convincing mosaic

Failure to Accommodate, Direct Evidence, and Adverse Action

December 10, 2019 by William Goren Leave a Comment

Today’s blog entry is going to be my last substantive blog entry of the year. My daughter is on break the last two weeks of December, and just about everybody takes the Christmas season off anyway. The very last blog entry of the calendar year is when I traditionally do my top 10 Understanding the ADA blog entries of the year. I have not been following what is the top 10 from month to month. So, I am really curious to see how that is going to work out.

Today’s blog entry is actually on a case that my fellow bloggers have blogged on before. This particular case involves blogging on a case that my colleague Jon Hyman blogged on previously here. The case is Morrissey v. Laurel Healthcare Company, a published decision from the Sixth Circuit decided on December 3, 2019. Jon did an excellent summary of the facts and his takeaways are excellent as well. I thought I could bring a different spin to his blog entry and so here goes. As usual, the blog entry is divided into categories and they are: court’s reasoning; and thought/takeaways. I am going to dispense with the facts except as far as they are part of the court’s reasoning because Jon already covered them in brief in his blog entry.

Court’s Reasoning

The McDonnell Douglas test is not necessary where there is direct evidence because defendant has already admitted the wrongdoing. Where direct evidence exists, the factfinder is not required to draw any inferences to conclude that disability was at least a motivating factor.
Since not making reasonable accommodations is listed in the ADA’s definition of disability discrimination, claims premised upon an employer’s failure to offer reasonable accommodation necessarily (emphasis mine), involve direct evidence.
Under the direct evidence framework, a plaintiff has the burden of establishing: 1) he or she is a person with a disability; and 2) that he or she is qualified/otherwise qualified for the position despite his or her disability: A) without accommodation from the employer; B) with an alleged essential job requirement eliminated; or C) with a proposed reasonable accommodation.
With respect to this case, plaintiff alleged a failure to accommodate and a constructive discharge claim under the direct method and a retaliation claim under the indirect method.
The District Court erred in requiring plaintiff to prove she suffered an adverse employment action to pursue a claim for failure to accommodate. Under the direct evidence test, a plaintiff need not prove he or she suffered an adverse employment action separate from the failure of the employer to reasonably accommodate the employee. In other words, failing to make a reasonable accommodation falls within the ADA’s definition of discrimination and that necessarily means an employer’s failure to offer a reasonable accommodation involves an adverse action.
Of course, to establish a claim for failure to accommodate, a plaintiff has to show that he or she has a disability first.
A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or is regarded as having such an impairment. 42 U.S.C. §12102(1)(A)-(C).
The amendments to the ADA defined major life activities in very broad terms. 42 U.S.C. §12102(2).
The amendments to the ADA also makes clear that the definition of a person with a disability in the definition of substantially limited are to be construed broadly in favor of expansive coverage. 29 U.S.C. §12102(4)(A),(B); 29 C.F.R. §1630.2(j)(1)(i).
Under 29 C.F.R. §1630.2(j)(1)(ii), determining substantial limitation mean comparing the person with a disability to most people in the general population. That is not a demanding standard and in general, a plaintiff does not need to submit scientific, medical, or statistical proof to establish such a limitation.
The amendments to the ADA overruled the Toyota Motor standard that an impairment had to prevent or significantly or severely restrict a major life activity to be substantially limiting.
The EEOC removed from the text of its regulations a discussion of the major life activity of working because Congress intended for courts to analyze whether plaintiff can perform certain jobs only when a plaintiff claims she is substantially limited from working but not for other major life activities. Also, no other major life activity received special attention in the EEOC regulations and with the expanded definition of major life activity in the ADA, the major life activity of working would only be used in very targeted situations.
Pre-2008 cases are not good law when it comes to determining whether a plaintiff is a person with a disability.
