Understanding the ADA

The Blog of William D. Goren, J.D. LL.M. - Of Counsel, Kitchens New Cleghorn, LLC

McDonnell Douglas

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.

 

Judge Kavanaugh and Persons with Disabilities

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Before getting started on the blog entry of the week, next week is the Jewish new year. I want to take the opportunity to wish all of my Jewish brethren a happy and healthy new year for them and their families. It also means that no one should be surprise if the blog entry for next week goes up on Wednesday since Monday and Tuesday are the Jewish new year.

As I write this, Judge Kavanaugh is appearing before the United States Senate. Previously, I wrote about how then Judge Gorsuch might deal with persons with disabilities on the Supreme Court, and I promised I would do the same for Judge Kavanaugh. So, I did a search for the cases involving the ADA and the Rehabilitation Act to see how he went about dealing with the rights of persons with disabilities. I also looked into Chevron and Auer deference as well. The blog entry will be divided into two categories. First, the cases and a brief description of what Judge Kavanaugh decided either by joining an opinion, concurring, or dissenting. Second, overall themes of his jurisprudence. I will say that unlike Judge Gorsuch I don’t see an overriding judicial philosophy from the opinions, though there are certain themes that emerge.

I

The Cases

  1. In Adams v. Rice, Judge Kavanaugh joined an opinion written by Judge Tatel with Judge Henderson dissenting reversing summary judgment for the United States Foreign Service. The case involved a candidate for the United States Foreign Service being discriminated against on the basis of her had breast cancer. There are several things that are interesting about the case. First, the majority opinion held that cancer in remission is not a physical impairment. Second, the majority held that sexual relations is a major life activity. Third, a person with cancer in remission does have a record of an impairment. Finally, the majority opinion held that the employer’s knowledge of a physical or mental impairment is sufficient to trigger ADA coverage. That is, to trigger the ADA the employer did not need to know just how the physical impairment substantially limited a major life activity to have ADA obligations.
  2. In Johnson v. Interstate Management Company, LLC, Judge Kavanaugh wrote the opinion where he said: 1) he was not going to find a cause of action if the authority for that was not explicitly laid out in the statute; and 2) the plaintiff did not produce enough evidence to overcome the legitimate nondiscriminatory reason offered by the employer for termination as part of the McDonnell-Douglas process.
  3. In Koch v. Cox, Judge Kavanaugh joined an opinion with Judge Ginsburg and Judge Brown holding an acknowledgment of depression is not the same as putting a person’s mental health at issue where no emotional distress claim existed. The issue in the case was whether to quash a subpoena for the plaintiff’s therapist records. Also, in that case the court noted that it did consider the motivation of the litigant in revoking his consent that his therapist record be disclosed. The court believed that the motivations were not nefarious.
  4. In United States Department of State v. Coombs, Judge Kavanaugh joined an opinion with Judge Garland and Judge Silberman writing in reversing the District Court’s award for summary judgment on behalf of the United States Department of State. The holding of the case was the Foreign Service Board needed to consider the Rehabilitation Act as it goes about its business and had not properly done so.
  5. In Baloch v. Kempthorne, Judge Kavanaugh wrote the majority opinion holding that the plaintiff could not show any adverse action. Also, the plaintiff did not present sufficient evidence to show the employer’s reason for termination was not discriminatory under the McDonnell-Douglas scheme.
  6. In Stuart v. St. Elizabeth’s Hospital, Judge Kavanaugh wrote an opinion holding that a request for reasonable accommodation must be clear before the employer has an obligation to engage in the interactive process. He was part of a per curiam opinion in Thompson v. Rice, holding the same thing as well.
  7. In Long v. Howard University, Judge Kavanaugh wrote the opinion for the court in a §504 case holding that the statute of limitation could begin to run at the time of the request made or at the time of the denial. For a blog entry on this subject, see this one.
  8. In Northeast Hospital Corporation v. Sibelius, Judge Kavanaugh filed a concurring opinion saying that the relevant inquiry was a narrow reading of statutory text.
  9. In Sims v. Johnson, involving a dispute over a settlement agreement, Judge Kavanaugh dissented essentially on the grounds that the motive of the plaintiff in contesting the settlement cut against the claim that the settlement terms should be figured out by the lower court.
  10. In Allen v. Johnson, Judge Kavanaugh joined a unanimous opinion by Judge Rogers giving latitude to the employer with respect to whether the employer held an honest belief. Further, to find that the employer was culpable more evidence was needed than just proximity of the adverse action. Finally, there was no material dispute of fact over the reason offered by the employer as a legitimate basis for the termination.
  11. In Doe by her next friend Tarlow v. District of Columbia, Judge Kavanaugh wrote the opinion holding that he was not inclined to expand statutes as they were written. This is a case that has disability rights advocates concerned. This case involved persons with disabilities in the District of Columbia who could not consent for healthcare and never could consent for healthcare. Further, they had no particular individual whom could exercise such consent. So, the issue is whether the statutory scheme was inconsistent with District of Columbia statutes and the due process clause of the Fifth Amendment. I can see where disability rights advocates are coming from in this case as the opinion is written in a way that some might construe as paternalistic, which is a real sensitive spot for people with disabilities.
  12. In Carter v. Carson, Judge Kavanaugh joined a per curiam opinion holding that the complaint did not satisfy Iqbal/Twombly standards, which we discussed here.
  13. In Hester v. District of Columbia, a special education case, Judge Kavanaugh wrote the opinion where he decided the case based upon a literal reading of the four corners of the critical document.
  14. In Redman v. Graham, Judge Kavanaugh dissented saying that he was not inclined to expand the statute as written.
  15. In Hill v. Associates for Renewal in Education, Inc., Judge Kavanaugh joined an opinion by Judge Wilkins in an absolutely fascinating case. In this case, the court held a request for reasonable accommodation must be related to the limitation rendering the person disabled. The court affirmed the District Court’s conclusion that the plaintiff did not bring forth sufficient facts to establish a hostile work environment claim. However, the court reversed the summary judgment and remanded for trial on the failure to accommodate claim. The case is also fascinating because it came down July 27 of 2018. The related piece is interesting. In just about all cases, I don’t see how the related piece is going to be much of an issue. A big exception would be dealing with the situation where an employee needs a service dog with them because of his or her disability. I could see in that situation a dispute over “relatedness,” assuming that is the standard a court wants to use. See also this blog entry for a similar discussion.
  16. In City of Anaheim, California v. FERC, Judge Kavanaugh said that Chevron deference was not applicable because the statute was clear that what California did was not permissible.

