ADA

Julie Barlia worked for MWI Veterinary Supply, Inc. since 2008 as an outside sales rep.  The company established for all sales reps a 95% monthly sales target.  During the 2013 fiscal year, Barlia repeatedly missed the company’s 95% percent sales target.  For the months of January, February and March, Barlia hit 89.5%, 92.7% and 93.9% of sales goals.  Changes were made to her territory, and Barlia continued to miss monthly goals. In some other categories besides sales, Barlia did meet or exceed expectations.  Nonetheless, by 2014 she was hitting 83% on average of her monthly sales goal.

On January 29, 2014, Barlia sent an email to HR stating that she had to miss a national sales meeting because of medical problems she was experiencing.  Her endocrinologist recommended against travel.  She sent a note from her doctor explaining that she was experiencing symptoms pertaining to thyroid and hormonal imbalance.  She also took FMLA leave.

The company decided to place Barlia on a performance improvement plan (PIP) later in 2014 after Barlia missed more sales goals. She was advised if she continued to miss goals that she might be terminated.  In late May 2014, the company decided to identify one or two candidates for layoff should the company decide to reduce its workforce.  Barlia was selected because she was the only sales rep on a PIP.  About 90 employees were laid off nationwide in June 2014, and Barlia was the one sales rep in her region included in the reduction in force.

Barlia sued under the ADA and contended that she was fired due to her disability.  The district court ruled against Barlia partly on the ground that she did not have an ADA disability and partly on the ground that the company had a legitimate non-disability based reason to terminate her.  Barlia appealed to the United States Court of Appeals for the Sixth Circuit.

The Court of Appeals disagreed with the first reason given by the district court.  It said that a reasonable trier of fact could conclude that Barlia qualified as having an actual disability under the ADA.  The Court noted that Barlia had taken leave under the FMLA for “fatigue and decreased mental clarity.”  Her doctor’s note referred to a thyroid disorder and the fact that she was taking Synthroid for treatment of hypothyroidism.  “Barlia has provided enough evidence to create a genuine dispute as to whether hypothyroidism had ‘substantially limited’ one or more of her major life activities.”  The Court pointed out that the ADAAA removed any requirement that a plaintiff prove that the condition is severely restricting.  The Court added, “Though it is a closer call, Barlia has offered significant probative evidence indicating that her hypothyroidism when it flared up, and in the absence of medication, substantially limited her ability to perform a major life activity as compared to most people in the general population.”

Having established that Barlia could be considered protected under the ADA, the Court proceeded to explain why her claim still failed.  The Court accepted the company’s argument that it is had a legitimate reason unrelated to disability for firing Barlia based on her consistent failure to meet sales goals.  Barlia argued that her placement on a PIP was essentially a cover for the company to prepare to fire her. The real reason, she contended, was that the company wanted to terminate her once it found out about her thyroid disorder.  She also argued that one other sales rep in her region had even worse sales, but he was not disabled and he was not fired.

The Court found that there was no support for Barlia’s contention that her placement on a PIP was just a cover for the company’s plan to fire her.  Three months passed between Barlia’s protected activity of seeking absence from the national sales meeting related to her medical condition and the subsequent placement on a PIP.   Secondly, while noting that one other sales rep had very poor sales, the Court observed that the company provided other reasons for placing Barlia on a PIP besides just poor sales.  The company advised Barlia when it placed her on the PIP that she also failed to meet expectations on the frequency and quality of communication regarding her activities in the field as well as efforts to improve her sales budget.

Based on these reasons, the Court affirmed the dismissal of Barlia’s ADA law suit.  The case shows how important it is for a company’s disciplinary action to be based solely on well-founded business reasons. Close timing between disciplinary action and the revelation of a disability is always problematic for an employer.  In this case the company had solid documentation showing that it took action for business reasons, and there was at least a gap of three months between the disclosure of the medical condition and the placement of the plaintiff on a PIP.  The case can be found at Barlia v. MWI Veterinary Supply, Inc., 33 AD Cases 1469 (6^th Cir. 2018).

On July 26, 2012, Stephanie Nichols applied for a job as a Senior Radiology Technologist with OhioHealth Corp at the Riverside Breast Health Center.  She had worked in similar positions for over 30 years.  Nichols received the job offer contingent on passing a medical examination.  In the health assessment form that Nichols completed, she was asked “Do you have any limitations that would keep you from performing the duties of your job?”   Her answer was, “Cannot stoop or work standing on my knees.”