Numerous facts exists that plaintiff has a disability as defined by the ADA as amended, including: 1) plaintiff asserted she was substantially limited in her ability to walk, stand, bend, and lift repetitively due to scoliosis, bulging disc, Ehlers- Danlos syndrome, Buschkes-Ollendorf syndrome; 2) plaintiff never argued that she had a disability because of an inability to work and such an allegation is not necessary to her claim; 3) plaintiff did not have to tell her employer about her specific diagnosis; 4) plaintiff did tell her employer that she could not work more than 12 hours per shift because she suffered a disability as defined by the ADA as amended.
For an employer’s obligation to activate the duty to accommodate, the employee does not need to use the word “disabled,” rather the employer must know enough information about the employee’s condition to conclude that he or she is a person with a disability. Information that could help figure out whether a person has a disability under the ADA could include such things as a diagnosis, treatment plan, (severe symptoms,) and physician imposed work restrictions.
Medical records establish that the plaintiff suffered from disc disease.
Plaintiff submitted plenty of evidence to show that she was substantially limited in her ability to walk, stand, lift, or bend. In particular, after an 8 to 12 hour shift: 1) plaintiff had difficulty walking, standing, lifting, and bending; 2) plaintiff was in pain constantly and her nursing shifts made the pain worse; 3) plaintiff had severe pain in her buttocks and right leg and numbness and tingling in her feet; 4) plaintiff had so much trouble bending over that it was difficult for her to put on her underwear; 5) plaintiff’s daughter submitted an affidavit stating that plaintiff did not walk at all or walked with a slight hunch and a pained expression after completing a day of work; 6) plaintiff’s daughter also stated that plaintiff could not complete household chores requiring lifting, bending, or stooping after working.
Factual issues exist as to whether defendant regarded plaintiff as having a disability.
Defendant had a policy where it would not accommodate an individual with a disability unless the injury was job-related.
Plaintiff alleged that she requested moving to a unit that required nurses to work only eight hour shifts and that she requested to be moved to a casual status. If granted, she would not have had to work in excess of 12 hours. Plaintiff alleged that the defendant denied both requests.
Plaintiff’s personnel file had medical notes supporting her restrictions. She also repeatedly told her employer that she was under restrictions. For a time, the employer even honored the restrictions. So, plaintiff brought forth enough evidence to claim that she has a record of a disability under the ADA.
In short, plaintiff brought forth enough evidence to show that: 1) her employer had a blanket policy of denying accommodation for all non-work-related disabilities; 2) her employer knew that the plaintiff was under a 12 hour work restriction; 3) (employer knew that plaintiff had requested an accommodation); 4) her employer forced plaintiff to work beyond the restrictions on January 31, 2016, and attempted again to have her do so five days later.
Plaintiff asked her employer for an accommodation due to a disability, and her employer did not accommodate her. So, plaintiff was not required to establish anything more for her claim to be viable.
Defendant makes no argument that plaintiff’s proposed accommodation would impose an undue hardship.
The de minimis employment action defense does not apply to a failure to accommodate situation. Application of such a rule would not only be cruel, but it would contravene previous precedent from the Sixth Circuit as well as the ADA.
The constructive discharge claim moves forward because a disputed question of material fact exists over whether the plaintiff had a disability (see above paragraph). The constructive discharge claim also moves forward because a complete failure to accommodate in the face of repeated requests can suffice as evidence to show constructive discharge.
The employer cannot escape liability by arguing a blanket policy of denying accommodation for all non-work-related disabilities is ostensibly neutral. The court uses an interesting example of a school lacking an elevator for a teacher with mobility impairments to explain what it means. It then concludes that a defendant cannot refuse to provide a plaintiff with a reasonable accommodation and then argue the plaintiff did not qualify for her position because she cannot meet her job’s requirements without an accommodation.
The retaliation claim gets analyzed under the indirect evidence test. To establish retaliation the plaintiff has to show: 1) plaintiff engaged in activity protected under the ADA; 2) the employer knew of that activity; 3) the employer took an adverse action against plaintiff; and 4) a causal connection existed between the protected activity and the adverse action.
Constructive discharge qualifies as an adverse employment action and the record supports a finding that plaintiff was constructively discharged.

