convincing mosaic

Today’s blog entry is a case that I have blogged on before twice, here and here. On August 15, 2019, the 11^th Circuit came down with its second decision on this case, here. Since I have blogged on it before twice, there isn’t any need to cover the facts except through the court’s reasoning. The prior appeal to the 11^th Circuit just discussed the civil rights aspect of the case and not the ADA. This appeal to the 11^th Circuit discussed the ADA and revisited the civil rights claims. It also looked at municipal liability under §1983, which the court threw out. I don’t see a need to discuss the municipal liability section under §1983. Finally, there was a concurring and dissenting opinion. The concurrence agrees with dismissing the municipal liability claim and would have thrown out the ADA and civil rights claims as well. As usual, the blog entry it divided into categories and they are: court’s reasoning actual disability and regarded as; court’s reasoning qualified individual; court’s reasoning direct threat; court’s reasoning racial and gender discrimination claims; and takeaways. The reader is free to focus on any or all of the categories.

I

Court’s Reasoning Actual Disability and Regarded As

1. While plaintiff certainly had a physical or mental impairment with respect to her heart condition, she simply didn’t bring forth enough evidence to permit a conclusion that the physical impairment substantially limited a major life activity. For example, she testified that she had periodic shortness of breath, and her doctor testified that it could limit her ability to sleep. However, no evidence existed as to the severity, frequency, and duration of the episodes with respect to shortness of breath. Further, there wasn’t any evidence discussing the extent of plaintiff’s ability to sleep that could lead a reasonable jury to conclude she was substantially limited in a major life activity.
2. The ADA allows for a cause of action where the an employer regards an employee as having a disability.
3. Plenty of evidence existed to raise a genuine issue of fact as to whether plaintiff’s employer regarded her as having a disability. In particular: 1) Assistant Chief Brown in his June 17 letter referred to her chronic conditions and instructed her to complete FMLA paperwork thereby suggesting that he believed plaintiff had a medical condition warranting medical leave; 2) on July 1, Assistant Chief Brown prohibited plaintiff from returning to work until everything was cleared up with her doctor. He also said that her Dr.’s letter essentially made it impossible for her to work or be at work and concluded that she could not return until her doctor released her for duty. That email again referred to the possibility of plaintiff taking leave under FMLA; 3) the department’s own stated reason for putting plaintiff on leave, i.e. a fear for her safety in view of her heart condition, demonstrate the department’s belief that plaintiff’s medical condition set her apart from other police officers.
4. Looking to an EEOC guidance, an employer engages in prohibited conduct regarding a person as having a disability where it takes adverse action because it fears the consequences of an employee’s medical condition.

II

Court’s Reasoning Qualified Individual

1. A qualified individual under title I of the ADA is a person who with or without reasonable accommodation, can perform the essential functions of the employment position that he or she holds or desires.
2. Essential functions of the job are evaluated on a case-by-case basis after examining a number of factors. Courts do consider the employer’s judgment of whether a particular function is essential and may even cut the employer more slack when the employer is a Police Department. Courts also consider the EEOC seven factors as well.
3. The employer’s judgment as to what are the essential functions of the job is not by itself conclusive.
4. The city’s written job description for the position of detective nowhere mentions it is necessary for a detective either to carry or to be exposed to OC spray or a Taser shock. In fact, there is no such mention of any of that in an entire paragraph listing various physical demands of the job.
5. The work environment section states that a detective has to be willing to carry a firearm on and off the job and be mentally and physically capable of using deadly force if justified. However, it contains no reference to OC spray or Taser.
6. Plaintiff offered evidence that detectives previously were permitted the choice of what nonlethal weapon or weapons to carry. Further, neither party disputed that Taser International does not require trainee to receive a shock in order to become certified in Taser use.
7. Plaintiff clearly presented enough evidence to show that a jury would be justified in concluding that receiving a Taser shock or direct exposure to OC spray was not an essential function of her job. As a result, that means plaintiff was a qualified individual.
8. In a footnote, the court said that ample evidence existed that plaintiff could withstand indirect exposure to OC spray that would allow her to work inside the Police Department building if that option have been made available to her.

III

Court’s Reasoning Direct Threat

1. Plaintiff produced sufficient evidence that she is not a direct threat.
2. Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations. See 29 C.F.R. §1630.2(r).
3. Direct threat, as we have discussed previously here, has to be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job after considering, among other things, the imminence of the risk and severity of the harm. For this, the court specifically cited to Chevron USA Inc. v. Echazabal, which we discussed here and in numerous other blog entries as well.
4. The definition of direct threat requires an analysis of the individual’s ability to perform safely the essential functions of the job.

