fear of future disability

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.

I

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.

II

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

1. 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

1. 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.
2. 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.
3. 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.

IV

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

1. 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.
2. 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.
3. Although the employer’s judgment is entitled to substantial weight, that factor alone is not conclusive.
4. 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.
5. 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.
6. Plaintiff offered evidence that previously, detectives were given the choice of what nonlethal weapon or weapon to carry.
7. Neither party disputed that Taser International did not require trainees to receive a shock in order to become certified in Taser use.

V

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

1. The direct threat defense requires an analysis of the individual’s ability to perform safely the essential functions of the job.
2. 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.
3. 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.

VI

Survivability of Summary Judgment Motion

1. 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

1. 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.
2. 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.
3. This court seems to suggest that it would cover fear of a future disability under the ADA. See this blog entry for example.
4. In the 11^th Circuit, an employer’s judgment as to what are the essential functions, is not conclusive by itself.
5. Make sure you keep job descriptions current and that they reflect the actual job.
6. Not every court is following the convincing mosaic line of thinking.
7. Direct threat is a term of art and you just can’t make assumptions. Go through the Chevron analysis to get it right.
8. 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.
9. 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.