discriminatory intent

Direct Evidence is a Smoking Gun

May 6, 2019 by William Goren Leave a Comment

Today’s blog entry discusses two cases, both dealing with smoking guns (hence, the cannon above).

One is from the Sixth Circuit, Baum v. Metro Restoration Services, Inc., Decided on April 11, 2019. The other is EEOC v. Crain Automotive Holdings LLC from the Eastern District of Arkansas, also decided on April 11, 2019. As usual, the blog entry is divided into categories, and they are: Crain’s facts; Crain’s reasoning; Crain’s takeaways; Baum’s facts; Baum’s reasoning; and Baum takeaways. Of course, the reader is free to focus on any or all of the categories.

Crain Facts Taken Directly From The Opinion

Judith Vaughn began working for Crain Automotive Holdings, LLC in the fall of 2016. Vaughn suffers from anxiety, depression, and panic attacks. Late in the day on Monday, January 30, 2017, Vaughn began experiencing chest pains and went to the emergency room, fearing she was having a heart attack. After two days of treatment Vaughn learned her chest pain had been the result of a panic attack. She ultimately reported back to work on Friday, but she began experiencing a panic attack and left work, after emailing her supervisor. When Vaughn returned to work the following Tuesday, she met with two supervisors, Kim Lynch and Debbie Pumphrey, and was terminated. According to Vaughn, she was told at this meeting that “it was not working out” due to her health problems and that she needed to take care of herself.

Crain’s Reasoning

McDonnell-Douglas only applies where a plaintiff does not have direct evidence of discrimination.
Direct evidence is evidence showing a specific link between the discriminatory intent and the adverse employment action sufficient for a reasonable jury to find an illegitimate criterion actually motivated the adverse employment action.
Where direct evidence of discrimination exists, a plaintiff gets to the jury based on that evidence alone.
No dispute that Vaughn has anxiety, depression, and panic attacks. With respect to her panic attacks, those attacks make her feel paralyzed, cause chest pain, and cause difficulty with breathing, thinking, communicating with others, and reasoning. Her anxiety causes her to have difficulty breathing and communicating and an inability to think coherently. Finally, when her depression is active, she is unable to care for herself, communicate with others, or think coherently.
It doesn’t matter that Vaughn can perform some demanding activities and that she does not have panic attacks constantly because an impairment substantially limiting one major life activity does not need to substantially limit other major life activities in order to be considered a substantially limiting impairment. Also, episodic impairments are a disability when they substantially limit a major life activity when active. Finally, Toyota Motor’s definition of substantial limitation was overruled by the amendments to the ADA [my words, but what the court essentially said].
The evidence presented by the EEOC makes clear that Vaughn’s employer was on notice that she had anxiety, depression, and had suffered a panic attack. She also had put the employer on notice that she had had a heart catheterization. Accordingly, a reasonable jury could find that when Vaughn was fired the following Tuesday, the employer certainly knew about her anxiety, depression, and panic attacks. Further, the jury could find that the employer had some knowledge of the extent of Vaughn’s impairments as they had caused her chest pain resulting in a heart catheterization as well as missing several days of work.
Actions or remarks by employers reflecting a discriminatory attitude or comments that demonstrate a discriminatory intent (the legal jargon is animus), in the decisional process, or comments made by individuals closely involved in employment decisions may all constitute direct evidence of discrimination.
At the meeting between Vaughn and her two supervisors to talk about why she had left work early, Vaughn was specifically told that “due to her health, it wasn’t going to work out and she should take time for herself.” If believed by the jury, and it is the jury’s call, the comment is direct evidence of discrimination that would enable a jury to find the employer motivated by Vaughn’s disability when it fired her.
The supervisor’s comment is a far cry from stray remarks in the workplace for several reasons: 1) it was made during the meeting in which Vaughn was fired; 2) it was made by Vaughn’s supervisor; 3) it relates directly to the decision to fire the plaintiff; and 4) no reason exists to suspect that the suggestion that the Vaughn should take care of her health or take time for herself was made with the intent of attempting to preserve and promote her as she was fired in the same conversation.
Magic words are simply not required when it comes to requesting a reasonable accommodation. Instead, all a plaintiff has to do is make clear to the employer that he or she wants assistance for his or her disability. That is, an employee only needs to provide the employer with enough information that, under the circumstances, the employer can be fairly said to know about the disability and the desire for an accommodation. A question of material fact exists here because plaintiff produced an email in which she stated that a letter from her doctor was attached.