Thoughts/Takeaways

It doesn’t matter how a person becomes a person with a disability. I have seen employers think that it does. The very nature of the ADA makes it obvious that how a person becomes a person with the disability is absolutely irrelevant. It is great to see a court saying as much. Interesting that the court looked at it from the view of essential functions. It just as easily could have flat out said it doesn’t matter how a person becomes a person with a disability. Regardless, you get to the same place either way.
Under the court’s reasoning, failure to accommodate claims are analyzed under the direct evidence test, which means that it could be very difficult for defendants to prevail on summary judgment with respect to failure to accommodate claims.
Under the court’s reasoning, failure to accommodate claims do not require an independent adverse action. That is, the failure to accommodate is the adverse action.
This whole direct indirect evidence thing is very confusing, even for me. As we discussed here, the Seventh Circuit is more than ready to blow that whole analysis up completely.
This case is now the second time where I have seen a prima facie for a failure to accommodate claim talk about how a plaintiff can show that they could have performed a job with an essential job requirement eliminated. I’ve said before with respect to this element that I just don’t get it. The ADA does not require the elimination of an essential function of the job.
I’ve also said before that working is not a major life activity that should be used by plaintiffs except under extraordinary situations. The court here says precisely that. In fact, unless extraordinary situation exists, my view for years has been for a plaintiff to allege working as the major life activity is legal malpractice.
Magic words are not required as we have discussed here. All that is required is for the employer to have enough information about the employee’s condition to conclude that the employee has a disability. That is not a high standard.
When it comes to determining substantial limitation, the question is how does that person compare to most people in the general population.
If you have a policy setting up a distinction as to when you will accommodate based upon the origin of the disability, get rid of it.
De minimis employment action defense not available in the Sixth Circuit with respect to a failure to accommodate claim. Check your jurisdiction to see how it handles this question.
The reasoning of the court is such that it open the door to many more constructive discharge claim when a failure to accommodate is involved. The court uses the language “complete failure,” but the decision itself doesn’t seem to be talking about a “complete failure,” being necessary for a constructive discharge claim. Jurisdictions may vary on this.
Court says that retaliation claim can analyze under an indirect evidence test, though I don’t know why that would necessarily need to always be the case.
What Jon said in his blog entry on the case.
The decision is published.
The Sixth Circuit presumes in this case that motivating factor is the causation standard.
Not every court agrees that a failure to accommodate constitutes an adverse action. We discussed one such case here. So, check your jurisdiction on this. This also means a split now exist among the Circuits. Will that split result in Supreme Court review? If it does, I will have to do some serious thinking as to which way the court would go. Offhand, not clear to me at all.
Pre-2008 law discussing how to determine a disability is no longer good law.

Lewis v. Union City Yet Again

August 26, 2019 by William Goren 1 Comment

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.

Court’s Reasoning Actual Disability and Regarded As

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.
The ADA allows for a cause of action where the an employer regards an employee as having a disability.
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.
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.

Court’s Reasoning Qualified Individual

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.
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.
The employer’s judgment as to what are the essential functions of the job is not by itself conclusive.
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.
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.
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.
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.
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

Plaintiff produced sufficient evidence that she is not a direct threat.
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).
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.
The definition of direct threat requires an analysis of the individual’s ability to perform safely the essential functions of the job.

Court’s Reasoning Racial and Gender Discrimination Claims

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.
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.
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.
Plaintiff presented a mosaic of circumstantial evidence raising a genuine issue of material fact as set forth in the paragraphs that follow below.
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.
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.
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.
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.
There is also plenty of evidence that Union City’s stated reason for firing plaintiff were pretextual as discussed in the following paragraphs.
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.
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.
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.
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.
Plenty of evidence exists that the argument that plaintiff did not timely submit her paperwork was just a pretext.
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.
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.
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.
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.
A Union City Lieutenant testified that the department treated women differently than men with regards to the cases assigned to them.
Plaintiff by her termination undoubtedly suffered an adverse action i.e. a change in the terms of her employment.

Takeaways

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.
The employer’s judgment as to what the essential functions of the job is not the be-all and end-all of things.
Keep your written job descriptions current.
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.
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.
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.
Insisting on a full return to work is always a bad idea. We discussed that issue here.
Remember, otherwise qualified/qualified is a question of whether the individual can do the essential functions of the job with or without reasonable accommodations.
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.
The 11^th Circuit nicely lays out what is needed to show it convincing mosaic and what is necessary to show pretext.

Regarded As: What Not to Do

May 16, 2018 by William Goren 1 Comment

Hope everyone had a great Mother’s Day.

Today’s blog entry is a case that I’ve had in my pipeline for quite a long time. I actually know the plaintiff’s attorney on the case, Cheryl Lagare of Lagare, Attwood & Wolfe. We have spoken a few times, and she is a fabulous CLE speaker. When this case came out, I congratulated her and asked her if it would be okay if I blogged on it, and she said go for it. Well, that was several months ago, but here goes. The case is Lewis v. City of Union City, Georgia, which can be found here. This case involves both the actual disability prong and regarded as prong of what it means to have a disability under the ADA. It also explores essential functions and direct threat as well. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning as to whether plaintiff had an actual disability; court’s reasoning as to whether plaintiff was regarded as having a disability; court’s reasoning as to whether plaintiff was qualified; court’s reasoning as to whether plaintiff was a direct threat; survivability of summary judgment motion; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts

In January 2009, Lewis, a police officer, suffered a small heart attack. It was unusual in the sense that the cardiac catheterization showed no clot and no disease in her heart even though heart attacks are generally caused by a clot inside the coronary arteries. While the cardiologist who treated her described the damage to her heart as being minuscule to small, enzyme levels confirmed the diagnosis of a heart attack. The doctor also found that the global function of the heart was unaffected, but noted that people who have had heart attacks tend to be at greater risk for subsequent heart attacks. Her primary care doctor said that she did not have heart disease that chronically affected her life, and therefore, cleared her to return to work without any cardiac restrictions because there weren’t any blockages to her heart.