Nichols indicated that her limitations stemmed from a prior meniscus tear that had been repaired one year before she applied for the job.  She added that she has poor balance and that if she needs to go down to the floor that she usually “hangs onto something.”

The next step was a meeting with the Riverside Hospital nurse, Charissa Cattrell.  In that meeting Nichols clarified that kneeling caused her knee pain.  She said she could do the job but that performing some of her duties would cause her more knee pain.

Cattrell referred Nichols to an accommodation specialist, Nancy Miller, at the hospital.  Nichols spoke with the accommodation specialist but said that did not ask for accommodations because she felt she did not need any.  Miller had a different recollection of the phone call and recalled that Nichols requested accommodations by potentially leaving the door to the mammography suite open or having another person to be available to assist her.  Miller said that there was also a discussion about grab bars being installed to help Nichols with any balance issues.

Miller then spoke with the manager of Radiology about the possible accommodations.  The manager said that leaving the door open would violate hospital rules, and installation of grab bars was not possible because of the size of the rooms.

Miller next discussed with Nichols the importance of getting a note from her own doctor stating that Nichols had no limitations.  Nichols offered to come to the hospital and demonstrate that she could do the job, but that offer was declined.  Plaintiff’s physician, Dr. Barker, then faxed a note to OhioHealth stating, “Patient was last seen 9/7/11.  The patient was released without restrictions at that appointment.”   He faxed a second note stating, “Nichols has not required physical therapy at this point in time but certainly she will give us a phone call if she stalls with progress and perceives the need for some reconditioning, which would be nicely accomplished by therapy if necessary.”

The next day Nichols advised hospital personnel that she was ready for orientation.  She was informed that the job offer had been rescinded and the position would not be filled.  Plaintiff sued alleging that the hospital discriminated against her based on her disability or her perceived disability in withdrawing the job offer.

The hospital moved to dismiss the case on the ground that Nichols did not have a covered disability under the ADA.  In her deposition, Nichols admitted that she is not disabled; she just has pain sometimes.   The hospital also argued that Nichols’ own doctor said she has no restrictions whatsoever. “The Court agrees with Plaintiff that Dr. Barker’s return to work without restrictions is not dispositive of whether or not she has a disability, but it is a significant blow to her claim that the knee injury substantially limited a major life activity.”  The Court added, “Further, that her doctor released her without restrictions and that she never sought medical help for her knee between the surgery and the events in this lawsuit is evidence that her knee injury did not substantially limit a major life activity.”

Nichols also argued that even if she did not have a disability, the hospital perceived her as having one and therefore regarded her as being disabled in violation of the ADA.  The Court also dismissed this argument:  “Although this evidence certainly suggests that OhioHealth knew of a possible impairment, the Court agrees with the Defendant that receipt of a doctor’s report showing no restrictions has a preclusive effect on a regarded-as-claim.”

This case illustrates the difficulty a plaintiff may have in proving an ADA claim where, on the one hand, the plaintiff asserts that she can do her job without accommodation and her doctor finds no restrictions, but on the other hand the plaintiff asserts that she has a covered ADA disability.  It is difficult to square those two positions, and the court in this case clearly made the right decision to dismiss this case.  The case can be found at Nichols v. OhioHealth Corp., 2017 U.S. Dist. LEXIS 131146 (S.D. Ohio August 17, 2017).

A leave of absence can qualify as a reasonable accommodation under the ADA, but how long should employers consider granting such leaves?  In Echevarria v. Astrazeneca Pharmaceutical, LP, 33 A.D. Cases 673 (1^st Cir. 2017), some practical guidance emerges on this issue.  The case involved a Pharmaceutical Sales Specialist named Taymari Delgado Echevarria (hereinafter Delgado) who developed a small brain tumor in November 2010, followed by recurrent depression and anxiety.

On December 12, 2011, Delgado’s physician, Dr. Sanchez, recommended that Delgado take time off work for reasons of severe depression and anxiety.   She eventually received short term disability benefits retroactive to December 12, 2011.  Those benefits continued until March 11, 2012, but were terminated because Delgado failed to submit adequate documentation of her disability.  Human Resources then wrote to Delgado and advised her that she must return to work by March 22, 2012.  The letter made clear that if she failed to return to work, Delgado would be considered to have abandoned her employment.