III

Crain Takeaways

This whole direct evidence/indirect evidence gets really confusing. Previously, I talked about that confusion and how Seventh Circuit may or may not have have done away with the whole thing.
Whether you are going with direct evidence or indirect evidence, it is clear that mixed motive is involved as both tests use motivating factor.
The amendments to the ADA change what substantial limitation means and it also changed dealing with episodic impairments.
Labor and employment lawyers are quite fond of saying that magic words are not required. The problem is what does that exactly mean? This case does a real nice job of presenting a standard for when a reasonable accommodation request has been made where magic words are not used. In particular, all the employee has to do is make clear to the employer that he or she wants assistance for his or her disability. That, is also vague, but the court goes further when it says, citing to an Eighth Circuit case, “an employee need only provide the employer with enough information that, under the circumstances, the employer can be fairly said to know about the disability and desire for an accommodation.”

Baum Facts Taken from the Opinion

A few months after Plaintiff Jonathan Baum began having heart problems, his employer, Defendant Metro Restoration Services, fired him. Not only that, Metro’s owner told him he was losing his job because of his health issues. So, Baum sued for disability discrimination, and the district court granted summary judgment in Metro’s favor after concluding that Baum couldn’t establish he was disabled.

Metro repairs property damage after catastrophic events such as storms and fires. In 2013, the company hired Baum as a scheduler. As the job title suggests, Baum determined which of Metro’s work crews would go to which job sites and when they would go. In late 2014, Baum began having heart problems. Over the course of several months, he went to the emergency room fearing he had had a heart attack; had a CAT scan; had a heart catheter implanted; had an echocardiogram (which outlines the heart’s movement using high-frequency sound waves); and wore a heart monitor for more than a month. During this time, he occasionally missed work for medical tests and treatments. He also worked remotely sometimes. He kept his boss and owner of Metro, Patrick Cahill, informed of his medical issues. One weekend in the spring of 2015, severe weather hit. Baum worked remotely to coordinate Metro’s crews. The next week, Cahill went to Baum’s home and fired him. During their conversation, Cahill said he was firing Baum “due to [Baum’s] health issues and doctors’ appointments.” Baum then sued Metro in state court for disability discrimination under both the Americans with Disabilities Act and Kentucky law. Metro removed the case to federal court.

Baum Court’s Reasoning

Cahill’s statement that he was firing the plaintiff because of his health issues is direct evidence of discrimination.
Since direct evidence of discrimination exists, plaintiff has to show that: 1) he has a disability; and 2) he is otherwise qualified for the job despite the disability either without accommodation, with an alleged essential job requirement eliminated, or with a proposed reasonable accommodation. (For the labor and employment lawyer really familiar with the ADA, I know what you are thinking. This is not a misprint).
Metro never contested plaintiff’s qualifications for the job without accommodations, and therefore, forfeited the argument by failing to raise the argument earlier than at oral argument.
Expert testimony is needed to show whether the plaintiff is substantially limited in the major life activities of cardiovascular and circulatory functions because cardiovascular and circulatory functions require medical knowledge to understand.
Absent medical expert testimony, the plaintiff can’t create a factual issue of whether he has a disability. Accordingly, summary judgment was correctly granted on that score.
With respect to the perceived disability claim, a plaintiff does not need to prove a limitation on a major life activity.
Cahill’s words v. the plaintiff’s word creates a classic credibility dispute that is a task for the jury.
While it is true that Cahill’s knowledge of plaintiff’s medical issues is not sufficient to carry the day, plaintiff has more than that here. In particular, he has Cahill’s stated reason for firing him: his health issues and doctors appointments. That statement creates a factual dispute and makes it material. Accordingly, giving the plaintiff the benefit of the doubt, which a court has to do at the summary judgment stage, a jury could find that Cahill meant exactly what he said. If the jury found such, then it could also find that Cahill perceived the plaintiff to have a physical impairment and fired him because of that perception.

