Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

Section 503 of the Rehabilitation Act of 1973, as amended ("Section 503"), prohibits employment discrimination by federal government contractor and subcontractor employers against individuals with disabilities. It also includes affirmative action provisions that relate to both hiring and advancement of disabled individuals by those same employers. The provisions of Section 503 apply to government contractors with contracts/subcontracts of over $10,000 for the purchase, sale, or use of personal property or non-personal services, specifically including construction services. Contractors/subcontractors that have a contract/subcontract of at least $50,000 and at least 50 employees are required to prepare and maintain an Affirmative Action Program (AAP) to document efforts to comply with Section 503.

http://www.regulations.gov, or in writing to Debra Carr, Room C-3325, 200 Constitution Avenue NW, Washington, D.C. 20210. The reference number, which should be included with comments, is (RIN) 1250-AA02.

The proposed Section 503 regulations expand both the scope of recruitment and hiring of disabled individuals, and data collection/reporting requirements for contractors. One of the most critical provisions, however, is one requiring contractors to provide training to personnel involved in recruitment, hiring, promotion, and disciplining. That training should include the contractor’s affirmative obligations under the regs and should outline the benefits of employing individuals with disabilities, as well as informing such personnel of the contractor’s legal obligations in this area. Comprehensive, objective training in this area can help to alleviate some of the burden that the new regulations are perceived to impose.

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On December 2, 2011, the EEOC posted an “informal discussion letter” on its website. The letter was in response to an issue involving individuals who are unable to earn a high school diploma because of certain learning disabilities and who therefore are ineligible for jobs that require a high school education. According to the EEOC, a qualification standard - including a high school diploma requirement - that screens out individuals on the basis of a disability must be job related and consistent with business necessity, or such standard may violate the Americans with Disabilities Act.

A qualification standard is “job related and consistent with business necessity” if it accurately measures an applicant’s ability to perform the fundamental responsibilities of the job in question. However, that measurement is simply the first of two steps. Once it is determined that the qualification standard being used to screen out applicants is job related and consistent with business necessity, the employer also must show that an individual who does not meet that standard is unable to perform the essential functions of the job, even with an accommodation.

That means that, for instance, if an employer requires a high school diploma as a baseline for hiring, and that baseline screens out an individual with a learning disability, the employer must fulfill both steps of the process in order to comply with the ADA. Specifically, it first must demonstrate that a high school education is a job related requirement for the particular job, and that the essential functions of the job cannot be effectively performed by someone without a high school diploma. It must then go one step further, and determine whether the individual applicant whose learning disability kept him or her from obtaining a diploma can perform the essential functions of the job, with or without a reasonable accommodation. If that particular applicant is able to perform the essential functions of the job, despite the inability to meet the qualification (high school diploma), the employer cannot use the lack of diploma to screen out the disabled applicant from the applicant pool.

While this rationale was set forth in an “informal” letter from the EEOC to an employer and does not have the force of law or regulation, it is worthy of notice. While an employer is not required to “prefer” a learning disabled applicant over other applicants with more extensive qualifications, it is clear that the EEOC is informing employers that disabled individuals cannot be excluded from consideration for employment based upon artificial barriers in the form of inflexible qualification standards.
 

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A medical resident with Asperger’s Disorder was unable to meet his burden, in his ADA lawsuit against his hospital employer, that he was “otherwise qualified” for his position. The 6th U.S. Circuit Court of Appeals upheld summary judgment in favor of the hospital, because the resident’s requested accommodation - that the hospital physician and staff be educated on the symptoms and triggers of Asperger’s - did not address the key obstacle preventing him from performing a necessary function of his job, or resolve his inability to fulfill his responsibilities as a hospital resident.  Jakubowski v. Christ Hosp. Inc., 6th Cir., No. 09-4097, December 8, 2010.

Martin Jakubowksi graduated from the University of Medical Sciences in Poznan, Poland in 2003. In July 2005, he began a medical residency at St. Elizabeth Hospital in Youngstown, Ohio. In October, he was placed in a remediation program to improve performance weaknesses, but his contract at that hospital ultimately was not renewed. He then enrolled at the New York Medical College for a year-long supervised clinical training. He received mixed reviews there, with the negative comments focused largely on his lack of communication skills.

In July 2007, Jakubowski found a second residency, this time at Christ Hospital in Cincinnati. During the first month of that residency, he received mixed reviews. While his “medical knowledge” scores were high, he scored poorly on an emotional intelligence exam, and was evaluated as deficient in self-awareness, social competence, and relationship management. One attending physician observed that Jakubowski had poor organizational skills, skipped standard procedures in his examinations, and performed procedures incorrectly. While Jakubowski never caused actual harm to any patient during his residency, his supervising physicians noted his inability to communicate effectively with nurses, and certain unclear orders made by Jakubowski for medication and treatment of patients.

