Today’s case raises the point that an EEOC charge needs to cover the claim. Further, don’t assume that just because there is a prior EEOC charge on file that a subsequent claim will be automatically covered. The case is Martinez v. University Medical Center. The case also has some other interesting points in it that we will discuss as well. As is my usual practice, the blog entry is divided into categories: facts, issues, holdings, court’s reasoning, and takeaways. The reader is free to focus on any or all of the categories.
On August 4, 2011, Martinez suffered a hernia and an L5-S1 disc protrusion while lifting boxes in the warehouse. He was placed on temporary modified duty with no lifting over 10 pounds, no repetitive bending, and no climbing. He filed a worker’s compensation claim for those injuries on the same date. University Medical Center and Martinez then entered into a modified duty work contract to commence on September 12, 2011. Under that contract, he was given a 90 day assignment with the central supply department and the clinical lab to perform work consistent with the doctor’s restrictions. However, on December 1, 2011, he received a phone call from the manager of pathology advising him that he needed to perform duties related to the third floor tubing system. He had previously worked with the tubing system and knew he could not do what was asked because that work strained his back. He told the manager of pathology precisely that. The manager of pathology responded that because he could not do those job tasks he would be transferred. Martinez also stated that the manager of pathology suspended him. He contacted workers compensation personnel and they told him to clock out and go home because there was no other light duty to perform at the moment, and that he would be contacted when something was available. According to the plaintiff, he remained on suspension from December 1 through January 4 of 2012. Further, when Martinez did not appear for work on December 8, 9th, or 14th, he was suspended for three days for his unexplained absenteeism. He then sent a letter to the director of HR complaining of discrimination based on age, race, and disability. In January 2012, he filed a charge of discrimination with the EEOC marking the boxes on the form to indicate he was alleging discrimination based upon national origin, disability, and retaliation. He identified the beginning date of the discriminatory conduct as December 1, 2011 and the last date as the date he filed the charge, though he did check continuing action as being what the charge related to. This led to another modified work duty contract. He also requested leave under the family medical leave act, which was granted. On June 5, 2012, the University Medical Center sent Martinez a letter indicating that because his medical condition remain unchanged and Martinez confirmed he would not be able to return to work, he was a candidate for a medical separation. Under that system, University Medical Center conducts a 30 working day job search for available alternative work for which that person may qualify with or without an accommodation. He applied for numerous job but did not get any of them. As a result, at the end of that time, he was advised by the University Medical Center that he had 10 days under his collective bargaining agreement to file a grievance or he would be terminated. He did not file any such grievance and he was terminated. Further, he did not file a separate charge of discrimination with the EEOC relating to his efforts at finding another job at the University Medical Center that he could perform with or without reasonable accommodations nor did he file a charge relating to his separation from employment. After the EEOC issued a right to sue letter on the claim that he did file, he sued alleging disability discrimination from the December 1 incident, his efforts to find another position, and his eventual separation from employment. He also alleged retaliation for his refusal to perform work that would have violated his Doctor’s restrictions and for retaliation for filing his EEOC claim. Finally, he also alleged that he was discharged for filing a worker’s compensation claim in violation of Nevada State law.
1. Did the plaintiff exhaust administrative remedies with respect to all of his ADA claims?
2. Was the plaintiff a person with a disability since his disability was only temporary?
3. Did University Medical Center have the obligation to engage in the interactive process?
4. Did an adverse employment action occur?
5. Are compensatory and punitive damages available for a retaliation claim available?
6. Do the ADA retaliation claims survive a motion for summary judgment?
2. Temporary Disabilities are covered by the ADA as amended.
6. Yes, but not for the reasons you expect.
1. The December 1 charge survives because the EEOC charge clearly describes that claim.
2. A court cannot consider incidents of discrimination not included in an EEOC charge unless the new claims are like or reasonably related to the allegations contained in the EEOC charge. A claim is like or reasonably related to allegations contained in the EEOC charge if the claim falls within the scope of the EEOC’s actual investigation or an EEOC investigation that can be reasonably expected to grow out of the charge of discrimination. Factors a court considers in making that determination include: the alleged basis of the discrimination; dates of discriminatory act specified within the charge; perpetrators of discrimination named in the charge; and any locations at which discrimination is alleged to have occurred.
