With or without reasonable accommodations

Lewis v. Union City Yet Again

August 26, 2019 by William Goren 1 Comment

Today’s blog entry is a case that I have blogged on before twice, here and here. On August 15, 2019, the 11^th Circuit came down with its second decision on this case, here. Since I have blogged on it before twice, there isn’t any need to cover the facts except through the court’s reasoning. The prior appeal to the 11^th Circuit just discussed the civil rights aspect of the case and not the ADA. This appeal to the 11^th Circuit discussed the ADA and revisited the civil rights claims. It also looked at municipal liability under §1983, which the court threw out. I don’t see a need to discuss the municipal liability section under §1983. Finally, there was a concurring and dissenting opinion. The concurrence agrees with dismissing the municipal liability claim and would have thrown out the ADA and civil rights claims as well. As usual, the blog entry it divided into categories and they are: court’s reasoning actual disability and regarded as; court’s reasoning qualified individual; court’s reasoning direct threat; court’s reasoning racial and gender discrimination claims; and takeaways. The reader is free to focus on any or all of the categories.

Court’s Reasoning Actual Disability and Regarded As

While plaintiff certainly had a physical or mental impairment with respect to her heart condition, she simply didn’t bring forth enough evidence to permit a conclusion that the physical impairment substantially limited a major life activity. For example, she testified that she had periodic shortness of breath, and her doctor testified that it could limit her ability to sleep. However, no evidence existed as to the severity, frequency, and duration of the episodes with respect to shortness of breath. Further, there wasn’t any evidence discussing the extent of plaintiff’s ability to sleep that could lead a reasonable jury to conclude she was substantially limited in a major life activity.
The ADA allows for a cause of action where the an employer regards an employee as having a disability.
Plenty of evidence existed to raise a genuine issue of fact as to whether plaintiff’s employer regarded her as having a disability. In particular: 1) Assistant Chief Brown in his June 17 letter referred to her chronic conditions and instructed her to complete FMLA paperwork thereby suggesting that he believed plaintiff had a medical condition warranting medical leave; 2) on July 1, Assistant Chief Brown prohibited plaintiff from returning to work until everything was cleared up with her doctor. He also said that her Dr.’s letter essentially made it impossible for her to work or be at work and concluded that she could not return until her doctor released her for duty. That email again referred to the possibility of plaintiff taking leave under FMLA; 3) the department’s own stated reason for putting plaintiff on leave, i.e. a fear for her safety in view of her heart condition, demonstrate the department’s belief that plaintiff’s medical condition set her apart from other police officers.
Looking to an EEOC guidance, an employer engages in prohibited conduct regarding a person as having a disability where it takes adverse action because it fears the consequences of an employee’s medical condition.

Court’s Reasoning Qualified Individual

A qualified individual under title I of the ADA is a person who with or without reasonable accommodation, can perform the essential functions of the employment position that he or she holds or desires.
Essential functions of the job are evaluated on a case-by-case basis after examining a number of factors. Courts do consider the employer’s judgment of whether a particular function is essential and may even cut the employer more slack when the employer is a Police Department. Courts also consider the EEOC seven factors as well.
The employer’s judgment as to what are the essential functions of the job is not by itself conclusive.
The city’s written job description for the position of detective nowhere mentions it is necessary for a detective either to carry or to be exposed to OC spray or a Taser shock. In fact, there is no such mention of any of that in an entire paragraph listing various physical demands of the job.
The work environment section states that a detective has to be willing to carry a firearm on and off the job and be mentally and physically capable of using deadly force if justified. However, it contains no reference to OC spray or Taser.
Plaintiff offered evidence that detectives previously were permitted the choice of what nonlethal weapon or weapons to carry. Further, neither party disputed that Taser International does not require trainee to receive a shock in order to become certified in Taser use.
Plaintiff clearly presented enough evidence to show that a jury would be justified in concluding that receiving a Taser shock or direct exposure to OC spray was not an essential function of her job. As a result, that means plaintiff was a qualified individual.
In a footnote, the court said that ample evidence existed that plaintiff could withstand indirect exposure to OC spray that would allow her to work inside the Police Department building if that option have been made available to her.

