an alteration in the conditions of the working environment. They are not at all the same thing. Indeed, here the court finds that a hostile environment could well have existed even though no adverse action occurred.
  3. Perhaps, a Circuit Court split will develop on the issue of whether the ADA allows for a hostile work environment claim. However, I think it is just as likely that no such split will ever occur. Also, if it ever gets to the United States Supreme Court, I can’t imagine the Supreme Court – even with it being an employment case and even with this makeup of the court- saying no to such claims, but who knows.
  4. When it comes to hostile work environment and persons with disabilities, it will be very important for a plaintiff to be able to show the judge what was in the mind of the plaintiff as he or she had to endure all these things. It isn’t necessarily going to be obvious. Plaintiff may want to consider using expert testimony on that.
  5. When problems like this surface, don’t wait months to deal with it. Get on it immediately.

III

The Pharmacist Who Simply Can’t Give Shots

In Noel v. Walmart Stores, East LP, the Second Circuit was faced with the question of whether a motion to dismiss should be affirmed where a pharmacist who had a fear of needles would not give out shots to consumers wanting flu shot and other shots. The Second Circuit held that dismissing the case was not right and gave the following reasons:

  1. When Walmart announced that all pharmacy employees had to administer immunizations, plaintiff specifically sought an accommodation. Walmart in response sent the plaintiff a letter informing him that his request had been granted, that he was capable of performing the essential functions of the position, and that they were reasonably accommodating his disability. While the letter did note that the accommodation was subject to further review, including any changes in the job description, the job description was never altered at any time following receipt of the letter.
  2. When considering whether a job function is essential, the court noted the seven factor test laid out by the EEOC. However, the court notes that in these situations it is up to the court to conduct a fact specific inquiry into both the employer’s description of the job and to determine how the job is actually performed in practice.
  3. At the time of plaintiff’s constructive discharge, the job description had yet to change.
  4. The only way to arrive at the conclusion reached by the District Court dismissing the case was to discredit the plaintiff’s well pleaded allegations and discount Walmart’s own letter. That is not something that can be done on a motion to dismiss.

Takeaways:

  1. Employers are under no obligation to waive essential functions of the job. However, employers do have to consider restructuring of the job, which we discussed here.
  2. Keep job descriptions current. That is, if you do change the essential functions of the job, make sure the job description changes with it.
  3. Regardless of what is in the job description, the critical question is what is occurring on the ground. So, figure out some way to periodically review job descriptions and compare them to what is actually happening.

 

 

Does a Failure to Accommodate Claim Require an Adverse Action?

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Today’s blog entry will be the last substantive blog entry of the year. Next week, is the annual Understanding the ADA greatest hits for 2018. This week’s case deals with the question of what happens when you have both a failure to accommodate and a lack of adverse action. Is the plaintiff out of luck? The case of the day is Exby-Stolley v. Board of County Commissioners, Weld County, Colorado. It came down from the 10th Circuit on October 11, 2018. As usual, the blog entry is divided into categories and they are: facts; majority opinion; dissenting opinion; and takeaways. The reader is free to focus on any or all of the sections.

I

Facts

The facts are pretty straightforward and are covered in great detail in the opinion. Basically, you have a person that broke her right arm on the job leading to two surgeries. That led to an interactive process that did not satisfy the plaintiff and perhaps miscommunication as well. Instead of pursuing the interactive process to the end, plaintiff resigned. Nevertheless, plaintiff brought suit alleging violations of the ADA. At trial, the jury found that the plaintiff had a disability, but also found that the plaintiff had not proven by a preponderance of the evidence that she was discharged from employment. That is, the jury bought the county’s argument that the placement of plaintiff on temporary half-time office duty was not an adverse employment action because she fully agreed with the change, and there was no reduction in pay since the reduction was offset by workers compensation payment. Also, the county took no later action against her because she voluntarily resigned.

II

Majority Reasoning

  1. An adverse employment action is an element of a failure to accommodate claim.
  2. 42 U.S.C. §12112(a) says a covered entity cannot discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condition, and probative of employment. So, any discrimination has to be in regards to certain features of employment.
  3. While the language adverse employment action does not appear in the ADA, the terminology is well established in judicial opinions when it comes to the Civil Rights Act of 1964, which has a very similar provision with respect to its antidiscrimination clause.
  4. An adverse employment action is one that materially affects the compensation, terms, condition, or privileges of employment.
  5. In a footnote, the court said that “terms and conditions,” appearing in the ADA’s statutory provisions is very significant because it was the lack of that language that led the United States Supreme Court to say a retaliation claim could be based upon any action, whether or not significant to the employee’s job, that a reasonable employee would have found to be materially adverse.
  6. The failure to accommodate statutory provision doesn’t change the terms and conditions requirement. Rather, it just sets forth that an employee does not have to show she was treated worse than a person without a disability when he or she brings a failure to accommodate claim. That is, even after proof of the failure to accommodate, the requirement that discrimination be in regard to job application procedures or other terms, condition, or privileges of employment remains.
  7. For those who don’t believe an adverse employment action is required for a failure to accommodate claim, they may be just getting confused by the McDonnell Douglas burden shifting framework, which has to be modified in order to apply to failure to accommodate claims.
  8. Since McDonnell Douglas can only apply to discriminatory failure to hire, courts have modified the test to other circumstances by saying that the employer took an adverse employment action.
  9. While proving a failure to accommodate claim does not involve showing a person with a disability is treated worse than a person without a disability, that hardly means none of the requirements set forth in McDonnell Douglas apply to failure to accommodate claims. That is, McDonnell Douglas enables the plaintiff to prove her claim in its entirety, not just that she was treated worse than people not in her protected class.
  10. The reason to require that the discriminatory act involves an adverse employment action is because not every discriminatory act by an employer entitles an employee to a remedy under the employment discrimination statutes. The discriminatory act must be in regard to, or with respect to, the terms or conditions of employment. In fact, there could be a failure to accommodate that does not result in termination and is not otherwise connected to an adverse employment action. Mere inconvenience or an alteration of job responsibilities is not an adverse employment action.
  11. Once it is recognized that requiring an adverse employment action simply means requiring the discrimination be in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment, it necessarily follows that the requirement applies to every discrimination claim under the ADA, including failure to accommodate claims. Cases cited by the dissent to the contrary are dicta.
  12. Several Circuits have explicitly required an adverse employment action in failure to accommodate cases (1st, 2d Cir., 7th Cir., 8th Cir., and 9th Cir.).
  13. In a footnote, the court said that it is unlikely an employee would pursue a failure to accommodate claim when there is no adverse employment action.