II

Themes

Unlike my review of Justice Gorsuch, I don’t see an overriding judicial philosophy in these opinions. However, I do see certain pillars and they are:

  1. In city of Anaheim, California v. FERC Judge Kavanaugh said, “The precise words of the statutory text matter.” Judge Kavanaugh clearly will look to what the statute literally says and interpret those statutes whenever possible before looking to other matters to explain what the statute might mean.
  2. In a couple of cases, the motivation of plaintiffs with respect to their litigation strategy are a factor in his conclusions.
  3. Chevron deference is not something he is against. However, he doesn’t like to go there unless he has to. With respect to agency interpretations of their regulations, Auer deference, he does not have a judicial opinion on that. However, when I did a Google search on the Internet, I did come across a speech where he praises Justice Scalia’s opinion, which we discussed here, saying that Auer deference should be thrown out.
  4. He seems to be quite comfortable with the McDonnell-Douglas scheme, which we discussed here. Further, he expect plaintiff’s to meet their burden of proof to overcome nondiscriminatory reasons offered by the employer.
  5. We have often said that magic words are not required to trigger the interactive process. Just what words are required depends. With respect to Judge Kavanaugh, the closer a plaintiff comes to magic words, the better off a plaintiff will be in arguing that the interactive process should have been triggered.
  6. Judge Kavanaugh seem to be quite willing to give employers latitude with respect to the honestly held belief rule.
  7. With respect to the rights of persons with disabilities, the two most interesting cases I find are Hill and Long. In the former, Judge Kavanaugh says that the statute of limitations with respect to a reasonable accommodation request can start either at the time of the request made or at the time of denial. In the latter, Judge Kavanaugh joined an opinion saying that the accommodation sought must be related to the disability. Both of those decisions could have a significant impact on ADA jurisprudence if they become the law of the land.