3. The driver in all of this is the factual statement contained in the charge. Since EEOC charges are generally prepared by laymen, the court construes charge language with “upmost liberality.” However, principles of notice and fair play do act as a limit on judicial tolerance. That is, a plaintiff does not have the unlimited ability to extend the claim endlessly beyond the bounds and parameters of the administrative charge because to allow such unwarranted extensions of the scope of the investigation effectively nullifies the administrative exhaustion requirement and converts it into a simple notice requirement that some claim may be brought. That in turn deprives private employers of the opportunity to resolve issues at an early stage and renders the EEOC and state level equivalent agencies unnecessary.
4. The reasonable accommodation claims, the termination claims, and the retaliation claims are not sufficiently like or reasonably related to the allegations in the EEOC charge filed by the plaintiff on January 12 even though all the claims pertain to disability discrimination. While it is true that he alleged continuing violations, he did not allege any facts supporting a pattern or practice of alleged discriminatory conduct. Rather, he just referenced a single incident in his charge against a manager in the department in which he no longer worked in by the time he filed a charge. Therefore, a reasonable EEOC investigation would not have encompassed the various acts related to the plaintiff’s claim that the University Medical Center not only failed to accommodate his disability but then terminated him when he could not find a suitable position.
5. While he did keep EEOC in the loop, at no time did he amend the original charge. Providing documents to the EEOC is not the same thing as amending an original charge. To hold otherwise, allows the plaintiff to avoid requirements for filing a charge, which includes that the charge be filed in writing under oath or affirmation and that the charge be served on the person against whom the charge is made. It would also deprive the EEOC of an opportunity to investigate any new charges. Finally, to hold otherwise would not put the employer on notice of the alleged discrimination nor would it allow the employer an opportunity to address any such issues before the matter goes into litigation.
1. Under the first or second prong of what is a disability under the ADA as amended, an impairment does not have to last for more than six months in order to be considered substantially limiting.
2. Since the University Medical Center failed to address the ADA as amended, it did not meet its initial burden of establishing that the plaintiff was not covered by the ADA at the time of the December 1 incident due to a temporary injury.
1. There was no evidence in the record that the plaintiff had a disability that prevented him from requesting a reasonable accommodation.
2. The plaintiff did not respond to the argument made by the defendant that transferring him to another department where he could perform light duty work was a reasonable accommodation.
1. An adverse employment action includes a suspension. The plaintiff stated under oath that the pathology manager suspended him and that he remained on suspension from December 1, 2011 through January 4 of 2012. Since at this stage of the litigation, the plaintiff’s version of the facts must be accepted as true, the court denied University Medical Center’s motion for summary judgment to the extent was based upon lack of an adverse employment action.
1. Punitive damages may not be recovered against a government, government agency, or political subdivision for an ADA violation.
2. Compensatory and punitive damages are not available for an ADA retaliation claim.
University Medical Center cited no law regarding a prima facie retaliation claim, what constitutes protected activity under the ADA, or pretext and the burdens with respect to summary judgment motions on a retaliation claim. Further, they did not explain the significance of the statement they made that there was no evidence the nondisabled employees were treated more favorably. They also failed to file points and authorities in support of those contentions. Accordingly, by failing to present factual and legal support for its motion with respect to retaliation, the defendant failed to meet its burden under Rule 56 and therefore, summary judgment on this point was denied.
1. Most EEOC charges are filed by individuals and not by attorneys. This case is Exhibit A for why that isn’t always a good idea. Further, you can’t assume that just because an initial charge is on file, the initial charge will cover other related incidents arising subsequent to the initial charge. New EEOC charges or at the very least amending the existing charge, may well be in order. The key is whether the future conduct is like or is reasonably related to the existing charge. As a matter of preventive law, if you are on the plaintiff side, it would probably be a good idea to err on the side of filing a new claim or amending the charge if there is any doubt whatsoever as to whether the new events are like or reasonably related to the charge.
2. Under the first and second prong of the ADA as amended, a temporary disability could well be a disability under the ADA. The six-month figure (transitory and minor), only applies to the regarded as prong.
3. Before an employer has the obligation to engage in the interactive process, they have to be put on some kind of notice that the interactive process is called for as a result of a disability.
4. A suspension is an adverse employment action.
5. It is absolutely true that punitive damages are not available against an entity covered by title II of the ADA. It is also true that punitive damages are not available under the Rehabilitation Act. However, the court just makes the conclusory statements that compensatory and punitive damages are not available for retaliation claims and cites to a Ninth Circuit case. However, as we have discussed here, it isn’t a foregone conclusion that compensatory and punitive damages are not available for ADA retaliation claims.
6. If someone raises an argument in their motions, it is always a good idea to respond to it.