On August 25, 2007, Jakubowski was formally diagnosed with Asperger’s. On that same day, but before formal notification to the hospital of that diagnosis, the director of the residency program (Dr. Diller) informed Jakubowski that he would be terminated from his residency on September 30, 2007. On September 11, Jakubowski’s attorney sent a letter to the hospital proposing that the hospital accommodate the diagnosed Asperger’s by increasing the “knowledge and understanding” of the physicians and nurses working with Jakubowski. The hospital responded that it did not have sufficient resources to comply with the proposal by Jakubowski, but offered to help him in finding a residency in pathology, a field that required little or no patient interaction.

Jakubowski sued the hospital, alleging that he had been let go because of his Asperger’s Disorder, and claiming that the hospital failed to accommodate that disability. The lower court granted summary judgment in favor of the hospital, and that decision was upheld by the Sixth Circuit on appeal. In its analysis, the Sixth Circuit pointed out that effective communication with colleagues and patients was an essential function of a resident’s job. Whether or not Jakubowski was a “qualified” resident in spite of his Asperger’s depended on whether his proposed accommodation would improve his communication and interactions with others. Because the proposal to increase the “knowledge and understanding” of his co-workers about Asperger’s did not directly improve Jakubowski’s ability to communicate effectively, because the proposed accommodation was involved an indefinitely period of time and indefinite frequency, and because Jakubowski’s inability to communicate could have an adverse effect on patient safety, the Sixth Circuit upheld the lower court’s dismissal of the case.

While the ADA prevents an employer from discriminatorily terminating an otherwise qualified individual on the basis of a disability, Jakubowski was unable to prove that he was “otherwise qualified” to successfully complete his residency, because his proposed accommodation did not directly improve his ability to communicate with co-workers and patients. According to the Sixth Circuit, a plaintiff has the burden of proving that he will be “capable of performing the essential functions of the job with the proposed accommodation,” and Jakubowski was unable to do that. Therefore, he could not proceed with his ADA claims.

This holding does not excuse employers from participating in the interactive process by engaging in a reasonable discussion of accommodations proposed by a disabled employee. It does, however, indicate that unless an impaired individual can describe and request an accommodation that allows him or her to undertake the essential functions of the job, that individual cannot support a lawsuit under the ADA.

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The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities, or being “regarded” as having such impairment. In order to support a “regarded as” claim under the ADA, an individual has to show that the perceived impairment limited a major life activity and that the limitation was “substantial.” The 5th U.S. Circuit Court of Appeals recently held that a nurse’s claim that her employer viewed her as unable to perform job duties as a treatment nurse was insufficient to show that the employer viewed her as generally unable to perform as a nurse. Winborne v. Sunshine Health Care, Inc., 5th Cir., No. 09-60755, November 17, 2010.

In 1992, Barbara Winborne began working as a licensed practical nurse (LPN) at Sunshine Rest Home. A year later, Winborne was diagnosed as suffering from transient ischemic attacks (TIAs). When she experienced a TIA, Winborne had difficulty concentrating, often experiencing dizziness, temporary loss of awareness, and severe headaches. In order to control the attacks, Winborne took mediation, and had no problems performing her job duties. In 2005, she informed the Director of Nursing for Sunshine Health Care(SHC) that she suffered from the TIAs.

On July 8, 2005, during her rounds through the facility, Winborne checked on an elderly dementia patient, who required restraints because she was prone to agitation. Thirty minutes later, when Winborne returned to the room, she found the patient hanging out of the bed with the bed rails lowered, and held only by her pelvic restraints. The patient was rushed to the hospital and later was returned to the facility.

The incident was reported to the Mississippi Department of Health (MDOH), as required by law, and an investigation was done, during which Winborne was suspended from her employment. Based upon its investigation, the MDOH found “abuse and neglect” of the patient. SHC discharged Winborne, based on its policy that requires termination of an employee found guilty of patient neglect. Winborne sued SHC, alleging that she was fired in violation of the ADA, and because SHC regarded her as disabled. A jury awarded her $10,000 and over $25,000 in attorney fees and costs. On appeal, the Fifth Circuit reversed and entered judgment in favor of SHC.

In order to show that SHC regarded her as substantially limited in the major life activity of working, Winborne had to prove that SHC believed her to be significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. Importantly, the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. Winborne therefore had the burden to show that her perceived impairment extended beyond her one particular job to a class of jobs or to a broad range of jobs in various classes.

The factors that a court may consider in determining whether a person is substantially limited in the major life activity of working include the job from which the individuals has been disqualified because of an impairment (or perceived impairment), and the number and types of other jobs utilizing similar training, knowledge, skills or abilities within the geographic area to which the individual has reasonable access. In this case, Winborne offered no evidence to show that her condition disqualified her from other nursing positions or from a broad range of healthcare-related positions that did not involve patient care. She also failed to present any evidence about the numbers and types of available (or unavailable) jobs utilizing similar training within the relevant geographic area, and did not ask a single question at trial about whether SHC would have hired her in an administrative role.