III

Court’s Reasoning Direct Threat

Plaintiff produced sufficient evidence that she is not a direct threat.
Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations. See 29 C.F.R. §1630.2(r).
Direct threat, as we have discussed previously here, has to be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job after considering, among other things, the imminence of the risk and severity of the harm. For this, the court specifically cited to Chevron USA Inc. v. Echazabal, which we discussed here and in numerous other blog entries as well.
The definition of direct threat requires an analysis of the individual’s ability to perform safely the essential functions of the job.

Court’s Reasoning Racial and Gender Discrimination Claims

Previously, the 11^th Circuit sitting en banc concluded that plaintiff failed to establish a prima facie case of intentional discrimination under McDonnell Douglas because her comparators were not similarly situated in all material respects. Thus, that particular aspect of the ruling is binding on this panel.
Even without similarly situated comparators, plaintiff can still get by summary judgment if he or she presents circumstantial evidence creating a triable issue concerning the employer’s discriminatory intent. After all, not every employee can produce a similarly situated comparator. Further, a proper comparator may not exist in every workplace. Therefore, a plaintiff always gets by summary judgment if he or she can present a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination.
A convincing mosaic can be demonstrated in a variety of ways, including: 1) suspicious timing, ambiguous statements and other bits and pieces from which an inference of discriminatory intent might be drawn; 2) systematically better treatment of similarly situated employees; and 3) the employer’s justification is pretextual.
Plaintiff presented a mosaic of circumstantial evidence raising a genuine issue of material fact as set forth in the paragraphs that follow below.
Union City initiated plaintiff’s indefinite administrative leave on June 17 and informed her on July 1 that she would not be permitted to return to work until she was medically cleared. Yet a week later, and despite plaintiff’s request to return to work and the police chief’s explicit denial of that request, Union City terminated her for being absent without leave.
Union City gave plaintiff no warning that if she exercised the option to use her accrued leave instead of being on non-pay status, she would be terminated upon taking that option.
Union City gave her no notice she had to file FMLA paperwork by any specific date nor did the department’s written FMLA policy provide any such deadline.
At no time was plaintiff told she would be terminated if her doctor failed to contact the department on the very first day the doctor returned from vacation.
There is also plenty of evidence that Union City’s stated reason for firing plaintiff were pretextual as discussed in the following paragraphs.
Plaintiff can show pretext in any of the following ways: 1) casting sufficient doubt on the defendant’s proffered discriminatory reason so as to permit a reasonable factfinder to conclude the employer’s reasons were not what actually motivated its conduct; 2) showing that the employer’s articulated reason is false and that the false reason led to the discrimination; or 3) establishing that the employer failed to clearly articulate and follow its formal policies.
One of the reasons offered by Union City was that her medical condition was permanent. However, evidence exists suggesting the department believed either that plaintiff was faking her medical condition or that her condition was not sufficiently serious to prevent her from working as a detective. In fact, the initial letter placing plaintiff on leave stressed that she had been cleared for full duty without restrictions after a heart attack and emphasized that the letter disclosing her chronic condition came as a surprise.
Plaintiff’s doctor testified that the Assistant Chief made clear to plaintiff’s doctor in a telephone conversation that he thought her letter was more a product of plaintiff’s influence than her unbiased medical judgment. In fact, the Assistant Chief at his deposition testified that he doubted plaintiff’s doctor truthfulness more generally.
Two of Union City’s police chief’s letters could reasonably be construed as indicating that plaintiff’s doctor would ultimately clear plaintiff for duty and that the medical condition, in the department’s view would not permanently prevent plaintiff from doing her job as a detective.
Plenty of evidence exists that the argument that plaintiff did not timely submit her paperwork was just a pretext.
Evidence existed permitting the conclusion that two Caucasian officers in a similar situation to plaintiff were treated differently. However, the white officers were treated more favorably than the plaintiff because they were given extended periods of time to attempt to demonstrate their physical ability they needed, but plaintiff was fired without warning.
A reasonable jury could find that Union City did not consistently exercise its authority in placing physically unfit officers on administrative leave and that Union City did not comply with its own policies.
One Caucasian officer was offered a transfer to a position not requiring him to continue taking the fitness test that he failed while plaintiff was fired without notice after 21 days of administrative leave and was offered no such alternative assignment before termination.
Union City had a history of working with others with a heart condition to allow them to receive a milder version of Taser training with respect to officers with heart conditions but that option was never offered to the plaintiff.
A Union City Lieutenant testified that the department treated women differently than men with regards to the cases assigned to them.
Plaintiff by her termination undoubtedly suffered an adverse action i.e. a change in the terms of her employment.

