Understanding the ADA

The Blog of William D. Goren, J.D. LL.M.

motivating factor

Causation Under ADA and Rehabilitation Act and a Bonus: LGT Goes to Supreme Court

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Hope everyone had a happy Easter and, as in my case, a happy start to the Passover holiday. Today’s blog entry come from one of the blogs that is in my blog roll, Wait a Second. The case is Natofsky v. The City of New York decided on April 18, 2019 out of the Second Circuit. It is a case involving a hard of hearing individual that was terminated from a highly paid position with the City of New York. He claimed that his hearing loss was a motivating factor in the termination. The City defended on the ground that motivating factor was not the proper rule. Here is the other thing. It wasn’t an ADA case at all. Rather, it was a case involving the Rehabilitation Act, New York law and New York City law. Finally, the District Court adopted as the causation standard a sole cause standard. As usual, the blog entry is divided into categories and they are: majority reasoning; dissent’s reasoning; and takeaways; and just in. The reader is free to focus on any or all of the categories.

I

Majority Reasoning

  1. The Rehabilitation Act provides at 29 U.S.C. §794(a) that no individual can be subject to discrimination in any program or activity receiving Federal financial assistance solely by reason of his or her disability.
  2. On the other hand, the ADA at 42 U.S.C. §12112(a) makes it unlawful for an employer to discriminate against an individual on the basis of disability.
  3. In 1992, Congress amended the Rehabilitation Act to add a provision stating that the standards used to determine whether the Rehabilitation Act has been violated in a complaint alleging employment discrimination are the standards applied under Title I of the ADA. 29 U.S.C. §794(d).
  4. Whether §794(d) requires the ADA causation standard is a matter of first impression in the Second Circuit, and the court holds that an employment discrimination claim under the Rehabilitation Act is the same causation standard as an employment discrimination claim under the ADA.
  5. An established canon of construction says that a specific provision controls over one or more general application. §794(d) is more specific than §794(a), and therefore, trumps the causation standard expressed in §794(a) in the employment discrimination context. In other words, §794(a) establishes a general causation standard applicable to most discrimination claim brought under the Rehabilitation Act, but §794(d) [the opinion actually has a typo here calling it §749, but I am sure that will be corrected later], removes employment discrimination claim from the application of §794(a)’s general causation standard by mandating the ADA’s causation standard.
  6. In a footnote, the court noted that the point of view that §794(d) trumps §794(a) in Rehabilitation Act employment cases is not a universal point of view. In particular, the Fifth Circuit reached the opposite conclusion. Even so, the Second Circuit says it has good reason to disagree with the Fifth Circuit because §794(d) came later in time and speaks specifically to causation in employment discrimination cases brought under the Rehabilitation Act. Further, establishing §794(d) as a carve out for employment discrimination claims does not require Congress amending the language of §794(a)’s general causation standard because that standard continues to govern all discrimination claims arising under the Rehabilitation Act except for employment discrimination claims.
  7. While the Second Circuit previously has gone on record saying the Rehabilitation Act does not permit mixed motive suits, that is not the same as stating that the causation standard for Rehabilitation Act employment claims is a “solely by reason of” standard.
  8. Title I of the ADA at 42 U.S.C. §12112(a) prohibits employers from discriminating against a qualified individual on the basis of disability in regard to the hiring, advancement, or discharge of employees.
  9. Historically, the Second Circuit has applied a mixed motive test to ADA claims whereby the disability need only be a motivating factor in the employer’s adverse employment action but need not be the sole but for cause. At the time of those cases, the ADA prohibited discriminatory acts that were engaged in “because of,” a disability, instead of “on the basis of,” which is the case now.
  10. The mixed motive test originates from Title VII at 42 U.S.C. §2000(e)-2(a)(1), which prohibits employment discrimination “because of,” an individual’s race, color, religion, sex, or national origin. Under Title VII, plaintiffs can prevail if they show that the discrimination was a motivating factor in the defendant’s adverse employment action. That said, a defendant can avoid all liability if it can prove that it would have taken the same action regardless of any impermissible consideration.
  11. Citing to Gross, which we discussed here, and to Nassar, which we discussed here, the Second Circuit said that the ADA does not include a set of provisions like Title VII’s §2000e-2(m) that permits a plaintiff to prove employment discrimination by showing the discrimination was a risk motivating factor in the adverse decision. Further, no express instruction from Congress in the ADA itself exists that the motivating factor test applies.
  12. When Congress added §2000e-2(m) to Title VII, it contemporaneously amended the ADA but did not amend the ADA to include a motivating factor test.
  13. The Fourth, Sixth, and Seventh Circuits currently require a plaintiff alleging a claim of employment discrimination under the ADA to prove that discrimination was the but for cause of any adverse employment action.
  14. Absent from the ADA is anything like §2000e-2(m), which establishes a mixed motive test.
  15. While the ADA does incorporate §2000e-5(g)(2)(B) that cross references §2000e-2(m), that is of no help because that section deals exclusively with the remedies available to plaintiff’s that have first proven of violation under §2000e-2(m), which makes no mention of disability.
  16. By incorporating §2000e-5, into the ADA, it can be assumed that Congress was aware that some of those provisions would apply only to Title VII cases and not to the ADA.
  17. Citing to Gross, the court finds no reason to hold that any meaningful difference exists between “on the basis of,” “because of,” or “based on,” that would require any other causation standard than but for.
  18. Nothing in the legislative history of the ADA indicates that “on the basis of,” was supposed to lower the causation standard for employment discrimination claims below the traditional but for standard. The legislative history that does exist suggest that the language was changed to decrease the emphasis on whether a person has a disability and not to lower the causation standard.
  19. The evidence is simply not there for the plaintiff to prevail on a but for causation standard.
  20. Plaintiff also alleged a cat’s paw theory of liability, which allows for a discriminatory motive to be imputed to a final decision-maker if the decision-maker’s adverse employment action was proximately caused by a subordinate having a discriminatory motive and intended to bring about the adverse employment action. While cat’s paw liability applicability to cases outside of the mixed motive context is an important one, the court decides to decline the opportunity to take on that question because defendants waived any objection to proceeding under that theory.
  21. Even assuming cat’s paw liability applies, the evidence is simply not there to justify application of the doctrine against plaintiff’s supervisors.
  22. The facts aren’t there to allow plaintiff’s failure to accommodate claims to go forward.
  23. The facts are also not there to allow plaintiff’s retaliation claims to go forward.