Because Winborne failed to present any evidence to prove that SHC regarded her as unable to perform a class of job, or a broad range of jobs in various classes, the Fifth Circuit concluded that the trial evidence was insufficient as a matter of law to support the jury’s verdict, and revered the verdict. This holding is important to employers, who should recognize that in order to successfully defend against ADA claims, it is helpful for the employer to be able to show the availability of jobs (within a relevant geographic area) which are consistent with the plaintiff’s skills, qualifications, and abilities. While the burden of proof is on the plaintiff in a discrimination case, information of that type can help to explain to a jury that there is no perception of “disability,” because there is no perception that the plaintiff was substantially limited in the ability to work.
 

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The ADA Amendments Act of 2008 (ADAAA) clarified the ADA in a number of ways. In one significant clarification, the ADAAA provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Based upon that wording, a federal district court in the Northern District of Indiana has held that an employee with cancer is considered to be disabled under the Act, even if his condition is in remission at the time of he alleged adverse action taken against help by his employer. Hoffman v. Carefirst of Fort Wayne Inc., N.D.Ind., No. 1:09-cv-00251, 8/31/10.

Stephen Hoffman worked as a service technician in 2007 when he was diagnosed with Stage III Renal Carcinoma, and underwent surgery to remove his left kidney. Hoffman took time off work for surgery and recovery, and returned to his job on January 2, 2008, without restrictions or limitations. As a service technician, Hoffman delivered home medical devices, such as wheelchairs and oxygen tanks to patients. Although his job description with Carefirst required him to be “available after hours and on call,” his typical schedule was 9 a.m. to 5 p.m. on weekdays. Hoffman worked his regular schedule from January 2008 through January 2009, and did not miss significant time from work, other than for regular doctor visits.

On January 26, 2009, Hoffman met with his supervisor, David Long, who told Hoffman that the company had acquired a contract with a hospital system that would require service technicians, including Hoffman, to work substantial amounts of overtime each week, to do a night shift once and week, and to be on call on weekends. Hoffman expressed concern that the required schedule would “put me in the grave.” Hoffman then obtained a note from his doctor that limited him to “8 hours/day, 5 days/week.”

Although Long initially told Hoffman that Hoffman would be fired, he then retracted that statement and said that he company would allow Hoffman to work a 40 hour a week schedule out of its Fort Wayne office. Hoffman objected to that, based on the two hours of additional commuting time that the new location would add to his workday. He told Long that “you have already fired me,” and asked Long to communicate directly with his (Hoffman’s) attorney.

Hoffman then sued Carefirst under the ADAAA, alleging that his renal cancer – which admittedly was in remission at the time of his firing – was a disability. Not surprisingly, Carefirst argues that Hoffman was not disabled, based on the facts that Hoffman had returned to work without restrictions, had worked a full schedule for a year, and did not miss significant time from work during that period. Because the ADAAA went into effect on January 1, 2009, there is little case law under those amendments. However, based upon the clear wording of the Act (that disability includes impairments “in remission” if the impairment would be a substantial limitation when active), the court held that Hoffman did not need to show that he was substantially limited in a major life activity at the actual time of his termination, because his cancer would have substantially limited him, had it been active. It therefore found him to be “disabled” for purposes of the ADAAA, and denied Carefirst’s motion for summary judgment.

One other aspect of this case should be noted by employers: there was no evidence that Carefirst carefully reviewed and discussed possible accommodations with Hoffman before telling him that his only option was working out of another office. Had Carefirst provided evidence that any other accommodation would have created an “undue hardship” for the company, the lower court may have decided that although Hoffman was disabled, Carefirst had offered an appropriate accommodation that was refused by Hoffman.

While it remains to be seen whether this decision is upheld on appeal, the case provides to employers an insight that courts are likely to interpret this particular provision of the new amendments very literally. An impairment from which an individual has recovered, but which may reoccur is likely to be viewed as a disability under the ADAAA.
 

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Earlier this year, and in a case of first impression, the 3d U.S. Circuit Court of Appeals upheld an employee’s claim that her employer violated the ADA by refusing to change her work shift after she reported commuting difficulties based upon a visual impairment that made it difficult for her to drive at night. Now, in an unpublished opinion, the 9th U.S. Circuit Court of Appeals has issued a similar decision. In that case, the Court reversed a decision in favor of an employer, allowing an individual’s claim to go to trial on the issue of whether the company failed to accommodate the employee’s visual impairment when it refused to modify her work schedule to daylight only hours. Livingston v. Fred Meyer Stores, Inc., 9th Circ., 08-35597, July 21, 2010.

Michelle Livingston began working for Fred Meyer Stores (Meyer) as a wine steward in April 2005. Livingston has been diagnosed with “depth perception difficulties under low light conditions,” which makes it difficult for her to safely drive or walk outside after dark. In the Fall of 2005, Livingston asked for, and was granted, a modified schedule to allow her to leave work during daylight hours. During that time, Livingston helped increase the store’s wine sales and improve its sales ranking. However, when she again asked for the modified schedule in the Fall of 2006, Meyer refused the request, and ultimately fired Livingston when she refused to work her scheduled shift.