Baum Takeaways

I am completely mystified by the court saying that one of the ways to show a plaintiff is otherwise qualified is to show that he can do the job with an essential job requirement eliminated. That simply isn’t the way the ADA works. The ADA does not require an employer to eliminate essential job functions. An employer may be required to engage in job restructuring, which we discussed here. They also may want to move marginal functions to others. That said, job restructuring and putting marginal functions on others are not the same as eliminating essential job requirements.
If you have an argument, raise it early. We just discussed that problem here.
A person may lose an actual disability case, but may be able to go forward on a regarded as claim.
Sometimes you need expert medical testimony to establish whether a substantial limitation on a major life activity exists even though what is a substantial limitation on a major life activity is a much easier standard to meet since the amendments to the ADA.
Direct evidence must be material to the adverse action.

A comment that applies equally to Baum and to Crain is that smoking guns are rare, but they do happen.

Failure to Accommodate Employee Nuggets

July 17, 2017 by William Goren 2 Comments

Obviously, I missed a blog entry last week. I have a good excuse. My daughter’s bat mitzvah was July 8. While the bat mitzvah and the reception and everything else went great (she did a great job!), the hangover was considerable. Once the hangover subsided, I had a client matter to attend to. However, I am back this week.

The case for this week is Punt v. Kelly Services, a 10^th Circuit case decided July 6, 2017. As is usual, the blog entry is divided into categories and they are: facts and plaintiff’s problems with the case; failure to accommodate nuggets; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts and Plaintiff’s Problems with the Case

The suit involved an allegation by a temporary employee whose assignment by a staffing agency, Kelly Services, to work as a receptionist for another business was terminated after she missed significant amount of work while being tested for breast cancer and after informing the agency that she needed to take a full week plus an additional unknown amount of time off for more tests, appointments, and radiation treatment due to her cancer. However, plaintiff’s case had numerous problems with it and those follow below.
As is typical with temporary employees from staffing agencies, the business, which happened to be General Electric, could ask the temporary agency to remove any of its temporary employees from their assignment for any reason. The temporary agency also had the right to cancel any employee’s assignment on its own initiative.
When the plaintiff initially applied for employment with the temporary services, she signed an employment application stating that the duration of any assignment she accepted depended upon the needs of the temporary agency’s customer and that an assignment could be canceled at any time by the temporary agency or the customer.
The application also stated that upon completion of each assignment she would notify the temporary agency of her availability for work and failure to do so indicated that she either voluntarily quit or was not actively seeking work.
In the six weeks plaintiff was assigned to work as a receptionist at General Electric, she never worked the full 40 hour work week. In fact, she was absent from work on six occasions, two corresponded with holidays and three corresponded with documented medical appointments. One absence was unexplained. She was also late to work on three different occasions and did not offer an explanation for being late on two of those dates. She also left work early on three occasions with one of those departures being unexplained.
When plaintiff would be gone from work, another temporary employee had to take over her duties and responsibilities.
Plaintiff did not respond to the temporary agency request for information once the plaintiff told the temporary agency that she was concerned about her cancer treatment.
Plaintiff lied to the temporary agency about what actually happened with her MRI.
Once the temporary agency terminated her, plaintiff never contacted the temporary agency to ask for another assignment even though she has been very aggressive with the temporary agency in the past with respect to seeking work.
The temporary agency offered plaintiff a one day assignment at a different business, but the plaintiff turned the assignment down because she already had work through a different temporary staffing agency.
After February 2012, plaintiff never contacted the temporary agency to tell them she was available for a job assignment and the temporary agency did not contact plaintiff with any additional job offers.