II

Dissent’s Reasoning (Judge Chin)

  1. While a but for causation standard applies to the retaliation claim, discrimination and failure to accommodate claims brought under Rehabilitation Act are governed by the same standards that courts have uniformly applied for more than two decades, i.e. mixed motive.
  2. The issue is whether the ADA continued to use a motivating factor standard in light of the 2000 amendment to the ADA and the Supreme Court’s decision in Gross. Judge Chin believes the answer to that question is yes.
  3. Gross does not apply to ADA claims. That case was an Age Discrimination in Employment Act and not an ADA case.
  4. In Gross, the court specifically mentioned that Title VII and the Age Discrimination in Employment Act are set up in fundamentally different ways with respect to the relevant burden of persuasion. That isn’t the case with the ADA as the ADA incorporates the powers, remedies, and procedures of Title VII. Therefore, different rules apply to the ADA and to the Rehabilitation Act than they do to the Age Discrimination in Employment Act.
  5. In Gross, the Supreme Court held that Age Discrimination in Employment Act claims are governed by the but for standard because the court had never held that Title VII’s motivating factor standard is applicable to Age Discrimination in Employment Act claims, and because Congress neglected to add a motivating factor provision to the Age Discrimination in Employment Act when it amended Title VII to add §§2000e-2(m) and 42 U.S.C. §2000e-5(g)(2)(B) while contemporaneously amending the Age Discrimination in Employment Act in several other ways.
  6. ¶II5 simply cannot apply to the ADA. Motivating factor standard has governed the ADA cases for more than two decades. Further, when Congress amended Title VII in 1991 to include the motivating factor language, it incorporated the motivating factor language into the ADA because the ADA at 42 U.S.C. §12117(a) explicitly refers to and adopts the enforcement provisions of Title VII, including §2000e-5. Therefore, citing to a dissenting opinion in Lewis v. Humboldt Acquisition Corporation, which we discussed here, you simply cannot draw the same inference from Congress’s actions as the Supreme Court did in Gross for Age Discrimination in Employment Act claims when it comes to the ADA.
  7. The 2008 amendment to the ADA show that Congress wanted to retain not eliminate the motivating factor standard. In particular, the primary purpose of the 2008 amendments was to reinstate a broad scope of protection to be available under the ADA because several Supreme Court cases had narrowed that scope of protection. Thus, Judge Chin fails to understand how the majority can posit that the 2008 amendments warrant deviating from the motivating factor standard that had been applied for years before the amendments.
  8. Congress could have changed the ADA’s causation standard with the 2008 amendment but did not do so. Where Congress fails to disturb a consistent judicial interpretation of the statute, that provides indication Congress at least acquiesces in if not affirms that interpretation.
  9. Since Congress amended the ADA to reject an interpretation of the ADA that was not aligned with congressional intent, that demonstrates it is likely it would also have done so for the ADA’s causation standard if courts were applying the wrong standard. The fact that Congress amended the ADA to reject an interpretation of the ADA not aligned with congressional intent demonstrates it is likely it would have done so for the ADA’s causation standard if the courts in applying the motivating factor standard were applying the wrong standard. That they did not do that indicates at least implicit acceptance of the motivating factor standard.
  10. While the ADA does not explicitly incorporate §2000e-2, it does incorporate §2000e-5. Further, §2000e-5(g)(2)(B) specifically refers to the motivating factor standard. Interpreting the ADA to require a but for standard of causation, renders that provision irrelevant and superfluous. A statute need to be construed so that it’s effect given to all of its provisions so that no part of it is inoperative, superfluous, void, or insignificant.
  11. Nothing indicates that Congress chose not to incorporate §2000e-2 into the ADA with the intent for a stricter causation standard to apply. Indeed, if that had been congressional intent, it would have omitted §2000e-5(g)(2)(B). It also would surely have explained why it was making such a significant change and Congress did not do so.
  12. The ADA’s legislative history makes clear that Congress intended claims under the ADA to continue to have the same causation standard claims under Title VII. More particularly, when Congress enacted the ADA, it intended for the ADA’s remedies to parallel Title VII’s remedies because the remedies should remain the same for minorities, women, and for persons with disabilities.
  13. A House report explained that if the powers, remedies, and procedures, for title VII change, then identical changes under the ADA for persons with disabilities will also be made. That is, by retaining the cross reference to Title VII the committee’s intent was that the remedies of Title VII currently and as amended in the future will be applicable to persons with disabilities.
  14. Since the Rehabilitation Act incorporates the ADA’s causation standard, the motivating factor standard applies to plaintiff’s claims.
  15. Plenty of evidence exists that plaintiff’s hearing loss motivated the adverse decision, in this case termination.