Takeaways

A regarded as cause of action does not require a substantial limitation on a major life activity. Thanks to the amendments to the ADA, it only requires the employer regard the person as having a physical or mental impairment.
The employer’s judgment as to what the essential functions of the job is not the be-all and end-all of things.
Keep your written job descriptions current.
Antidiscrimination policies for dealing with people with disabilities are always a good idea. Also, make sure those policies are implemented without favoritism and in a consistent manner. Keep in mind, when it come to the ADA, consistently doing an individualized analysis is where you need to go.
I’ve seen many folks get hung up on direct threat because they don’t read Chevron v. Echazabal. Remember, direct threat has to be based on a reasonable medical judgment relying on the most current medical knowledge and or the best available objective evidence. It also needs to be based upon an individualized assessment as well. I have also seen lots of entities make a mistake by not doing the individualized assessment.
This isn’t the first time we have seen convincing mosaic. We saw it here. What is interesting in this case, is that the 11^th Circuit says that convincing mosaic is a fallback were no comparators exist. In the Seventh Circuit, as we discussed previously, convincing mosaic is another way to deal with McDonnell-Douglas regardless of whether the proof is indirect or direct.
Insisting on a full return to work is always a bad idea. We discussed that issue here.
Remember, otherwise qualified/qualified is a question of whether the individual can do the essential functions of the job with or without reasonable accommodations.
Convincing mosaic is a fairly new idea. It will be interesting to follow what happens from here on out. Expect the United States Supreme Court to deal with it eventually.
The 11^th Circuit nicely lays out what is needed to show it convincing mosaic and what is necessary to show pretext.

Obesity as a Disability and the Case of a Legislator with a Disability Unable to do His Job

August 1, 2019 by William Goren 2 Comments

Today’s blog entry is a two-for-one. First off, with respect to being late this week, my daughter started her second year of high school today. So, this week was her last week of summer break, and as you can imagine, things were pretty hectic around here. But, we are now back to the school routine.

Turning to the blog entry of the day, as mentioned above, it is a two-for-one. First, the blog will explore the issue of whether obesity is a disability. We will explore a very interesting case from the State of Washington. Second, what happens if you have a legislator with a disability who can’t get to the same starting line as a legislator without a disability due to another legislator refusing to accommodate him. What title of the ADA does that legislator turn to. As usual, the blog entry is divided into categories and they are: background with respect to whether obesity is a disability; Taylor facts; Washington Supreme Court’s reasoning that obesity is always a disability under Washington law; Taylor takeaways; what’s going on in Wisconsin? Introduction; and let’s break this down. Of course, the reader is free to focus on any or all of the categories.

Background with Respect to Whether Obesity Is a Disability

In Taylor v. Burlington Northern Rail Holdings, Inc., The Washington Supreme Court received a certification request from the Ninth Circuit with respect to whether under Washington law obesity was a disability. People who follow the ADA know whether obesity is a disability under the ADA is complicated. The courts aren’t unanimous on it. However, the majority view in a big way is for obesity to be a disability under the ADA, there must be an underlying physical or mental impairment. Absent an underlying physical or mental impairment, a person with obesity is not a person with a disability under the ADA. This case raises a very important point that States often have their own antidiscrimination laws. Those laws may look at things very differently from the ADA.

Taylor Facts

In 2007, Taylor received a conditional offer of employment as an electronic technician from the defendant. The offer was contingent on a physical exam and a medical history questionnaire. The physical exam found that Taylor met the minimum physical demands of the essential functions of an electronic technician. However, the medical exam found that Taylor’s height was 5’6” and weighed 256 pounds resulting in a BMI of 41.3. Since a BMI over 40 is considered severely or morbidly obese, the defendant treated that as a trigger for further screening in the employment process. As a result, his results were referred to defendant’s chief medical officer who told Taylor that they were unable to determine whether he was medically qualified for the job due to significant health and safety risks associated with extreme obesity and uncertain status of knees and back. The defendant offered to reconsider if Taylor paid for expensive medical testing, including a sleep study, bloodwork, and an exercise tolerance test. The defendant also told Taylor that it was company policy to not hire anyone having a BMI over 35 and that if he could not afford the testing, his only option was to lose 10% of his weight and keep it off for six months. Taylor could not afford the testing because he was unemployed and did not have medical insurance or VA benefits. So, he filed suit in Washington State court and the suit was removed to federal court. At the federal court level, the judge relied on the majority rule with respect to obesity and found that Taylor was not a person with a disability under the ADA because he could not show that the obesity was caused by a physiological condition or disorder or that the defendant perceived the plaintiff’s obesity as having such a cause. On appeal to the Ninth Circuit, the Ninth Circuit stated that whether obesity was a disability under Washington State law was unresolved and certified the question to the Washington Supreme Court. The Washington Supreme Court accepted that certification.