Failure to Accommodate Nuggets

Failure to accommodate claims do not require evidence of discriminatory intent, whether such evidence be direct or circumstantial. That is, the only reason the accommodation is required is because of a disability, and therefore, the failure to provide a reasonable accommodation to a qualified employee with a disability is inherently on the basis of the disability regardless of the employer’s motivation.
Assuming the employee has provided notice to the employer of a disability, any limitations resulting from that, and the accommodations she wishes to receive, then the employer’s failure to provide a reasonable accommodation for the disability establishes the required connection between the disability and the alleged discrimination without the need to inquire into the employer’s subjective motivations.
Since intentional discrimination is not a part of failure to accommodate claims, then McDonnell Douglas doesn’t apply either.
McDonnell Douglas’ purpose is determining whether reasonable fact finder can infer from circumstantial evidence that the employer’s motives were discriminatory, but that is not an issue in failure to accommodate cases. In fact, adopting McDonnell Douglas is likely to confuse the analysis of failure to accommodate claims. That is, the distinction between direct-evidence and circumstantial-evidence simply does not apply when there is no need to inquire into the issues of the employer’s subjective motivations. Accordingly, failure to accommodate cases should be classified as a separate category of cases requiring no evidence of discriminatory intent in any form.
The question of what type of ADA claim is involved in a particular case is determined by the allegations in the plaintiff’s complaint and not on the type of evidence.
A modified burden-shifting framework assessing failure to accommodate claims makes sense in order to provide a useful structure by which a District Court can determine whether the various parties have put forth sufficient evidence to meet their respective traditional burdens to prove or disprove the reasonableness of the accommodation offered or not offered. Without such a structure, a court would have difficulty figuring out who should prevail on summary judgment.
The modified framework involves: 1) the employee must make an initial showing that she is an otherwise qualified person with a disability and that she requested a plausible reasonable accommodation; 2) once that is done, the burden of production shifts to the employer to present evidence that either conclusively rebuts one or more elements of plaintiff’s prima facie case or establishes an affirmative defense, such as undue hardship or another affirmative defense available to the employer; and 3) if the employer is able to meet its burden of production as described just above, then summary judgment will be appropriate for the employer unless the employee then presents evidence establishing a genuine dispute regarding the affirmative defenses and/or rehabilitates any challenged elements of her prima facie case so as to establish a genuine dispute of material fact as to the challenged elements.
An employee’s request to be relieved from the essential function of her position is not as a matter of law a reasonable or even a plausible accommodation.
Physical attendance in the workplace is an essential function of most jobs and an employee’s request to work from home is as a matter of law unreasonable where the employer has decided that physical presence at the workplace is an essential function of the position.
Since the term “reasonable accommodation,” refers to those accommodations presently or in the near future that enable the employee to perform the essential functions of his job, an employee is required to inform his or her employer of the expected duration of the impairment, which the plaintiff did not do.
Plaintiff did not cite to a single case where a court found that a leave of absence is a reasonable accommodation for a temporary employee assigned to fill a position at a business by a temporary-staffing agency. To hold otherwise, would impose considerable difficulties on General Electric.
For temporary employees, the ability to report to work consistently is a necessary part of the job.
Plaintiff’s past behavior and her vague request for more time off suggest that she would not be able to meet the job’s requirement of reporting to work consistently in the future.
The most essential function of a temporary employee’s job is physical presence at the workplace and therefore, plaintiff’s request was unreasonable as a matter of law.
The temporary agency did not have to contact the plaintiff about additional job positions after her assignment with General Electric was terminated because the plaintiff did not carry out her obligations to the temporary agency asking for additional assignments when she was terminated per the contract she signed.

III

Takeaways:

Failure to accommodate claims do not require evidence of discriminatory intent says the 10^th Circuit. Remember, an employer can escape damages if they can show they acted in good faith.
Some reasonable accommodation requests may be unreasonable as a matter of law. See also this blog entry.
McDonnell Douglas does not apply to failure to accommodate cases, though modifying it is helpful so that courts can smoothly decide summary judgment motions.
The distinction between direct-evidence and circumstantial-evidence simply makes no sense in failure to accommodate claims. See also this blog entry, discussing the distinction between direct-evidence and circumstantial-evidence makes no sense at all in any situation, but arguably holding that McDonnell Douglas applies everywhere.
The question of the type of ADA claim depends upon the plaintiff’s complaint and not on the type of evidence, which is a point made by the Seventh Circuit in the case referenced in the blog entry mentioned in ¶ III 4.
An essential function of a temporary employee’s job is attendance. To my mind, always saying that goes too far. As a matter of preventive law, I would still prefer to go about it as discussed in this blog entry. That said, companies are retrenching in a big way from freely allowing remote working.
While the court acknowledges that just because the employer has decided that something is an essential function of the job does not make it so, the court goes out of its way to say that the employer’s judgment as to what is an essential function of the job is given big time weight. Accordingly, employers want to make sure that their job descriptions are current and accurate as to what the essential functions are.
Unlimited leave or leave without a specific duration is not a reasonable accommodation.
Following the terms of a contract can make a big difference in terms of how it case plays out.
Can you say interactive process?