III

Takeaways

  1. A question not considered by this case is whether the Rehabilitation Act outside of employees of the federal government, even applies to employment situations. We discussed that question in this blog entry. Clearly, over the years, the courts have held that it does, but it isn’t a settled question. The plain language of 29 U.S.C. §794(d) would seem to suggest that the Rehabilitation Act does apply to employment outside of federal employees.
  2. I don’t think it is particularly controversial to say that when it comes to employment cases that the causation standard under the ADA and the Rehabilitation Act are the same. The controversy is over just what “on the basis,” means.
  3. If but for causation is not solely by reason of causation, then what is it? Could it be “necessary cause,” which we discussed here?
  4. In employment discrimination matters, invariably there are more than one cause associated with the adverse decision. In a but for jurisdiction, what do you do then? This happens all the time in tort law. When I was teaching tort law to paralegals and got to this concept, I would mimic the scarecrow from the Wizard of Oz. When you have more than one cause, but for becomes extremely problematic. In tort law, the courts over the years fix that problem by saying where more than one but for cause exists, substantial factor is the principal that comes into play. Perhaps, that is what the courts mean by but for causation even if they are not using the term substantial factor. Since substantial factor is not being used where more than one cause exists, it is very unclear just what but for means. Maybe, it means, “substantial factor?” Maybe, it means, “necessary cause?” Maybe, none of those are accurate.
  5. Nassar, as we discussed here, clearly states that retaliation is one thing but status-based discrimination is something else. Accordingly, that presents a strong opening to argue that mixed motive is in play for non-retaliation ADA claims.
  6. Regarding legislative history, you really have to dig for it (I mean really dig), but legislative history discussing “on the basis,” does exist that says it was congressional intent in amending the ADA to retain McDonnell Douglas when it comes to proving up ADA discrimination. You can’t retain McDonnell Douglas without engaging in mixed motive analysis.
  7. Title I and Title III both use “on the basis,” language for causation. Title II uses by reason of. The Rehabilitation Act uses, “solely by reason of.” If the majority is to be believed, you wind up with different causation standards across the Titles of the ADA. That is, under Title II of the ADA, you would have a more generous causation standard for plaintiffs than you would under Title I and Title III because Title II uses “by reason of,” and Rehabilitation Act uses, “solely by reason of.” This doesn’t make a lot of sense.
  8. The problem with the but test for is multiple causation, which is always present in employment discrimination matters. If courts are going to continue to apply this test in the future, more clarity is needed. It will be interesting to see whether they adopt necessary cause or substantial factor in those situations. Ultimately, either Congress or the Supreme Court and then possibly Congress again are to have to figure this out. The 2020 elections may have a lot to do with this.
  9. The court finds no reason to distinguish between “because of,” and, “on the basis of.” That doesn’t make a lot of sense to me because why would Congress change the terminology if the change was superfluous or meaningless?
  10. Substantial factor and necessary cause would both allow for a cat’s paw theory of liability.
  11. Hard to understand how getting rid of “because of,” in favor of “on the basis of,” somehow leads to the conclusion that the amendments to the ADA imposed a higher causation standard than what had been previously the case. As the dissenting judge noted, the amendments to the ADA were designed to overrule a whole bunch of cases from the Supreme Court severely narrowing the ability of persons with disabilities to be protected under the ADA. Making the causation standard a higher bar for plaintiffs than what had been previously would contradict those efforts. Also, Congress was quite clear in the ADA to make clear that the Supreme Court got some of the cases, the Sutton trilogy and Toyota Motor, So, why wouldn’t have Congress been clear that the causation standard was also out of whack?
  12. When the causation issue gets to the Supreme Court, the key is going to be whether the court as configured at that time will go off on the distinction Justice Kennedy made in Nassar about status-based discrimination. If so, then mixed motive is in play. Also, if the Supreme Court decides to go with but for, hopefully it will clear up what that means when there is multiple causation involved, such as by adopting a substantial factor test or a necessary cause test.

IV

Just In

 

 

Yesterday, the United States Supreme Court granted cert. in three cases discussing whether LGT individuals are protected under title VII of the Civil Rights Act. We have discussed all of that here and here. With respect to transgender, I am going to go out on a limb here and say that it won’t even be close that transgender is protected under title VII of the Civil Rights Act because Price Waterhouse prohibits gender stereotyping. By definition, discrimination against a transgender individual involves sexual stereotyping.