Happy new year y’all!

Honest Belief Rule

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Today’s case, to DeWitt v. Southwestern Bell Telephone Company deals with the honest belief rule. This rule allows an employer to justify a termination if it honestly believes its reason for doing so was valid regardless of whether it actually was. As is usual, the blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to read any or all of the sections.

I

Facts

Plaintiff has type I diabetes and is insulin-dependent. She monitors her blood sugar levels many times a day. When her blood sugar levels are relatively low, she experiences sweating, shakiness, fatigue, lethargy, confusion, and poor coordination. She told her managers at Southwestern Bell telephone that she had diabetes and that she may experience low blood sugar levels. At such times, she would need to eat or drink something to correct it. Throughout her employment, defendant allowed her to take breaks to eat or drink in order to raise her blood sugar as needed. On January 21, 2010, plaintiff mistakenly left phone service on a customer’s account after the customer canceled the service. Such an action is known as a cramming violation, which is the failure to remove the service plan from a customer’s account after the customer canceled the service. Such an act is a violation of the defendant’s code of business conduct and a terminable offense. Plaintiff was suspended the following day. On January 29, 2010, plaintiff attended a meeting to address the cramming incident and determine her punishment. As punishment for the cramming violation, her second line supervisor in consultation with the third line supervisor decided to place her on a last chance agreement. That agreement stated that even one incident of failing to maintain satisfactory performance in all components of her job would lead to further disciplinary action up to and including dismissal. Two months later, plaintiff suffered a severe drop in blood sugar while at work and was unable to stabilize her blood sugar even after eating food and drinking juice. As a result, plaintiff experienced lethargy, disorientation, and confusion, and was unable to communicate with anyone. Plaintiff noticed that she was locked out of her computer and called her first line supervisor for assistance. Instead of addressing the computer issues, he informed a manager that he had been monitoring plaintiff’s calls and that she had hung up on at least two customers. The manager responded by doing a dance and saying, “I finally got that bitch.” The first line supervisor told the manager that her behavior was not appropriate whereby the manager responded, “you don’t understand. I’ve been chasing after her long before, since you got here.” A meeting subsequently ensued to discuss the incident whereby the plaintiff said she simply didn’t remember hanging up on people due to her blood sugar not being in control at the time. Nevertheless, the defendant terminated her on March 15, 2010. Plaintiff brought suit and defendant defended on the honest belief rule.

 

II

Court’s Reasoning

In affirming the lower court’s grant of summary judgment for the defendant, the 10th circuit reasoned as follows:

 