IV

Court’s Reasoning Racial and Gender Discrimination Claims

1. Previously, the 11^th Circuit sitting en banc concluded that plaintiff failed to establish a prima facie case of intentional discrimination under McDonnell Douglas because her comparators were not similarly situated in all material respects. Thus, that particular aspect of the ruling is binding on this panel.
2. Even without similarly situated comparators, plaintiff can still get by summary judgment if he or she presents circumstantial evidence creating a triable issue concerning the employer’s discriminatory intent. After all, not every employee can produce a similarly situated comparator. Further, a proper comparator may not exist in every workplace. Therefore, a plaintiff always gets by summary judgment if he or she can present a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination.
3. A convincing mosaic can be demonstrated in a variety of ways, including: 1) suspicious timing, ambiguous statements and other bits and pieces from which an inference of discriminatory intent might be drawn; 2) systematically better treatment of similarly situated employees; and 3) the employer’s justification is pretextual.
4. Plaintiff presented a mosaic of circumstantial evidence raising a genuine issue of material fact as set forth in the paragraphs that follow below.
5. Union City initiated plaintiff’s indefinite administrative leave on June 17 and informed her on July 1 that she would not be permitted to return to work until she was medically cleared. Yet a week later, and despite plaintiff’s request to return to work and the police chief’s explicit denial of that request, Union City terminated her for being absent without leave.
6. Union City gave plaintiff no warning that if she exercised the option to use her accrued leave instead of being on non-pay status, she would be terminated upon taking that option.
7. Union City gave her no notice she had to file FMLA paperwork by any specific date nor did the department’s written FMLA policy provide any such deadline.
8. At no time was plaintiff told she would be terminated if her doctor failed to contact the department on the very first day the doctor returned from vacation.
9. There is also plenty of evidence that Union City’s stated reason for firing plaintiff were pretextual as discussed in the following paragraphs.
10. Plaintiff can show pretext in any of the following ways: 1) casting sufficient doubt on the defendant’s proffered discriminatory reason so as to permit a reasonable factfinder to conclude the employer’s reasons were not what actually motivated its conduct; 2) showing that the employer’s articulated reason is false and that the false reason led to the discrimination; or 3) establishing that the employer failed to clearly articulate and follow its formal policies.
11. One of the reasons offered by Union City was that her medical condition was permanent. However, evidence exists suggesting the department believed either that plaintiff was faking her medical condition or that her condition was not sufficiently serious to prevent her from working as a detective. In fact, the initial letter placing plaintiff on leave stressed that she had been cleared for full duty without restrictions after a heart attack and emphasized that the letter disclosing her chronic condition came as a surprise.
12. Plaintiff’s doctor testified that the Assistant Chief made clear to plaintiff’s doctor in a telephone conversation that he thought her letter was more a product of plaintiff’s influence than her unbiased medical judgment. In fact, the Assistant Chief at his deposition testified that he doubted plaintiff’s doctor truthfulness more generally.
13. Two of Union City’s police chief’s letters could reasonably be construed as indicating that plaintiff’s doctor would ultimately clear plaintiff for duty and that the medical condition, in the department’s view would not permanently prevent plaintiff from doing her job as a detective.
14. Plenty of evidence exists that the argument that plaintiff did not timely submit her paperwork was just a pretext.
15. Evidence existed permitting the conclusion that two Caucasian officers in a similar situation to plaintiff were treated differently. However, the white officers were treated more favorably than the plaintiff because they were given extended periods of time to attempt to demonstrate their physical ability they needed, but plaintiff was fired without warning.
16. A reasonable jury could find that Union City did not consistently exercise its authority in placing physically unfit officers on administrative leave and that Union City did not comply with its own policies.
17. One Caucasian officer was offered a transfer to a position not requiring him to continue taking the fitness test that he failed while plaintiff was fired without notice after 21 days of administrative leave and was offered no such alternative assignment before termination.
18. Union City had a history of working with others with a heart condition to allow them to receive a milder version of Taser training with respect to officers with heart conditions but that option was never offered to the plaintiff.
19. A Union City Lieutenant testified that the department treated women differently than men with regards to the cases assigned to them.
20. Plaintiff by her termination undoubtedly suffered an adverse action i.e. a change in the terms of her employment.

V

Takeaways

1. A regarded as cause of action does not require a substantial limitation on a major life activity. Thanks to the amendments to the ADA, it only requires the employer regard the person as having a physical or mental impairment.
2. The employer’s judgment as to what the essential functions of the job is not the be-all and end-all of things.
3. Keep your written job descriptions current.
4. Antidiscrimination policies for dealing with people with disabilities are always a good idea. Also, make sure those policies are implemented without favoritism and in a consistent manner. Keep in mind, when it come to the ADA, consistently doing an individualized analysis is where you need to go.
5. I’ve seen many folks get hung up on direct threat because they don’t read Chevron v. Echazabal. Remember, direct threat has to be based on a reasonable medical judgment relying on the most current medical knowledge and or the best available objective evidence. It also needs to be based upon an individualized assessment as well. I have also seen lots of entities make a mistake by not doing the individualized assessment.
6. This isn’t the first time we have seen convincing mosaic. We saw it here. What is interesting in this case, is that the 11^th Circuit says that convincing mosaic is a fallback were no comparators exist. In the Seventh Circuit, as we discussed previously, convincing mosaic is another way to deal with McDonnell-Douglas regardless of whether the proof is indirect or direct.
7. Insisting on a full return to work is always a bad idea. We discussed that issue here.
8. Remember, otherwise qualified/qualified is a question of whether the individual can do the essential functions of the job with or without reasonable accommodations.
9. Convincing mosaic is a fairly new idea. It will be interesting to follow what happens from here on out. Expect the United States Supreme Court to deal with it eventually.
10. The 11^th Circuit nicely lays out what is needed to show it convincing mosaic and what is necessary to show pretext.