Livingston sued the company, alleging that it failed to accommodate her and then retaliated against her, both in violation of the Americans with Disabilities Act. The district court granted summary judgment in favor of the employer, holding that Livingston did not have a disability because her vision impairment did not substantially limit a major life activity, and that even if Livingston was disabled, a company’s duty to accommodate did not extend to “commute-related limitations.” The Ninth Circuit disagreed, reversing and remanding the case for trial.

A person is substantially limited in a major life activity if she is “significantly restricted” as to the condition, manner or duration under which she can perform that activity, when compared to the average person. Livingston’s impairment prevents her from safely driving or walking at night, when the average person is able to see well enough to do both. The Court held that on that basis, Livingston raised a triable issue of fact regarding whether she is disabled under the ADA in the major life activity of “seeing.”

The Court then specifically addressed the lower court’s finding that the duty to accommodate does not extend to commute-related limitations. It pointed out that the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate an employee’s disability-related difficulties in commuting to work and that, therefore, Meyer had a duty to accommodate Livingston’s inability to finish her scheduled shift, so long as such accommodation did not create an undue hardship for the company. Because Meyer had not suffered a hardship when it modified Livingston’s schedule in 2005 – indeed, wine sales increased with Livingston’s help during that period – Livingston is entitled to allow a jury to decide whether Meyer’s failure to accommodate her request in 2006 was a violation of the ADA.

The Court further determined that Livingston’s failure to work her scheduled shift stemmed from her disability, and that conduct “resulting from a disability” is considered to be part of the disability, rather than a separate basis for termination. Therefore, the Court held, Livingston’s claim that she was terminated “because of her disability” should be decided by a jury.

In this case, there was no evidence that Meyer asked for any additional information or engaged in any dialogue with Livingston before refusing her request in 2006, and then terminating her employment. The absence of such evidence created the basis for the Ninth Circuit’s reversal of the district court’s decision in Meyer’s favor. Employers are required to engage in an interactive process in good faith when an employee asks for an accommodation of a disability. That failure can result in liability under the ADA if such reasonable accommodation is possible and appropriate.
 

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In an unusual case of first impression, the 3d U.S. Circuit Court of Appeals has held that under certain circumstances, the ADA may obligate an employer to accommodate an employee’s disability-related difficulties in getting to work. In that case, the Court reversed summary judgment in favor of an employer and held that changing a part-time employee’s schedule to day shift – because her monocular vision made it dangerous for her to drive at night – could be a reasonable accommodation under the ADA. Colwell v. Rite Aid Corporation, 3d Circ., No. 08-4675, April 8, 2010.

In April 2005, Jeanette Colwell began employment as a part-time retail clerk at a Rite Aid store in Old Forge, Pennsylvania, generally working weekdays from 5:00 to 9:00 p.m. A few months after she began working there, Colwell was diagnosed with “retinal vein occlusion and glaucoma,” which eventually left her blind in one eye. In September 2005, Colwell informed her supervisor that the partial blindness made the drive to work at night dangerous and difficult for her, and asked to be switched to day (9:00 a.m. to 2:00 p.m.) shift so that she could drive to work safely. Public transportation was not an option, because the buses stopped running at 6:00 p.m. in that area. Colwell was told her shift would not be changed because it “wouldn’t be fair” to the other employees. At that point, Colwell began to rely on relatives to drive her to work, even though she said it was a “hardship” for her family to do it.

On October 12, 2005, after a number of unsuccessful attempts to have her shift changed to permanent day shift, Colwell wrote a letter of resignation to Rite Aid that stated that she felt that she had “not been given fair treatment.” Rite Aid never responded to Colwell’s note. A few months after leaving her position with Rite Aid, Colwell filed a lawsuit that included a claim that the company had failed to accommodate her disability by refusing to move her to the day shift.

The district court granted summary judgment to Rite Aid on Colwell’s failure-to-accommodate claim, on the basis that Colwell “did not need an accommodation to perform her job once she arrived at work.” The lower court found that the accommodation requested by Colwell “had nothing to do with the work environment or the manner and circumstances under which she performed her work,” and that the ADA only covers barriers “that exist inside the workplace.”

The Third Circuit reversed that decision, disagreeing with Rite Aid’s position that Colwell’s difficulties amounted to a “commuting problem unrelated to the workplace.” Instead, the Court found that the reach of the ADA is not limited in that way, and that changing Colwell’s work schedule to day shift was, in fact, the type of accommodation contemplated by the ADA. The Court pointed to language within the ADA in which the term “reasonable accommodation” is defined to specifically include “modified work schedules,” and that what Colwell was requesting was, in essence, a schedule change. The Court held that “under certain circumstances the ADA can obligate an employer to accommodate an employee’s disability-related difficulties in getting to work, if reasonable.” Because Colwell’s requested accommodation was a change in workplace condition that was entirely within the company’s control, and would have allowed Colwell to get to work to perform her job, the Court found that the shift change could be viewed as a reasonable accommodation.