With respect to sexual orientation, that is going to be a much more difficult case. If the configuration of the court remains the same, I would expect it to be a 5-4 decision with Justice Kavanaugh being the swing vote (Chief Justice Robert dissented in both Obergefell and Windsor). Justice Kavanaugh is very proud of the diversity of his clerks. One also has to wonder what impact, if any, the confirmation hearings will have on any of this. Finally, I did a Westlaw search, and my search did not reveal any cases that Judge Kavanaugh had with respect to LGBT rights while on D.C. Circuit (other bloggers are reporting there are indeed none).

So, since the decision on these cases will come down next term, expect it to be a huge campaign issue. It is entirely possible that the decision in these cases could come down just a few months before 2020 elections. Also, based upon the current case law, it is entirely possible that by the end of these decisions, transgender individuals will be protected under title VII but lesbian and gay individuals will not be. In that case, if there is a Democratic wave in 2020 (Buttigieg presidency too?), which there may not be, expect Congress to specifically amend title VII of the Civil Rights Act to include LGBT explicitly.

Interaction Between FMLA and ADA: A Whole Lot Going on

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The best weekend in sports is no doubt the first and second round of the NCAA basketball tournament. I hope your bracket survived. The UMBC VA game was amazing (even my 14-year-old daughter was into it), and there were plenty of other upsets along the way as well. I am in two pools (brother and brother-in-law), and Cincinnati’s loss did not help me. However, I do have Villanova and Gonzaga in the final game, and so I am okay that way (I have Gonzaga winning in one pool and Villanova winning in the other). Good luck to everyone with their brackets.

As everyone knows, I am not afraid to blog on cases blogged on by others. Today’s case is a first because I don’t think I have ever blogged on a case mentioned here by Eric Meyer of Fisher Broyles in his Employer Handbook blog, an ABA Hall of Fame blog that can be found in my blogroll. So, today is a first. My thanks to Eric for alerting me to the case. The case, Lindstrom v. Bingham County, Idaho, out of the Idaho District Court decided on March 15, 2018, is a combination of FMLA and ADA . As usual, the blog entry is divided into categories and they are: facts; court’s reasoning in denying summary judgment on the FMLA claim; court’s reasoning in denying summary judgment on the ADA and the equivalent Idaho Human Rights Act claim; and takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Plaintiff was employed at the Rattlesnake Landfill located outside of Shelley, Idaho as the landfill manager from July 26, 2004, until March 10, 2015. It was a full-time position, and his duties generally included operating the scale house when customers arrived, operating heavy machinery throughout the landfill, and supervising other employees. On September 16, 2014, plaintiff was taken to the hospital because he was ill. Subsequent visit with doctors revealed multiple health issues including blurry vision and low blood sugar. As a result, one doctor told the plaintiff to refrain from operating heavy equipment for a time, and another doctor suggested taking time off work to address the health concerns.

On September 30, 2014, plaintiff signed a request for FMLA leave. That form noted that plaintiff’s FMLA leave started September 24, 2014 and would last for 12 weeks until December 16, 2014. During that time, plaintiff took medications and was able to improve his vision and level out his blood sugar. However, the condition with his feet, which was caused by diabetes, did not get better or worse.

During November and December 2014, plaintiff kept in contact with the County’s Human Resources Director and discussed various work option for him upon his return. Plaintiff indicated that he wanted to try to do some work at Rattlesnake to see how it went. However, that never took place. Plaintiff’s intent was to work mainly in the scale house, which he had done previously when his feet were causing him pain.

Plaintiff did not have a doctor’s note immediately available upon completion of his FMLA leave and did not show up for work on December 17, 2014. Even so, the County continued his time off as a paid leave of absence. On December 31, 2014, plaintiff received a note from a doctor and provided it to the County on January 2, 2015. The County asked the plaintiff to work with medical providers to determine the details of any work limitations and to fill out a fitness for duty form.

Plaintiff complied with that and furnished two fitness for duty forms. With some variations, both doctors recommended that plaintiff not stand or walk for long periods because of the condition with his feet along with other minor restrictions and suggestions.

As a result of the fitness for duty forms, the County determined that Rattlesnake was not a good fit for the plaintiff and instead offered him a position at the central transfer station located in Blackfoot, Idaho. The County gave him few details about that job, but did say that he would have a stool to sit on. While plaintiff initially agreed to attempt that position, when the day for him arrived to start that job, he left a message with the supervisor indicating that he would not be able to make it for medical reasons. He later indicated that he wasn’t comfortable driving the significantly greater distance to that job as opposed to his usual 3-4 mile commute to Rattlesnake. After meeting with his doctors, the doctors about the plaintiff that driving longer distances and a slower paced job close to home, essentially Rattlesnake, would be best for the plaintiff.

On March 5, 2015, the Board of Bingham County’s Commissioners passed a resolution reducing the hours of operation at Rattlesnake for financial reasons. They then implemented a reduction in force and terminated the plaintiff and another part-time employee. After exhausting administrative remedies, plaintiff brought suit and the County eventually moved for summary judgment.