III

Washington Supreme Court’s Reasoning That Obesity Is Always a Disability under Washington Law

Washington law makes it an unfair practice for an employer to refuse to hire any person because of the presence of any sensory, mental, or physical disability unless based upon a bona fide occupational qualification.
Washington law defines a disability as a sensory, mental, or physical impairment that: 1) is medically cognizable or diagnosable; or 2) exists as a record or history; or 3) is perceived to exist whether or not it exists in fact.
Under Washington law, a disability can be temporary or permanent, common or uncommon, mitigated or unmitigated and can exist regardless of whether it limits the ability to work generally or at a particular job, or limits any other activity.
What is an impairment under Washington law is either of the following: 1) any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organ, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine; or 2) any mental, developmental, traumatic, or psychological disorder, including but not limited to cognitive limitation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
The debate is over whether obesity is a physiological disorder or condition under Washington law.
The Washington Human Rights Commission has said that a person is considered disabled by a sensory, mental, or physical condition if he or she was discriminated against because of the condition and the condition is abnormal.
In a prior case, the Washington Supreme Court has said that an employee is disabled if they have a sensory, mental, or physical a abnormality and such abnormality has a substantially limiting effect upon the individual’s ability to perform his or her job.
In response to previous opinions of the Washington Supreme Court, the Washington legislature in amending Washington law expressly found that the Washington Law against Discrimination affords residents of Washington protections independent of those afforded by the ADA and that those protections existed for many years prior to the advent of the ADA. In making those changes the legislature chose to define disability very broadly including explaining that impairment includes but is not limited to any physiological disorder or condition affecting one or more body systems.
In a case such as this, all plaintiff need to show is the employer perceived the employee as having an impairment.
The medical community recognizes obesity as a primary disease. The medical evidence shows that obesity is always an impairment because it is a physiological disorder or condition affecting one or more body systems.
Obesity qualifies as an impairment that is physiological because it involves the organic process and phenomena of an organism-the excessive accumulation of fat cells.
The medical community recognizes obesity as a disorder.
Just because obesity is often diagnosed by measuring weight doesn’t mean that it is not a physiological disorder affecting body systems.
Overwhelming consensus in the medical community is that obesity is a disease in and of itself.
Obesity satisfies the AMA criteria for labeling something a disease. That recognition of obesity as a disease is supportive of the conclusion obesity is a physiological disorder under the Washington statute.
While the Washington statute does not define disorder, Webster’s does. A disorder under Webster’s is a derangement of function and an abnormal physical or mental condition. A disease fits within that definition.
While the Washington legislature did not provide a definition of “condition,” the Washington Human Rights Commission did. According to Washington Human Rights Commission a condition is a sensory, mental, or physical disability if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question. The Human Rights Commission definition of “condition,” has to be given great weight since the Human Rights Commission is responsible for administering the Washington law against discrimination. The Washington Court of Appeals has previously adopted the Human Rights Commission view of what a condition is.
While the Human Rights Commission doesn’t define the word abnormal, the medical evidence shows obesity is an abnormal condition. The AMA has stated that obesity is a disease involving abnormal energy balance and abnormal endothelial function resulting in metabolic abnormalities even after weight loss.
The medical evidence also shows that obesity itself affects one or more body systems including neurological, musculoskeletal, special sense organ, respiratory, including speech organ, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine. In particular, Amicus brief described in detail just how obesity itself affects the cardiovascular or circular system, the musculoskeletal system, the lymphatic system, and the endocrine system.
The court had trouble understanding how finding obesity is a disability would produce more psychological harm than is already caused by companies freely and openly refusing to hire people because of their obesity. Obesity after all leads to social, economic, and psychological problems as a result of prejudice, discrimination, poor body image, and low self-esteem. Oftentimes, obese people are underemployed or unemployed.
Washington Law against Discrimination must view the definition of impairment broadly in order to effectuate the purposes of that law.
Washington Law against Discrimination is broader than the ADA and offers its own independent protection to Washingtonians.