Although in this case, the Court held that the ADA contemplates that an employer may need to modify an employee’s work schedule to accommodate that individual’s disability-related difficulties in getting to work, the employer is not precluded from asserting a defense that the re-scheduling may create an “undue hardship” or financial burden if, in fact, it does. This case underscores the need for a full evaluation of an individual’s particular medical impairment to determine what aspects of employment are affected, the benefit of participating in the interactive process required under the ADA, and the need to review the employee’s request for accommodation in the broadest context possible to determine whether or not the request will assist the employee in the performance of his or her job. Because this decision seems to expand employers’ obligations with respect to “reasonable accommodation,” it is worth following to see whether other courts of appeal rule consistently with the case.
 

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A medical intern who misdiagnosed patients (including mistakenly identifying a patient as deceased), prescribed inappropriate medications or incorrect dosages, and who was “extremely argumentative” with his supervisors and co-workers was unable to perform the essential functions of his job and therefore, according to the 4th U.S. Circuit Court of Appeals, was not a qualified individual with a disability for purposes of the Americans with Disabilities Act. Shin v. Univ. of Maryland Medical System Corporation, 4th Circ., No. 09-1126, March 11, 2010.

Frank Shin, M.D., began a medical internship with the University of Maryland Medical System Corporation (UMMSC) in June of 2006. He initially performed his duties in a satisfactory manner, scoring 8 out of 10 for overall competence. However, after the first month, Dr. Shin’s scores began to fall, and by August, his overall rating was 3 out of 10. Further, at that point, Shin had to be “shadowed heavily” by resident doctors, in order to prevent medical errors. Shin’s workload subsequently was decreased to three patients, but support of other residents was still necessary.

Shin’s falling performance ratings prompted a face-to-face meeting with his supervisor to address the issues. At that meeting, an action plan was developed, further reducing Shin’s patient load to two, and requiring him to interact frequently with others who supported him. When after two weeks, Shin’s performance deteriorated further, he was urged to contact the Employee Assistance Program. On September 1, 2006, Shin was put on probation, and was required to meet certain criteria to remain in the internship program. Shin’s overall competence scores failed to improve during probation, with one of his supervising doctors noting that Shin was “should no longer be allowed to continue in a direct patient care role.”

UMMSC made assistance available to Shin by allowing him to see fewer patients with less complex medical issues, by asking residents to help with Shin’s workload, and by excusing Shin from participating in certain internship program requirements. Despite this assistance, Shin continued to have problems and ultimately was diagnosed with ADD with “significant impairment in visual-spatial reasoning and visual memory.” Although Shin sought expert help, in March 2007, his own doctor determined that Shin had reached maximum medical improvement, but was unfit to return to work as an intern. UMMSC then terminated Shin’s employment. That termination was upheld after an internal appeal procedure held in June 2007.

Dr. Shin ultimately filed a lawsuit against UMMSC and Dr. Wolfsthal under the ADA, alleging discriminatory discharge, and failure to provide a reasonable accommodation. The district court granted summary judgment in favor of the defendants. That decision was upheld by the Fourth Circuit. (Note that the Fourth Circuit reviewed the case under the “old” ADA, because the ADA Amendments Act, which took effect on January 1, 2009, was not applied retroactively.)

For both wrongful termination and failure to accommodate claims, a plaintiff must establish that he or she was a “qualified individual with a disability” in order to be eligible for the protections offered under the ADA. That Act defines a “qualified” individual as someone with a disability who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” Therefore, in order to survive a motion for summary judgment, Shin had to show not only that he was disabled, but that he qualified for the protections of the ADA.

To prove that he was qualified, Shin had to show that he was able to fulfil the essential functions of his job. Those essential functions, in essence, were “to provide competent medical care to patients with efficiency and reasonable autonomy.” The available evidence and testimony clearly indicated various problems and concerns related to Shin’s performance of those functions. The Court held that Shin was unable to perform the essential functions of his job and, therefore, that he was not qualified to bring a lawsuit under the ADA. The Court went a step further, and addressed Shin’s claim that he would have been “qualified” had UMMSC provided certain requested accommodation, including a permanent reduction in the number of patients for whom Shin was responsible. According to the Court, the ADA does not require an employer to assign an employee to “permanent light duty” or to reallocate job duties in order to change the essential functions of a job. On that basis, the Court held that no reasonable jury could conclude that a reduced work load was a reasonable accommodation under these facts.

According to the Fourth Circuit, Dr. Shin was not a qualified individual with a disability for purposes of the ADA - because he was not able to perform the essential function of his job - and his requested accommodations were unreasonable under the circumstances. Therefore, Shin was unable to support his claims under the ADA. With many hospital systems moving to an “employment” model for physicians, it is critically important that hospital administrators and managers understand the employment-law implications of actions involving individuals in protected categories, and understand that ADA claims typically must be reviewed on a case-by-case basis.
 