 

II

Court’s Reasoning in Denying Summary Judgment on the FMLA Claim

  1. Under the FMLA, if an employee can’t perform the essential functions of the position because of a physical or mental condition, he is not entitled to restoration of a job upon return. However, he may have rights under the ADA.
  2. What were the essential duties of the job, how those essential duties were defined, and how fieldwork was allocated at Rattlesnake were all facts in hot dispute. Further, the County could not point anything in the record actually showing that plaintiff could not perform the duties as outlined.
  3. In the past, plaintiff had worked internally with his coworkers to switch duties when he was having a difficult time, and the County provided no explanation as to why that type of scenario could not have continued upon his return.
  4. No legal authority exists for the proposition that a person on FMLA leave must return to work at the specific time the FMLA leave ends or risk losing his right to reinstatement. In fact, FMLA regulations say that the timing is not so rigid. In particular, 29 C.F.R. §825.216 provides an employer can delay restoration to an employee who fails to provide a fitness for duty certificate to return to work. Importantly, that provision does not say the employer can fire an employee or that the employee’s right to reinstatement lapses or ends. Rather, it says that the employer can delay reinstatement. That is exactly what happened in this case. That is: plaintiff did not provide the form upon completion of the leave; the County requested it; plaintiff produced it; and then the parties work towards a solution. Further, 29 C.F.R. §825.312 says an employer may not terminate the employment of the employee while awaiting a certification of fitness to return to duty.
  5. While an employee cannot wait around and return to work at his or her convenience, there is nothing indicating that the day after leave expires is the sole date upon which a person can return without forfeiting his or her rights, especially in this case where the County admittedly chose to work with the plaintiff regarding his return and even extended it with paid time off.
  6. Nothing in the C.F.R. puts a timeframe on the required fitness for duty form.
  7. While it is logical to assume that in order to avoid any downtime the employee should provide the form immediately after the 12 weeks, the regulations are silent with respect to timing.
  8. Since federal regulations allow for delay for an employee to get paperwork, that suggest that there is not a strict timing requirement. Further, this case did not involve extreme behavior where the plaintiff put off returning to work: his leave ended on December 16, 2014; he got a note from a doctor on December 31, 2014; and submitted the same to the County on January 2, 2015. The County then asked for the official fitness for duty forms and the plaintiff provided two of those.
  9. No indication exists that the County told the plaintiff he had to submit the form prior to December 16, nor was there any indication that plaintiff was not diligent in getting the requested forms to the County.

III

Court’s Reasoning and Denying Summary Judgment on the ADA and the Equivalent Idaho Human Rights Act Claims

  1. Once an employer becomes aware of the need for accommodation, the employer has a mandatory obligation to engage in an interactive process with the employee in order to identify and implement appropriate reasonable accommodations.
  2. What is a reasonable accommodation is typically a jury question.
  3. Just what were the essential duties of plaintiff’s job were not clear-cut.
  4. There are several questions of fact in dispute that are critical to the case, including: whether plaintiff could do the work; what were the essential functions of the job; and why plaintiff could not trade the functions of the job off with other employees as he had done prior to his FMLA leave.
  5. Whoever breaks down the interactive process bears the liability. In this case, who was responsible for that breakdown of the interactive process is in hot dispute. In particular, both sides interacted with each other but neither side liked the other side’s suggested options. So, whether those communications and ideas were adequate under the ADA is a question the trier of fact must determine, i.e. a jury question.
  6. When trying to determine whether a person is a qualified individual under the ADA, it is absolutely critical to remember that the question is whether the individual can perform the essential functions of the job with or without reasonable accommodations. As mentioned in the above paragraphs, whether plaintiff could perform the essential functions of his job with or without reasonable accommodations is in hot dispute and material to the dispute as well.
  7. With respect to causation, the County’s Human Resources Manager admitted that the plaintiff’s disability played a role in the decision to reduce plaintiff’s hours at Rattlesnake. Accordingly, if the reduction in plaintiff’s hours was the moving factor behind the reduction in force resulting in his losing employment, it is reasonable to infer that plaintiff’s health issues were a consideration in his termination. Since there appears to have been multiple factors with respect to the reduction in force, it all should be presented to the jury for resolution.

 

IV

Takeaways:

  1. Nothing in the FMLA requires that the process of going on FMLA leave and the certification process of coming back from FMLA leave factor in reasonable accommodations. However, since the FMLA applies to employers with 50 or more employees and title I of the ADA applies to employers of 15 or more employees, an employer would have to be out of their mind not to factor in the with or without reasonable accommodation part when it comes to the FMLA certification process. On the plaintiff’s side, the distinction is important for pleading purposes. A defendant would be perfectly justified in getting an FMLA claim dismissed if that claim focused on the reasonable accommodation piece, but that would not be the case if that claim was phrased as an ADA claim.
  2. Make sure your essential duties of the job are current, accurate, and reflect what is actually happening on the ground.
  3. If a reasonable accommodation is working, why mess with it?
  4. Employers want to review their policies and figure out the timing for when paperwork must be in with respect to returning from FMLA leave. You do want to build a least a little bit of flexibility into the process.
  5. What is a reasonable accommodation is typically a question for the jury.
  6. As we have discussed before, whoever breaks down the interactive process bears the liability.
  7. Figuring out who broke down the interactive process is a question for the jury, at least in close calls.
  8. Whether a person is a qualified individual with a disability under the ADA depends upon whether that person can do the essential functions of the job with or without reasonable accommodations. Don’t forget about the, “with or without reasonable accommodation piece.”
  9. Whether a job can be performed with or without reasonable accommodations is a question of fact.
  10. Interesting, that the court talks about the plaintiff’s health issues undoubtedly being a consideration in the termination. The court doesn’t address the issue of whether causation is sole cause analysis or causation is a motivating factor analysis. See this blog entry.
  11. Not addressed in this case, but discussed here, is the important question of whether extending leave beyond FMLA leave is a reasonable accommodation under the ADA.
  12. For another FMLA ADA interaction problem, check out this blog entry, which discusses forcing FMLA leave instead of engaging in the interactive process.
  13. Don’t forget about reassignment as a reasonable accommodation.

Can Employees Trust Human Resources? Maybe That’s Not the Right Question? Timing of Reasonable Accommodation Request and Causation under the ADA and the Rehabilitation Act Are Not the Same

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Robin Shea’s latest blog entry, which can be found here. Discusses some of the things people say about HR, including: “HR protect the company’s interests, not yours;” “if you go to HR, HR reports the complaint back to the manager and then you are labeled a malcontent;” “I have yet to see a human resource office show any compassion or follow up on anything;” “Typically the director of HR is lazy and incompetent;” “HR doesn’t give a hoot about the employees;” and “if I were having a problem at work, the last place I would go is HR.” Of course, being in practice as long as I have been, I have a couple of my own that I have heard: “HR is mean, nasty and vindictive;” “HR people think they are lawyers when they are not;” “HR thinks it knows the law better than lawyers;” and “HR are just hatchet folks.”

I don’t think the question of whether employees can trust human resources is the right question. Rather, the question should be whether employees can trust human resources to do the right thing? It is a completely different question. That is, as Robin points out in her blog entry, HR works for the company and not for the employees. Of course, that means HR is representing the company’s interest. However, that doesn’t mean that representing the company’s interest involves not doing the right thing, which can mean advocating that an employee’s request be dealt with the way it should be; a point Robin makes at the end of her blog entry referenced above. It is also a key point of this week’s blog entry as well.

Today’s case is such a case where the HR person did the right thing, and as a result, was specifically lauded many times in an opinion for doing so. Our case is Van Drasek v. Burwell. The case is also useful for discussing the timing of accommodation requests and for seeing the difference in causation between the ADA and the Rehabilitation Act. As is typical, I have divided the blog entry into categories: facts; more facts and HR does the right thing; court’s reasoning on failure to accommodate; court’s reasoning on intentional discrimination and retaliation; and takeaways. The reader is free to focus on any or all of the categories.

I
Facts:

Plaintiff was diagnosed with a type of bipolar disorder that produces symptoms such as depression and anxiety that substantially limits many major life activities including sleeping, thinking, concentrating, processing information, impulse control, and cognitive abilities. Even so, plaintiff enjoyed a long and successful career as a chemist with accomplishments in the field, including a graduate degree in geochemistry, six publications, as well as awards and commendations for her performance. She also worked for eight years at the United States Department of Agriculture where she consistently received fully successful performance ratings. She left her post at the United States Department of Agriculture only because the particular position she held was capped at a lower salary and performance level, which meant that she had no room for promotion. In April 2008, she began working as a chemist for the FDA. She did not inform anyone at the FDA of her bipolar condition diagnosis nor did she request any accommodations at the time she began work there. By August 2009, she was having difficulty at work and sought private medical attention. She did not share with anyone at the FDA that she was seeking and receiving medical attention for her previously diagnosed bipolar disorder. In April 2010, her immediate supervisor issued a performance improvement plan, a document advising her that her on-the-job performance was unacceptable and she had 75 day to improve her work. The plan stated that her performance failed to meet minimally acceptable levels in that she failed to demonstrate technical knowledge and competency in her field and that she failed in program and project management and performance given repeated deficiencies in her analysis. It also said that the plaintiff did not seek guidance or was not capable recognizing when she needed assistance and repeatedly failed to meet deadlines. Finally, the plan described what she needed to do in order to bring her performance up to minimally successful standards and gave her 75 day to improve. It also noted that failure to improve could lead to demotion or removal. More than 180 days after receiving the document, the plaintiff contacted her treating physician and asked her to fill out a family medical leave act form, which the physician did. However, the plaintiff did not give the form to her supervisor or anyone else at the FDA prior to being contacted by her supervisor once again regarding her performance. Six months after the plan was issued, her supervisor informed the plaintiff that she still had not improved and that she was recommending her removal. Four days later, the plaintiff notified her supervisor that she had a disability, that she was in the process of getting her FMLA paperwork together, and that she was requesting accommodations. She followed up a week later by submitting the FMLA paperwork and then hired an attorney to write a letter asking that issues involving the proposed removal and the request for accommodation be addressed. Over the next few weeks, plaintiff’s attorney contacted the FDA’s reasonable accommodation specialist to ascertain the agency’s process for requesting accommodations. She thereafter submitted a formal written request for accommodation, including a letter from her physician detailing the symptoms of her disability and its effect on her job performance. That letter noted her disability and said when the anxiety becomes extreme, it could be exceedingly difficult for the plaintiff to hear and understand instructions, to remember instructions, to comprehend instructions, and to follow instructions. The letter also recommended three specific accommodations including: written instructions for assignment; additional time to complete tasks; and reassignment to a different position. In December, the plaintiff submitted a formal written response to her proposed removal in which she sought to explain why a current work environment was causing her anxiety thereby aggravating her symptoms. In particular, she claimed that another chemist in her workgroup had created an intimidating and dismaying environment by yelling and cursing at the plaintiff, responding in a very sarcastic fashion to her questions, and providing unwarranted criticism of her work. She further alleged that she and others had complained about that person’s behavior to other people in the agency but that no one ever took action.