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If you waive one law, do you waive others? Intersection of IDEA, § 504, and the ADA

March 5, 2013 by William Goren 8 Comments

In the kindergarten through grade 12 context, for students with disabilities, there are actually three laws to be aware of. Those laws are the Individual with Disabilities in Education Act (IDEA), § 504 of the Rehabilitation Act, and the Americans with Disabilities Act (ADA). IDEA is a law that demands a student with a disability obtain a free appropriate public education(FAPE). That law is extremely technical and has very specific eligibility requirements. It requires an individual education plan (IEP) and that plan needs to include performance measures and goals. It is much more narrowly focused than § 504, and therefore, a student could be eligible for § 504 services but not be eligible for IDEA services. That said, a person eligible for IDEA services would most certainly be covered under § 504. § 504 and the ADA are laws that we have discussed many times in this blog and they are designed to do something else, which is ensure that a person with a disability is able to get to the same starting line as everyone else. What happens if you have a person that asks out of or rejects an IEP, does that mean they have also waived any rights they have under §504 or under the ADA?

A case that answers this question is Kimble v. Douglas County School District _ F. Supp. 2d _, 2013 WL 659109 (D. Colorado, February 25, 2013). In this case, parents and guardians of a minor had an IEP with the school district. They were perfectly happy with an IEP. However, the next year, the school district wanted to change that IEP, and the parents were not willing to go along with the proposed changes. Accordingly, they refused to consent to the changed IEP. The school then sent her a letter saying that rejection of the IEP also meant rejection of any services under § 504 of the Rehabilitation Act. After receiving this rejection letter, the plaintiff submitted a written request to the defendant by email to develop a section 504 plan. However, the school said the 504 plan that they would offer would be the same as the proposed IEP and since the plaintiff refused to consent to the changed IEP that had been proposed by the school, she had waived her ability to obtain any § 504 relief. The plaintiff then filed suit alleging that the school’s conduct violated § 504 of the Rehabilitation Act as well as title II of the ADA.

The court first began by discussing the three different laws. As mentioned above, IDEA requires that all children with disabilities have access to a free appropriate public education. It does so through the use of the IEP, which is a written statement setting forth: the child’s present performance; the goals and objectives; specific services enabling the child to meet those goals; and evaluation criteria and procedures to determine whether the child has met the goals. A school district cannot implement an IEP without the informed consent of the parent. Where parents revoke consent for such services or do not give consent, the school district has to cease providing special education related services and is under no further obligation to develop an IEP for the child. That said, IDEA make perfectly clear that nothing in that law is meant to interfere with or limit the rights, procedures, and remedies under other laws including the Constitution, the ADA, and § 504 of the Rehabilitation Act among others.

The court went on to discuss § 504 of the Rehabilitation Act and noted that § 504 of the Rehabilitation Act is much broader than IDEA. While § 504 of the Rehabilitation Act with respect to students with disabilities in grades K-12 also contains free appropriate public education language, the meaning of that term is different than the meaning of the term under IDEA. The focus with § 504 of the Rehabilitation Act is on the design of a child’s educational programs so that the child with a disability has an educational program that is as adequate as the needs of a child without a disability (what I would call the starting line analogy). The court noted that the procedures for designing a free appropriate public education under § 504 of the Rehabilitation Act are more vague than they are under IDEA (I have found that this can cut two ways. On the one hand, IDEA give you all kinds of protections and formalities to observe. However, all those protections and formalities can make the process more adversarial. On the other hand, § 504 of the Rehabilitation Act is much more flexible than IDEA, which can be a disadvantage, but also its flexibility and vagueness can make the process less adversarial and more collaborative. Therefore, there can be a strategic decision as to whether a student should opt for IDEA or § 504 coverage, assuming the student is eligible for both, which as mentioned above may not be the case).