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Under the Americans with Disabilities Act and parallel state statutes, an employer cannot take an adverse action against an employee because of that person’s disability or perceived disability. However, an employer is justified in taking such action if the action is based upon a legitimate business reason, and if that reason is not simply a pretext for discrimination. A Tennessee district court has held that firing an employee because of fear of potential violence by that individual is a “legitimate non-discriminatory reason” for an employee’s termination, in spite of the fact that the employee had been diagnosed with bi-polar disorder. Calandriello v. Tennessee Processing Ctr., M.D. Tenn., No. 3:08-1099, Dec. 15, 2009.

Robert Calandriello sued his former employer, Tennessee Processing Center (TPC) for disability discrimination under the state’s anti-discrimination statute. The company filed a motion for summary judgment, which was granted by the district court. The court’s decision was premised on the third step of the shifting burden analysis, which requires an employee to disprove the company’s “legitimate business reason” for an adverse employment action.

Beginning in 2005, Calandriello worked at TPC’s Nashville location, which processed business data on which U.S. government stock and wire transfers were based. Because of the nature of the business conducted, TPC operated under certain security protections including FBI record checks for employees, a gated facility, and retinal scans for employee access.

In September 2007, TPC issued a “final warning” to Calandriello after learning that Calandriello had used company equipment to modify a company poster by adding a photo of Charles Manson. During the disciplinary process, Calandriello acknowledged that he made a poor choice in displaying the poster, but informed TPC (for the first time) that he suffered from bi-polar disorder which, he said caused that lapse in judgment. Calandriello also argued that because he had not destroyed company property, threatened anyone, or caused financial loss to the company, he should be exempt from disciplinary action, because he was entitled to “accommodation” under the ADA.

In spite of that, Calandriello was fired after further investigation showed that he had viewed online images of violence, assault weapons, and serial killers on his company computer. TPC’s action was based on a “loss of confidence” in Calandriello, and a concern that Calandriell’s continued employment posed a risk of workplace violence. Calandriello admitted to viewing sites about assault weapons and serial killers, but argued that guns were a “constant conversation topic” in the workplace at TPC.

Nonetheless, the court found in favor of TPC, holding that “fear of potential violence is a legitimate non-discriminatory reason for an adverse employment action,” including termination, and quoted a federal appellate court opinion that the ADA “does not require an employer to retain a potentially violent employee.” It further found that Calandriello was unable to provide evidence that the reason given by TPC for the termination was simply a pretext for discrimination. TPC was able to substantiate its position by citing a written company policy that specifically prohibited employees from visiting internet sites that are “known to contain or are suspected of containing objectionable matter” including “profane or otherwise inflammatory material.”

This case should not be viewed as a blank check for the discipline or termination of employees with bi-polar disorder. The deciding factors here included the high security workplace and the written company policies related to company computers. Further, the fact that the company was unaware of Calandriello’s impairment until after its initial disciplinary action supports its argument that the termination was based on “legitimate non-discriminatory” reasons. Employers should view issues related to medical and psychological impairments on a case-by-case basis to assure compliance with both state and federal laws.
 

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In an unpublished opinion, the 2d U.S. Circuit Court of Appeals has held that an employee who requested a leave of absence to consult an orthopedic surgeon was unable to prove that the absence would allow him to perform the essential functions of his position. Therefore, the absence was not a "reasonable accommodation" for purposes of the ADA. Graves v. Finch Pruyn & Co., 2d Cir., No. 09-1444, unpublished, 11/17/09.

George Graves worked as a paper inspector for Finch Pruyn & Company. Graves requested an unpaid leave of absence from his job to consult with a surgeon about a foot problem from which he suffered. When Graves subsequently was terminated from his employment, he sued the company for discrimination under the Americans with Disabilities Act. Finch's motion for summary judgment was granted by the district court, which held that the leave sought by Graves was not a reasonable accommodation and, therefore, that Graves was unable to set forth the required prima facie case. On appeal, that decision was upheld by the Second Circuit.

Under the ADA a "reasonable accommodation" is something that enables a disabled employee to perform the essential functions of his job. An employer typically is required to engage in an interactive process with a disabled employee and to work with him to implement a reasonable accommodation, unless such accommodation creates an undue hardship for the company. In Grave's case, there was no dispute that immediately prior to the request for leave, Graves could not perform the essential functions of his job, which required standing for long periods of time and lifting and pushing large rolls of paper. His request for a leave of absence was for the specific purpose of consulting with a surgeon. However, the request included no assurance that such consultation would then allow Graves to be able to perform the essential functions of his job. In fact, a report from one of Graves doctors indicated that it was "unlikely" that Graves could return to his previous occupation after the contemplated surgery. Further, the same doctor provided a report that ultimately allowed Graves to qualify for a disability retirement. Based on all of this, the Court concluded that the evidence did not provide assurance that Graves' would ever be able to perform the essential functions of his job, even with the request two-week leave of absence. Graves therefore could not support the element of his prima facia case that required him to show that he was able to do the essential functions of his job with an accommodation.