II
More Facts: HR Does the Right Thing

Once the plaintiff submitted a request for accommodation, Saundra Anderson, the FDA’s reasonable accommodation specialist, informed the plaintiff’s supervisor that she had an obligation to notify the plaintiff of the agency’s eventual decision and a duty to engage in an interactive dialogue with the plaintiff regarding the requested accommodation. When the plaintiff’s supervisor expressed hesitation saying that the FDA did not need to accommodate because her proposed removal happened before the agency was even aware of her disability and before the accommodation request was made, the reasonable accommodation specialist responded by explaining an employee can request accommodations at any time and the agency must respond. After the FDA assigned an agency physician to evaluate the case, that physician wound up agreeing written instructions and extra time were appropriate accommodations, but did not recommend reassignment saying insufficient information existed to act on that recommendation. Neither that physician nor the plaintiff’s supervisor reached out to the plaintiff or the plaintiff’s physician to seek additional information about the reassignment request. The FDA’s physician report was forwarded to the plaintiff’s supervisor in January 2011 along with the statement from the FDA’s reasonable accommodation specialist saying that the plaintiff’s supervisor was required to respond to the accommodation request within 15 days. Even so, plaintiff’s supervisor failed to meet that deadline, and some 75 days later informed the reasonable accommodation specialist that she would not be accommodating the plaintiff. When the reasonable accommodation specialist suggested that reassignment should be offered to the plaintiff, plaintiff’s supervisor allegedly made disparaging remarks to two other FDA employees about how the reasonable accommodation specialist didn’t get it. In addition, when the reasonable accommodation specialist and others in the FDA’s human resource department told plaintiff’s supervisor that reassignment paperwork for the plaintiff was being processed, plaintiff’s supervisor wrote email to other FDA employees stating she needed to go full steam ahead and get the removal decision issued before the reasonable accommodation specialist did too much work, and that she didn’t think she could prevent the reasonable accommodation specialist from reassigning the plaintiff unless she removed the plaintiff first. On April 18 of 2011, the plaintiff’s supervisor formally denied the plaintiff request for accommodation and discharged her from federal service effective April 22, 2011 after stating that there was no position in the office or division to which she could be reassigned. Since the plaintiff was a federal employee, the ADA was not involved, and she brought suit under the Rehabilitation Act alleging failure to accommodate a disability; intentional discrimination because of her disabilities; and retaliation for requesting or seeking accommodations.

III
Court’s Reasoning on Failure to Accommodate or The reasonable accommodation specialist for President?

In denying the motion for summary judgment by both the plaintiff and the defendant on the failure to accommodate claim, the court reasoned as followed:

1. It is absolutely true that the plaintiff requested accommodations literally on the eve of her proposed dismissal. However, a request for accommodation of a disability is timely if the employer is in a position to respond to the request. So, while it is true that the plaintiff did not disclose her disability or request accommodations until months after her supervisor had warned her about her job performance and the consequences of failing to improve, nevertheless, the plaintiff did disclose her disability and sought various work-related accommodation before she was removed from her position.

2. EEOC guidance notes that the employer must make reasonable accommodations to enable the employee to succeed going forward and also notes that there is no deadline by which an employee must request an accommodation.

3. Office of Personnel Management regulations further require that an employee for whom removal has been proposed has the right to provide a written response, including providing any medical records, which the employer must consider before issuing a final decision on the proposed employment action. Further, Office of Personnel Management regulations specifically instruct that the agency allow an employee wishing to raise a medical condition that may have contributed to his or her unacceptable performance to furnish medical documentation. Also, while the preference is that employees submit such medical documentation before a proposed removal, the regulations make clear that the agency must still consider the documentation if it is not submitted until after the proposed removal has been suggested. Further, the regulations say that the agency is deemed to be aware of the reasonable accommodation duty where the employee offers medical documentation after the agency has proposed a reduction in grade or removal.