III

Dissenting Opinion by Judge Holmes

  1. It was reversible error for the judge to instruct the jury that an adverse employment action element is required for failure to accommodate claims under the ADA.
  2. The cases the majority said are dicta are not dicta at all.
  3. The 10th Circuit has previously distinguished between ADA discrimination claims based upon a disparate treatment theory and those based upon a failure to accommodate theory making clear the content and structure of its analysis that it is only the disparate treatment theory that includes an adverse employment action element. The court’s disregard of an adverse employment action in that case was intentional because an adverse employment action was irrelevant in applying the standards defining whether an employer had met its reasonable accommodation obligations.
  4. The majority’s confusion stems from its failure to clearly differentiate between disparate treatment and failure to accommodate claims with the former requiring an adverse action showing, but not the latter.
  5. In a failure to accommodate case, the purpose of the plaintiff’s prima facie case is not to raise a rebuttable presumption of discriminatory intent, but rather to determine the factual question of whether the employer complied with the statutory obligations to provide reasonable accommodation.
  6. Any failure to provide reasonable accommodation for a disability is necessarily because of a disability. That is, the accommodations are only deemed reasonable if they are needed because of the disability and no proof of particular discriminatory intent is necessary.
  7. In a footnote, the dissenting judge said that the EEOC in its regulations and interpretive guidance on the ADA also suggests that an adverse employment action is not an element of failure to accommodate claim. In particular, it says that once the plaintiff has shown the accommodation he or she needs is reasonable, the burden shifts to the defendant to provide case specific evidence proving the reasonable accommodation would cause an undue hardship. Nowhere in that language is there any adverse action requirement.
  8. Congress has already determined that a failure to offer reasonable accommodation to a qualified employee with a disability is unlawful discrimination.
  9. In a footnote, the dissent said that it doesn’t make a lot of sense that federal judges would cavalierly tolerate the serious risks going with omitting an essential element of a claim from their decisions as that would mislead the public and the lower courts regarding the state of the relevant ADA law. Instead, the dissent believed that the omission of adverse employment action from the elements necessary for proving a failure to accommodate claim, was intentional. It defies logic to suggest otherwise.
  10. It doesn’t follow that the language in 42 U.S.C. §12112(a) pertaining to other terms, conditions, and privileges of employment is necessarily a shorthand for an adverse action requirement and case law is not to the contrary.

IV

Takeaways

  1. Reading this decision is very strange. The majority and the dissent reach opposite conclusions interpreting the same exact case law and the same exact statutory provisions. In my experience, you usually don’t see such a stark differentiation that way.
  2. I certainly look for a split to develop among the Circuits considering the ambiguity of case law and the statutory provisions. It would be very unclear as to what would happen at the United States Supreme Court with respect to the question of whether a failure to accommodate claim involves an adverse action. It is true that persons with disabilities have not fared well at the Supreme Court in employment matters, but a failure to accommodate may or may not resonate differently.
  3. It is not as unlikely as the majority seems to suggest that a failure to accommodate claim does not involve an adverse action. It happens more often than you would realize, especially if the employer has far thinking management counsel, and the employer is well trained on the rights of people with disabilities.
  4. I also don’t see how the language of “in regards to…,” necessarily requires an adverse action, particularly since adverse action is not the same thing as any action.
  5. If this decision prevails, plaintiff lawyers will have to get creative in their advocacy to show that a failure to accommodate a person with a disability has very serious consequences to the person with the disability and is certainly adverse. This means a plaintiff lawyer will have to educate the judge as to how the person with the disability perceives what happens in a failure to accommodate case and how the consequences of failing to accommodate are very real indeed.
  6. It will be also interesting to see how other courts deal with the issue of many Court leaving off an adverse employment action from their listing of what is required in the prima facie case approving a failure to accommodate claim. The majority passes that off as dicta, while the dissent views those omissions as critical.
  7. For plaintiffs, education about the mindset of a person with a disability is going to be absolutely critical. If you are on the defense side, this case gives you lots of leeway to make sure that a plaintiff with a disability continues in the same way as they are in their current employment in some manner or another until the interactive process is fully completed.
  8. This case could have been handled completely differently by the court. That is, instead of focusing on adverse action, the court could have found that the plaintiff was responsible for the breakdown in the interactive process by resigning and therefore, the defendant prevails.
  9. For a case involving a failure to accommodate where adverse action is never mentioned and certainly seem to not be part of the equation, we have already talked about one, Silva v. Baptist Health South Florida Inc., which we discussed in this blog entry.