The Court made an additional, and notable, point: that an employee may not rely on a company's failure to engage in the interactive process if he cannot also show that a reasonable accommodation actually exists at the time of the complained-of adverse action. Employers should not interpret this holding to mean that they can ignore the obligation to interact with an employee regarding a requested accommodation. Instead, an employer should recognize that before rejecting an employee's request for job modification, full and considered evaluation of the proposed "accommodation" should be done in order to determine whether such request will enable the individual to return to his or her essential functions.

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Under the Americans with Disabilities Act, employers and employees are required to engage in an interactive process with respect to a disabled employee’s request for a reasonable accommodation. In cases of psychological disability - depression, for example - necessary accommodations may be non-obvious to the employer. In those cases, courts have held that in order to trigger an employer’s obligation to provide accommodation, a disabled employee must make the employer aware of any non-obvious, medically necessary accommodations by supplying corroborating evidence, such as a doctor’s note or statement. Recently, the 7th U.S. Circuit Court of Appeals reversed a lower court’s dismissal of a case, and found that a school failed to engage in the required interactive process after a teacher provided a doctor’s statement that linked the teacher’s Seasonal Affective Disorder depression to the lack of windows in her classroom. Ekstrand v. Sch. Dist. of Somerset, 7th Cir., No. 09-1853, Oct. 6, 2009.

Renae Ekstrand taught kindergarten from 2000 to 2005 at Somerset Elementary School in Wisconsin. In 2005, Ekstrand’s request to be transferred to teach first grade was granted; she was assigned to a classroom that lacked exterior windows. At that time, Ekstrand informed the principal that she suffered from Seasonal Affective Disorder (“SAD”), a form of depression, and would have difficulties teaching without access to natural light. While two alternate rooms were available, both with windows, no transfer to either of those rooms was made. During the initial weeks of the 2005 school year, Ekstrand’s health declined, and she continued to ask for a room with access to exterior windows, which was denied. However, during that same time, the school did address Ekstrand’s requests related to other work area issues, including inadequate ventilation and the lack of various educational necessities, like bulletin boards and a locking cabinet. Ekstrand’s health problems worsened, and on October 17, her doctor placed her on medication and advised a leave of absence for the remainder of the term.

During the following months, Ekstrand continued to ask for the room change, advising the school that she would be able to return under that condition. On November 28, 2005, Ekstrand’s psychologist notified the school district, through its representative, of the importance of natural light for individuals with a history of SAD, and opined that Ekstrand’s depression was a direct result of her transfer to a room lacking access to natural light. Still, the school district did not make the requested room change, and Ekstrand ultimately left her employment at Somerset and began teaching elsewhere.

In 2008, Ekstrand sued the school district, alleging failure to accommodate, as well as constructive discharge. A federal district court granted the school district’s motion for summary judgment on both claims, holding that the school engaged in the interactive process when it addressed Ekstrand’s other work-related issues, and that the school’s conduct did not amount to a constructive discharge. On appeal, the 7th Circuit upheld dismissal of the discharge claim, but reversed the ADA dismissal. The reversal was based primarily on the fact that once it was aware of natural light’s medical necessity to Ekstrand (after being informed by Ekstrand herself that she was willing and able to return to work in a classroom with access to such light), the school district was obligated to provide that requested accommodation, unless it could show that the request would impose an “undue hardship” for the school. After reviewing the proffered evidence related to the proposed classroom change, the Court determined that there would be “little hardship” related to the switch, and reversed the dismissal of Ekstrand’s claim on that basis.

While the ADA is focused primarily on the interests of disabled employees, the Act’s “reasonableness” standard regarding the interactive process protects the interests of employers by allowing them to show that a requested accommodation would create an undue hardship. However, not every non-zero cost to an employer will be viewed by the courts as “undue” hardship. In this case, the evidence produced by the school indicated that the cost and disruption associated with the classroom change would have been “modest,” leading the Court to find that once the school was informed by the doctor that Ekstrand’s depression was cause by lack of natural light, an obligation was created that either required the school to make the change, or prove that the hardship generated by the change would be significant. Neither occurred, and Ekstrand’s case will go forward on the issue of whether the school failed in its duty to accommodate. Employers should recognize when an accommodation has been requested, full and considered evaluation of the costs and effects should be done promptly, and documentation of those efforts should be complete, in order to support the employer’s decision with respect to the request.
 

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As defined under the Americans with Disabilities Act (ADA), the term “discriminate” includes an employer’s failure to make reasonable accommodations to the limitations of a disabled employee. Reasonable accommodation may include reassignment to a vacant position within the company. The 10th U.S. Circuit court of Appeals recently held that a disabled employee could not support her failure-to-accommodate claim under the ADA, because she did not present evidence of any specific vacant positions to which she could have been transferred. Iverson v. City of Shawnee, Kansas, 10th Cir., No. 08-3264, June 17, 2009.