Taylor Takeaways

When it comes to disability discrimination, the ADA isn’t the end-all and be-all, though it is in Georgia. It is not unusual for States to have their own antidiscrimination laws when it comes to people with disabilities. Those laws may extend coverage to employers of less than 15 or more. Those laws also may define disability very very differently. Finally, those laws may have different remedies associated with them. Accordingly, the ADA is only one thing to look at. You have to look at state law as well.
Washington Law Against Discrimination defines disability very differently from the ADA. While impairment under Washington law, judging from the case, appears to resemble the ADA, the other part of the definition of a disability is quite a bit different as it talks about whether the mental or physical impairment or sensory impairment is medically cognizable or diagnosable. That makes things considerably broader than the ADA in its scope of coverage.
Did I mention that I am not an attorney licensed in Washington. When it comes to state antidiscrimination laws affecting people with disabilities, always be sure to find an attorney who can interpret that state law for you. Generally, that means an attorney licensed in the applicable State.
Will you now see a movement by the legislators in Washington to change the definition of disability under the Washington Law against Discrimination to something more similar to the ADA. As mentioned above, “impairment,” in Washington law is quite similar to the ADA. It is the disability part that is considerably different. I don’t know what the answer to this question is, but it wouldn’t surprise me if you see an effort to amend the Washington Law against Discrimination to match the ADA.
Two problems with this case are that the Washington Supreme Court doesn’t really define what obesity is. It just assumes obesity is a BMI over 40. Also, the Washington Supreme Court says that obesity is always a disability and that it never depends. The decision that obesity is always a disability and never depends is what drove Justice Yu to dissent. His view is that obesity should not be a per se rule but should be based upon an individualized inquiry as such an approach fits better with how disability discrimination statutes, such as the ADA, generally work.
Those who are followers of Chevron deference matters, can see that the Washington Supreme Court essentially adopted that approach with respect to how the Human Rights Commission defined various terms. Note, that the Human Rights Commission had specific authority from the legislature to implement the Washington Law Against Discrimination.

What’s going on in Wisconsin?: Introduction

In Wisconsin, there is a legislator who uses a wheelchair. The story can be found here. Basically, the legislator is a Democrat who uses a wheelchair and a personal attendant is necessary many times. There are time because of his health and the lack of an ability to find a personal attendant that it makes sense for him to be able to dial in or use videoconferencing to attend some of his obligations. The chair is a Republican and is refusing to allow that accommodation and insists upon the legislator being personally there. I have seen the article pop up in several different places on the Internet. What is interesting, is that the article never seem to take into account title II of the ADA. Some of the articles that I have read said that if the legislator was an employee, then title I applies, but since he is a legislator all bets are off.

Let’s Break This down.

One of the things I have consistently seen over the years, is ADA knowledge is quite high among attorneys practicing in title I of the ADA. On the plaintiff side, you will find attorneys who litigate on behalf of plaintiffs with respect to employment discrimination claims involving persons with disability. The defense bar responding to those lawsuits is generally quite knowledgeable and not afraid to retain people, such as myself, who are knowledgeable if requisite knowledge is lacking. The defense bar also gets involved in counseling employers on disability discrimination matters. However, once you move into title II and title III of the ADA, the knowledge base among attorneys goes way down. What is wild about this situation is that title I and title II are involved at the same time. It is rare you see that. In fact, I have only seen it once; many years ago, when I consulted on such a case.