Prior to 2010, the Union City Police Department allowed officers to choose which nonlethal weapons they carried. However, in early 2010, the Police Chief aat the time purchased tasers for all Union City officers and required each officer to carry one. While the manufacturer of the tasers, Taser International, does not require training to receive a Taser shock to be certified in Taser use, the Police Chief required his officers to receive a Taser shock in order to be certified in Taser use. Accordingly, he required his officer to receive a five second shock as part of the Taser training and gave justification for that requirement.

When Lewis found out about this training, she went and visited her primary care doctor. Her doctor shared her concerns that the electrical current could cause undue stress to her heart, and then wrote a letter to the Police Chief. That letter explained that she had been treating Lewis for several chronic conditions, including a heart condition, and that she would not recommend a Taser gun or oleoresin capsicum (OC) spray be used on or near Lewis. The letter asked the department to take that recommendation into consideration when making decisions about occupational training.

On June 17, following the Chief’s receipt of the letter from plaintiff’s physician, the Assistant Chief immediately placed her on administrative leave without compensation until such time as her physician released her to return to full and active duty. That letter did not fix any time frame for the plaintiff to be medically cleared to return to full and active duty. It also said that while she was being placed on leave without pay with the option to use her accrued leave until leave expired.

Plaintiff then wrote the Chief asking permission to resume her duties as a detective explaining that she was only asking for an accommodation on the training. She also sent a second letter requesting permission to seek temporary employment elsewhere while the Union City Police Department and her Doctor figured out some conclusion on the medical matter. She expressed concern in that letter that her sick and vacation leave had nearly run out, and she needed to be able to provide for family.

The Chief directed the Assistant Chief to tell the plaintiff that her request to return to work was denied and claimed that her Doctor’s letter essentially made it impossible for her to work or be at work. It denied her request to resume her duties until her doctor released her for duty. As before, no time frame was picked for obtaining such a medical release.

When plaintiff’s Doctor went on vacation, an email correspondence ensued where the Assistant Chief mentioned that they were constrained by the FMLA even though the plaintiff had never applied for FMLA leave, was not on FMLA leave, and was on administrative leave instead.

On July 8, the Assistant Chief terminated the plaintiff without speaking to the human resources manager. He also did not make any attempt to contact her physician or to have anyone else from the department contact her. Her physician had been on vacation and was not able to get the paperwork to the department until July 12. On July 8, plaintiff’s primary care doctor spoke with Assistant Chief Brown. To plaintiff’s Doctor recollection, the conversation was unpleasant and left her quite offended because she felt the Assistant Chief questioned her professionalism and her professional opinion. She made clear to the Assistant Chief that her opinion was based solely on a professional medical judgment and that she did not do things because patients tell her to do them.

In November of 2012, plaintiff filed suit alleging violations of the ADA as well as race and gender discrimination under §1981 and title VII. When the District Court granted defendant’s motion for summary judgment, plaintiff appealed.

Court’s Reasoning on Whether Plaintiff was a Person with an Actual Disability?

Plaintiff argued that she was substantially limited in a major life activity of breathing and sleeping. However, the only such evidence in the record was her own testimony that she had periodic shortness of breath and her primary care physician’s testimony that the shortness of breath could, but in her case, did not affect plaintiff’s ability to sleep. The record was completely absent of any evidence of the severity, frequency, and duration of the shortness of breath episodes. Further there was not any evidence to the extent to which the episode limited plaintiff’s ability to sleep or that could lead a reasonable jury to conclude that she was substantially limited in a major life activity.