  1. When it comes to prtext, the court’s role is not to ask whether the employer’s decision was wise, fair or correct, rather it is to ask whether the employer honestly believed the legitimate nondiscriminatory reason it gave for the conduct and whether it acted in good faith on those beliefs.
  2. Mistaken or poor business judgment is not sufficient to show that an employer’s explanation is unworthy of credibility.
  3. The role of the court is to prevent intentional discriminatory practices and not to act as a super personnel department second-guessing employers’ honestly held, even if erroneous, business judgments.
  4. The critical question is whether a reasonable factfinder could reasonably find the employer’s rationale unworthy of credence.
  5. Plaintiff could not identify any evidence from which a reasonable jury could rationally find that her disability and not the drop calls motivated her termination.
  6. The third line supervisor had a reasonable basis to believe that plaintiff intentionally hung up on the customer considering the complex nature of the hang up process.
  7. Once an employer has put forth a legitimate, nondiscriminatory reason for terminating an employee, the employee may access a variety of evidentiary tools in order to expose the employer’s stated reason is pretext. For example, a plaintiff may raise a triable inference of pretext by showing weaknesses, implausibility, inconsistencies, incoherency, or contradictions in the employer’s stated reason for terminating the employee.
  8. Another option, and a particularly good one, for the plaintiff is to demonstrate that the employer treated employees similarly situated to the plaintiff differently.
  9. So, the honest belief doctrine does not prevent a plaintiff from showing pretext vis-à-vis McDonnell Douglas. Instead, the honest belief doctrine contemplates that an employer would have professed an honest belief in the legitimate nondiscriminatory reason for the adverse action. Even so, that then establishes the context for an employee to test the plausibility or coherency of the reasons supposedly underlying that honest belief with the aim of showing that such a belief actually may not be honestly held. So, it is up to the plaintiff to marshal evidence undercutting the operation of the honest belief rule.
  10. A case out of the Sixth Circuit, Smith v. Chrysler Corporation, turns everything on its head by requiring the employer to establish reasonable reliance on specific facts before it at the time the decision was made. The 10th Circuit has recognized no such obligation on the part of the employer. While the employer certainly can fortify its litigation position by the identification of specific facts it reasonably relied upon in forming its honest belief, McDonnell-Douglas does not require the employer to do that. In a footnote, the court noted that adopting the 10th Circuit rule would not help the plaintiff in any event.
  11. Plaintiff’s failure to accommodate claim fails because instead of requesting a reasonable accommodation to address concerns regarding the possibility of drop calls, she requested retroactive excusal for her misconduct. It simply doesn’t work that way. That is, the ADA as amended does not require an employer to reasonably accommodate an employee’s disability by overlooking past misconduct regardless of whether the misconduct resulted from the employee’s disability.
  12. EEOC Enforcement Guidance states that the requirement to provide reasonable accommodations is always prospective and that an employer does not have to excuse past misconduct even if it is the result of a person’s disability.
  13. Several other Circuits have also said that a requested accommodation excusing past misconduct is unreasonable as a matter of law. So, the ADA as amended does not require employers to accommodate employees with disabilities by overlooking past violations of a workplace rule.
  14. Southwestern Bell Telephone Company code of business conduct is a workplace rule.
  15. Employers are permitted under the ADA as amended to apply the same performance standards to employees with disabilities applicable to employees without disabilities.
  16. An employer has no obligation under the ADA as amended to excuse performance problems occurring prior to an accommodation request.

III

Takeaways:

  1. This is a mixed decision. On the one hand, the honest belief rule most certainly benefits employers over plaintiffs. On the other hand, the 10th Circuit makes it clear that the honest belief rule is not a get out of jail free card for an employer.
  2. For example, evidence of differential treatment and any evidence showing weaknesses, plausibility, inconsistencies, incoherency, or contradictions is fair game for the plaintiff. For a case where the plaintiff did exactly that, see Caldwell v. KHOU-TV.
  3. An employer does not have to overlook an employee’s past misconduct regardless of whether that misconduct resulted from the employee’s disability.
  4. Employers are permitted under the ADA to apply the same performance standard to employees with disabilities applicable to employees without disabilities. While true, don’t forget about reasonable accommodations if you are the employer.
  5. Since an employer is not required to excuse performance problems occurring prior to an accommodation request, it is important for the employee with a disability when needing accommodations to disclose that need to the employer early.
  6. Whenever defending failure to accommodate claims, it always helps if there is a history of reasonably accommodating the plaintiff in the past.
  7. This is a title I case and obviously from the reasoning of the court, mixed motive is very much in play here.
  8. Differential treatment is a hard thing to pull off because of the requirement of finding someone else similar. Nevertheless, see Caldwell above for an example of when the plaintiff pulled this off.
  9. The ruling puts a premium on thorough discovery.