Finally, the court mentioned the ADA briefly. Obviously, we have seen quite a bit of the ADA in this blog. The court mentions the ADA to say that the courts analyze title II of the ADA and § 504 the Rehabilitation Act claims the same because the substantive standards are the same (from this blog, we know that this isn’t exactly true, but nevertheless the courts continue to make this statement in their cases).

Once the laws were discussed, the court turned to the claims. With respect to that, the court said since IDEA as well as its implementing regulations specifically say that they are not meant to interfere with the rights given to students with disabilities under other laws, including the ADA and the Rehabilitation Act, a waiver of one law does not waive rights given under the other laws. This sounds good for the plaintiff. However, the school held a section 504 meaning subsequent to the plaintiff’s rejection of the IEP under IDEA, and at that section 504 meeting, a § 504 plan was proposed that was identical to the rejected IEP. Accordingly, the plaintiff’s rejected the 504 plan as well. Accordingly, the rejection of the 504 plan put the school district off the hook.

What is to prevent a school district from offering an IEP they know the parents will reject and then offering the same IEP in a subsequent 504 meeting knowing that the parents will reject that as well as a strategy for not having to provide services at all. Certainly, it is a strategy that the school district could try. However, the court did mention that there might be two checks on whether that strategy would prevail. First, if the plaintiff could show that the strategy was based on discriminatory intent, the strategy would fail. Second, since the laws are different, a school district is still under a continuing obligation under § 504 as well as the ADA to protect the student from discrimination while the student remains a qualified student with a disability. Accordingly, the school district has to offer and continue to offer, despite any rejection of an IEP or a § 504 plan, any accommodations or services ensuring that the student is provided an opportunity for free appropriate public education under § 504.

Breaking it down: First, this case tells us that a waiver under idea is neither a waiver under the ADA nor a waiver under § 504 of the Rehabilitation Act. Second, a parent perfectly has the right to reject an IEP that they do not believe is appropriate. That rejection will prevent services under IDEA. However, that rejection would not prevent services under the broader law of § 504 of the Rehabilitation Act, or for that matter the ADA as well. If the school were to offer the same rejected IEP as the § 504 plan, the parent would be free to reject that also. However, in that eventuality, the school would be off the hook, unless either of two exceptions apply. The two exceptions being if the plaintiff could show that the offering of the § 504 plan identical to the rejected IEP plan was based on discriminatory intent, then the school would have a problem. The other exception being if the school refused to provide any § 504 services whatsoever regardless of whether the student was eligible for those services once the § 504 plans had also been rejected. In short, what this comes down to is should a parent reject an IEP, there is a fallback to § 504 planning. Should the § 504 planning process also break down, because the school district is under a continuing obligation, the parent should continue to try and negotiate some sort of plan so that the child can continue to receive § 504 services. On the school district side, there are many different approaches you can take. First, the school system might start the person in a § 504 plan and then depending upon how it goes move that person into the IDEA framework should the student be eligible for IDEA. If the student is in the IDEA framework already, the school should be in a negotiation process with the parent. If that process breaks down, then the student would drop into §504 planning. As a preventive law measure, one wonders why the § 504 plan would have to be the same as a rejected IEP plan. It would seem that many problems could be prevented if a whole new negotiation process was opened up and the parties reached a mutual conclusion as to what should be in the § 504 plan. It would be to the school’s advantage to have a working § 504 plan in such a situation as § 504, which the court noted above, while more vague is also more flexible than IDEA. Should somehow there be no alternative but to offer the same rejected IEP as a § 504 plan, the school would need to be prepared to make sure that it is showing that parent that it continues to act even after the rejection in accordance with its continuing obligations to offer free appropriate public education, as § 504 defines it, to the student.

discriminatory intent

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