With respect to title I, assuredly the Democratic legislator is being paid for his efforts. Who is the entity paying him? It is probably the State of Wisconsin. Surely, the State of Wisconsin or whatever entity is paying him has more than 15 employees. So, the entity that is paying him has independent ADA obligations to ensure that one of their employees receives reasonable accommodations for his or her disability. As we have mentioned too many times to count, under title I of the ADA, accommodations must be made unless an undue hardship is involved. Undue hardship can either be financial or logistical. As we have also mentioned previously, financial hardship is very difficult to show as you look to the overall governmental resources and not to the budget item. For undue hardship in the logistical sense, readers of the blog know to think in terms of fundamental alteration. I don’t see how either applies to the case of the Democratic lawmaker seeking the ability to dial in or to videoconference. Of course, you have the question of whether the Democratic legislator is a qualified person with a disability. I don’t see how that is an issue here. Clearly, the Democratic lawmaker has a disability. By virtue of being elected, he has the requisite skill, experience, etc. to be a legislator. The question then becomes can he do the job with or without reasonable accommodations. He has recommended accommodations and has been turned down. So, whoever is employing the Democratic legislator has a problem on their hands with respect to the actions of the Republican chair. At a minimum, an interactive process should ensue to see if everyone can get to a win-win. Of course, I’m assuming that legislators and Wisconsin are employees in the first place and not independent contractors. If by some chance legislators in Wisconsin are actually independent contractors, I don’t see how that is possible but even so…, Then the Democratic legislator would still have claims under title II of the ADA and §504.

It doesn’t end there. With respect to title II, there may be a claim there as well. After all, a public entity is involved. We are also talking about accessing the programs, services, and activities of a public entity, i.e. legislative proceedings. Under title II of the ADA, reasonable accommodations have to be made unless you are dealing with an undue hardship or a fundamental alteration. As we have discussed previously many times, undue hardship and undue burden mean the same thing. Fundamental alteration is essentially logistical undue hardship. For the reasons mentioned above, I don’t see how either undue burden or fundamental alteration work as a defense in this situation. Again, you have the question of whether the Democratic legislator is a qualified person with a disability. Whether a person is a qualified person with a disability under title II of the ADA has a different definition than in title I of the ADA. Again, the Democratic legislator gets by this hurdle rather easily. He is, as mentioned above, a person with a disability. As for being qualified, he also meets the essential eligibility requirements of the program, activity, or services as well, i.e. he is qualified to be a state legislator and to participate in all legislative proceedings with or without reasonable accommodations. So, bottom line, the Democratic legislator has both a title I claim and a title II claim against the entity paying both him and the chair. With respect to title I, it is entirely possible that the S grin tate of Wisconsin may be able to claim sovereign immunity per Board of Trustees of the University of Alabama v. Garrett. However, the state of Wisconsin is going to have a much harder time claiming sovereign immunity with respect to our Democratic legislator’s title II claim as we are talking about legislative activities. See this blog entry. Also, since federal funds are undoubtedly involved as well, our Democratic legislator probably has a §504 claim as well. In many jurisdictions, receipt of federal funds waves sovereign immunity under §504.

In short, the chair and the entity paying the chair and the Democratic legislator need to get together to engage in the interactive process so that the Democratic legislator can do his job with or without reasonable accommodations. Failure to do that could very well lead to title I, title II, and §504 claims. In addition, such a lawsuit would be horrible publicity. Finally, from the little facts we do know, such a lawsuit would have a high probability of success thereby forcing the state of Wisconsin to pay attorney fees for themselves as well as for the Democratic legislator. Finally, if the Democratic legislator were to be retaliated against for bringing the lawsuit, that would result in additional claims. The retaliation claims would then relate back to both title I and to title II as well as to §504. In that situation, whether damages would be allowed in the ADA claims, would depend upon the particular title of the ADA involved. That is, no damages for retaliation under title I per this blog entry, but damages upon a showing of the deliberate indifference (see this blog entry for discussion of deliberate indifference), for violating title II.

Interaction Between FMLA and ADA: A Whole Lot Going on

March 20, 2018 by William Goren Leave a Comment

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.

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.

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

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.
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.
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.
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.
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.
Nothing in the C.F.R. puts a timeframe on the required fitness for duty form.
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.
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.
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

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.
What is a reasonable accommodation is typically a jury question.
Just what were the essential duties of plaintiff’s job were not clear-cut.
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.
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.
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.
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.

Takeaways:

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.
Make sure your essential duties of the job are current, accurate, and reflect what is actually happening on the ground.
If a reasonable accommodation is working, why mess with it?
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.
What is a reasonable accommodation is typically a question for the jury.
As we have discussed before, whoever breaks down the interactive process bears the liability.
Figuring out who broke down the interactive process is a question for the jury, at least in close calls.
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.”
Whether a job can be performed with or without reasonable accommodations is a question of fact.
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.
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.
For another FMLA ADA interaction problem, check out this blog entry, which discusses forcing FMLA leave instead of engaging in the interactive process.
Don’t forget about reassignment as a reasonable accommodation.

With or without reasonable accommodations

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