III

Court’s Reasoning on Whether Plaintiff Was Regarded as Having a Disability

The ADA, 42 U.S.C. §12102(3)(A), provides that an individual is regarded as having a disability if he or she establishes that she had been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment regardless of whether that impairment limits or is perceived to limit a major life activity.
All kinds of evidence existed to raise a genuine issue of material fact as to whether Union City regarded the plaintiff as having a disability, including the following: the Chief was aware of the heart attack as he was a witness to it; the June 17 letter putting the plaintiff on leave referred to her chronic conditions and instructed her to complete FMLA paperwork; Chief Brown’s July 1 letter forbade plaintiff from returning to work until everything was cleared up with her Doctor and said that her Doctor’s letter made it impossible for her to be at work or for her to work. That letter further concluded she could not return until her doctor released her for duty; the July 6 letter from the Assistant Chief again referred to the possibility of the plaintiff taking leave under FMLA; and the department’s own stated reason for putting plaintiff on leave-data fear for her safety in view of her heart condition, demonstrated the department’s belief that plaintiff’s medical condition set her apart from other police officers.
The EEOC guidance specifically gives the case of an employer being considered as regarding an employee as having a disability where the employer terminates an employee with angina from a manufacturing job requiring the employee to work around machinery because they believe the employee poses a safety risk to himself or others if he were suddenly to lose consciousness. It also notes while the direct threat defense may exist, that is a separate inquiry from whether the person has a disability. The EEOC guidance illustrates that an employer taking an adverse action because it fears the consequences of an employee’s medical condition regards the employee as having a disability.

Court’s Reasoning on Whether Plaintiff was an Otherwise Qualified/Qualified Individual

Evaluating essential functions is done on a case-by-case basis by looking at several different factors, such as the employer’s judgment, especially when it is a Police Department.
Other factors to look at (per the EEOC), include any written job description prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the employee to perform the function; the terms of any collective bargaining agreement; the work experience of past employees in the job; in the current work experience of employees in similar jobs.
Although the employer’s judgment is entitled to substantial weight, that factor alone is not conclusive.
The City’s written job description for the detective position does not mention anywhere the necessity for a detective either to carry or to be exposed to OC spray or a Taser shock.
In the section listing various physical demands of the job, there was no such mention of OC spray or Taser shock. Same goes for the work environment section of the job description.
Plaintiff offered evidence that previously, detectives were given the choice of what nonlethal weapon or weapon to carry.
Neither party disputed that Taser International did not require trainees to receive a shock in order to become certified in Taser use.

Court’s Reasoning Finding That Plaintiff Was Not a Direct Threat

The direct threat defense requires an analysis of the individual’s ability to perform safely the essential functions of the job.
Since the court held a genuine dispute of material fact existed as to what the essential functions of the police detective were, the court could not resolve the question of whether she could perform those yet undefined essential functions safely.
Citing to Chevron v. Echazabal, a direct threat must be based upon reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job determined after considering, among other things, the imminence of the risk and the severity of the harm likely to occur.

Survivability of Summary Judgment Motion

With respect to surviving a summary judgment motion, the court held that a convincing mosaic existed to show that the employer discriminated intentionally against the plaintiff. For another blog entry discussing convincing mosaic, see this blog entry.

VII

Takeaways

There are a lot of things Union City did wrong here, among them: 1) insisting on a method of certification for use of a Taser that wasn’t even called for by the manufacturer; 2) refusing to engage in any meaningful interactive process; 3) focusing on a full return to work, certainly implicitly; 4) acting unprofessionally with plaintiff’s primary care physician; 5) terminating the plaintiff without speaking to human resources manager or legal counsel; 6) putting the plaintiff on unpaid leave until a full return to work was signed off on and; 7) imposing the FMLA on the situation when it was not even involved.
Just because a person does not have an actual disability doesn’t mean they are not protected as regarding as having a disability. With respect to regarded as, it is not necessary to show a substantial limitation on a major life activity. True, a person who is regarded as having a disability is not entitled to reasonable accommodations. However, you can’t take adverse action against that person either because of the disability you are regarding.
This court seems to suggest that it would cover fear of a future disability under the ADA. See this blog entry for example.
In the 11^th Circuit, an employer’s judgment as to what are the essential functions, is not conclusive by itself.
Make sure you keep job descriptions current and that they reflect the actual job.
Not every court is following the convincing mosaic line of thinking.
Direct threat is a term of art and you just can’t make assumptions. Go through the Chevron analysis to get it right.
To prove an actual disability, you do have to show a substantial limitation on a major life activity. With the amendments to the ADA, doing that is not as difficult as it used to be, but it still has to be done.
Looking to employer’s judgment as to essential functions comes directly from the ADA itself. The EEOC has seven factors and three situations addressing essential functions as well. All of that is persuasive, but not dispositive, and there are variations among the courts.

convincing mosaic

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