Michelle Iverson, a police officer with the City of Shawnee, Kansas, suffered a back injury while on duty in 2005. After undergoing surgery for her condition, Iverson was unable to pass a re-qualification test to return to her position as a police officer. She then requested accommodation in the form of a transfer to an open assignment with the City as a detective or non-officer, but was told that there were no jobs available. Iverson filed suit, claiming that she “could have performed numerous positions within the [City] with or without reasonable accommodation.” However, she did not specifically identify any position for which she believed herself to be qualified. Based on that failure, the lower court entered summary judgment in favor of the City. That decision was upheld on appeal to the Tenth Circuit.

For an employee to establish a prima facie case in a failure-to-accommodate claim, the employee must show that she is disabled, that accommodation within the existing job cannot reasonably be accomplished, that she has asked for reassignment to a vacant position, that she is qualified (with or without reasonable accommodation) to perform one or more vacant jobs, and that she has suffered injury because the employer did not offer reassignment to any appropriate vacant position. The Tenth Circuit held that these criteria assume that the burden is on the employee to specifically identify the vacant position or positions for which she believes herself to be qualified. Without such information, the employee cannot subsequently claim that the company’s failure to engage in the interactive process has caused an injury because there is no actual evidence that the interactive process would have likely produced a reasonable accommodation.

In Iverson’s case, she alleged generally that she “could have performed numerous positions within the [City] with or without accommodation,” and, in fact, argued that she could have performed positions as “detective, records technician, police dispatcher, and clerical or administrative positions within the City.” However, she failed to identify any specific position as available at the time that she was requesting reassignment. That failure led the Court to hold in favor of the City.

While this decision is limited to the Tenth Circuit, the court’s rationale is clear: an employee alleging that her employer failed adequately participate in the ADA’s interactive process will lose on summary judgment if she fails to show that a reasonable accommodation was possible, and that the process would have led to such accommodation. This case does not create an excuse for employers’ non-participation in a search for reasonable accommodation of a disability. However, it does point out at least instance in which the employee’s failure to provide sufficient input into the process can keep a case from going forward to a jury.
 

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The 8th U.S. Circuit court of Appeals has upheld summary judgment in favor of an employer who terminated the employment of an individual undergoing cancer treatment. Peyton v. Fred’s Stores of Arkansas, Inc., 8th Cir., No. 08-2346, April 15, 2009. In that case, the Court held that because there was no reasonable accommodation that would have allowed the individual to perform the essential functions of her job during the period in which she was absent for treatment, there was no violation of the ADA.

An employer discriminates against an employee, in violation of the Americans with Disabilities Act, if the employer fails to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” However, ADA protection extends only to individuals who, with or without reasonable accommodation, can perform the essential functions of the employment position that the individual holds or desires.

Floyce Peyton, an experienced retail store manager, was hired by Fred’s Stores of Arkansas as the manager of its Heber Springs store. After successfully completing three weeks of management training, Peyton began work on January 6, 2006. On January 9, Peyton was diagnosed with ovarian cancer and immediately was hospitalized. On that same day, Peyton’s fiancée delivered a note, signed by Peyton’s physician, to the store’s assistant manager, which stated that “Floyce Peyton needs to be off work at least 1/9/06. Return date unknown.”

Peyton underwent surgery on January 12. In the following days, the area manager for Fred’s Stores attempted to discuss with Peyton what type of accommodation Peyton might need. At that time, Peyton responded that she did not know how long she would be out. The area manager then contacted the regional vice-president to inform him of the situation and to advise him that the store was without a manager. On January 14, the area manager again called Peyton to let her know that the company had to “let [her] go.” The assistant manager was then made the store manager at Heber Springs.

In March, Peyton was given a limited release for work by her physician. After six months of chemotherapy, she was deemed physically able to perform the duties that would have been required of her as manager of the Heber Springs store. Peyton subsequently filed a law suit against Fred’s Stores, alleging that the company failed to accommodate her disability. The lower court granted summary judgment on behalf of the company; that decision was upheld by the Eighth Circuit on appeal.

The parties agreed that Peyton was disabled because of her illness and treatment, and that there was no information to indicate when, if ever, she would be able top return to work. They also agreed that, at the time of her hospitalization and initial treatment, Peyton was unable to perform the essential functions of her store manager job, with or without accommodation. Therefore, Payton was not a “qualified individual with a disability” for purposes of the ADA at the time of her firing. Further, the Court found that Peyton’s inability to assert a return to work date would require the company to allow her an indefinite leave of absence which, it held, was per se unreasonable as an accommodation, as it would “burden [the employer] with the duty to see into the future,” which was not the intent of the ADA.

However, employers should not use this case as the basis for overlooking the interactive process required by the ADA when determining whether a reasonable accommodation exists. Because cancer treatment is specifically referenced in the ADA Amendments Act, employers should carefully review situations in which employees ask for accommodation for such treatment, and should assure that a sincere attempt is made to reasonably accommodate such individuals. Employers should pause before considering employment termination to assure that, in fact, the individual is unable to perform the essential functions of the job, and that there is no alternative to an indefinite absence.
 

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