4. In short, where an employer still in a position to respond to request for accommodations because the requester is still employed, such request is timely and the employer has to consider it.

5. If you are the reasonable accommodation specialist, how would you feel if you read a court opinion that said this:

“Here, Von Drasek requested accommodation prior to being removed, and as it turned out, the FDA’s human resources specialist also specifically noted that the agency did, in fact, have a duty to attempt to honor this tardy request. This court finds that the specialist was right: Von Drasek’s request was timely, and thus, the FDA’s contention that it had no obligation to consider Von Drasek’s request for accommodations under the circumstances presented here is unavailing.”

Congratulations to Saundra Anderson. She gets what it means to be in HR. it is not whether the employees trust you in HR, but whether you can be trusted to do the right thing when the law demands such action. That is, she knew the statute and its implementing regulations and insisted that they be followed. Further, she didn’t back down when personnel did not want to do the right thing.

6. A question of fact existed as to whether the plaintiff could perform the essential functions of the employment position to which she sought reassignment to since she had a great track record prior to taking on the FDA position and she had a medical opinion stating that the particular environment at the FDA created an extremely problematic situation in light of her disability.

IV
Court’s reasoning on Intentional Discrimination and Retaliation

1. The intentional discrimination claim fails because under the Rehabilitation Act the applicable causation analysis is but for causation. That is, the Rehabilitation Act demands such a conclusion because the operative term is, “solely by reason of her or his disability.” Accordingly, motivating factor is not a proper consideration in Rehabilitation Act claims.

A. The ADA standard of causation is a lower standard than under the Rehabilitation Act because the word “solely,” does not appear in that Act when describing causation (doing the math: In title I and title III it is “on the basis of disability,” while in title II, it is, “by reason of disability.”)

B. A discrimination OR a retaliation claim brought under the ADA can rest on a motivating factor due to the difference in causation standards.

2. While it is true that the record clearly establishes that plaintiff’s supervisor personally disliked the plaintiff and wanted to have her removed, it also confirmed that the plaintiff’s supervisor had determined to set out on the path of firing her long before the plaintiff had revealed a disability to the FDA. Accordingly, it is impossible to say that the termination was solely by reason of disability and no reasonable jury could find otherwise.

3. The record is quite clear that the plaintiff was removed because of her past job performance and the FDA’s belief that she would not be able to satisfy the job requirements in the future and not because she requested an accommodation. Therefore, the retaliation claim for requesting an accommodation fails.

V
Takeaways:

1. It isn’t a matter of whether employees trust HR. They shouldn’t. HR works for the company. However, employees and the company have a right to expect that HR will do the right thing when it comes to ensuring that the company carries out labor and employment laws in the manner demanded by the applicable laws and regulations. That includes stepping up to the plate even when faced with resistance from personnel. It certainly would not have been an easy thing for the reasonable accommodation specialist to have acted in the way that she did, and you have to take your hat off to her. One wonders why legal counsel didn’t get involved at the point where there was clearly a dispute between the reasonable accommodation specialist and the plaintiff’s supervisor. Regardless, the reasonable accommodation technical specialist did the right thing.

2. It is pretty clear now that causation under the ADA is a lower standard than causation under the Rehabilitation Act. Nevertheless, especially when it comes to title III matters, it still may be useful to allege a Rehabilitation Act claim so as to open up the possibility of getting damages providing a showing of deliberate indifference can be made (admittedly a high standard, which we discussed here in this blog entry, but at least the possibility of damages exists, which is not allowed under title III of the ADA).

3. If you are an employer and have recommended termination of an employee, you still have the obligation to engage in the interactive process discussing reasonable accommodations regardless of when the employee makes the reasonable accommodation request. Also, be careful about rushing the employee out the door to avoid the strictures of this case as that may be indicative of not sufficiently engaging in the interactive process.

4. There is an interesting thing going on about what solely by reason means with respect to Rehabilitation Act claims. Does it mean “but for,” causation? Yes, it probably does, but that doesn’t answer the question because you could have more than one but for cause (see this case for example discussing this point, which I discussed in this blog entry). You see this all the time in tort law where if there is more than one but for cause, courts will go to a substantial factor test. On the other hand, the Rehabilitation Act does specifically say that causation must be, “solely by reason of disability.” Accordingly, an argument exists that Rehabilitation Act claims are something even beyond “but for,” causation and are “sole cause,” claims.

5. This court said that discrimination or a retaliation claim can be brought under the ADA using a motivating factor analysis with respect to causation. We have discussed this one before. I completely agree that with respect to a straight disability discrimination claim, motivating factor is in play, but it is a much harder case to make that it is in play with respect to retaliation claims. See this blog entry of mine.

6. On the plaintiff’s side, there can be real advantages to hiring an attorney early as the plaintiff did in this case even if that probably means paying the attorney hourly for that work.

7. When it comes to reassignment as a reasonable accommodation, the question is whether the person can do the job that she or he would be reassigned to with or without reasonable accommodations and not whether the person could do the job that he or she currently holds with or without reasonable accommodations (if things have gotten to this point, the answer to the latter question is obviously that they can’t).

8. When HR people step up and do the right thing, employers should reward them for doing so.