Delgado did not return to work on March 22, 2012, so the HR rep offered her a severance package if she were to resign.  That conversation set Delgado back and caused her condition to relapse, according to Dr. Sanchez.  Astrazeneca then extended Delgado’s leave until April 29, 2012. Another letter was sent to Delgado advising that she must return to work by May 17, 2017 or be considered to have resigned.

Delgado did not return to work on May 17, 2012.  Dr. Sanchez wrote to the company HR rep stating that Delgado would need another 12 months of leave before she could return to work.  Eventually Delgado was terminated in mid-July 2012.  Delgado refused to accept a severance package and sued for discrimination under the ADA.  She argued that her request for leave constituted a reasonable accommodation under the ADA.  The Court said:

The combined effect of two aspects of this case convince us that Delgado has failed to show that her request for twelve more months of leave was a reasonable accommodation.  First, it seems doubtful that Delgado shouldered her burden of showing that the requested accommodation would have enabled her to perform the essential functions of her position.  Second, Delgado has not shown that additional leave for this duration is a facially reasonable accommodation. . .

In an interesting opinion, the Court considered the effect of such a request on the operations of an employer. “Compliance with a request for a lengthy period of leave imposes obvious burdens on an employer, not the least of which entails somehow covering the absent employee’s job responsibilities during the employee’s extended leave.”

This case makes sense.  While it does not answer what the outcome would have been had a shorter period of time been requested, it does provide useful guidance for employers in requiring the employee to show that the requested accommodation would allow the employee to perform the job and is a reasonable request.  Certainly a request for three months of leave would be considered by most courts to be reasonable, just as a request for one year would be considered unreasonable. The gray area is in between the three month period and one year, and the specific facts will always be critical in determining the outcome.

Fitness for duty examinations must meet a standard of being job related and consistent with business necessity.  If the employer does not have enough to meet this standard, the employer may be sued for discrimination under the ADA for improperly requiring a fitness examination.  The employer in Painter v. Illinois Department of Transportation, 2016 U.S. Dist. LEXIS 94940 (D. Ill. July 21, 2016) addressed the issue of meeting the job-related standard by obtaining detailed statements from co-employees supporting the need for a fitness examination.

Deanna Painter was assigned to a position of Office Administrator at Traffic Safety, which was part of a division of the Illinois Department of Transportation (IDOT).  The initial problem concerned an incident involving plaintiff and a co-worker where plaintiff loudly accused the co-worker of prank calling her in the Spring of 2011. Plaintiff was put on administrative leave at that time.  An investigation of this incident led to other employees preparing written statements regarding what they witnessed.  These statements were given to the IDOT fit-for-duty physician, Dr. Fletcher, who then made a decision whether there was a basis for a fitness examination.

Dr. Fletcher read the statements and determined that a fitness exam was needed.  He found plaintiff fit for duty but recommended a reevaluation in 45 days. Around the same time, other employees surfaced and described other incidents involving plaintiff.  Seven more employees wrote statements, describing how the plaintiff would have frequent outbursts and would walk around the office while talking to herself.  Some expressed fears for their own safety. Two or three employees insisted on being escorted by security guards to their cars at the end of the day because they feared that plaintiff would approach them in the parking lot while she was on leave.

Interestingly, plaintiff admitted in her deposition that she had issues with 11 employees in the Traffic Safety area.  The statements from this new group of employees were given to Dr. Fletcher, who again saw plaintiff for a fitness examination but recommended that she see a psychologist, Dr. Karen Lee.  After seeing plaintiff, Dr. Lee decided to take plaintiff as her personal patient, thereby creating a conflict of interest and preventing her from informing the employer of her views.

On September 26, 2011, plaintiff returned to work but in the Day Labor division of IDOT as an office administrator.  Her supervisor noticed that she was making logs of actions of co-employees and conversations with co-employees and reprimanded her for this.  Plaintiff said that she was creating the logs in order to document everything so that she could figure out why she had been placed on leave. Her supervisor pointed out that none of the people in Day Labor had been involved in her situation in Traffic Safety.

Her new co-workers began to complain about plaintiff’s behavior.  Her supervisor also complained that she was sending him emails in the middle of the night that were nonsensical. Plaintiff was again put on administrative leave on November 23, 2011. Two employees prepared statements that said they feared for their safety.  Plaintiff again went for a fitness exam and was again authorized to return to work.  After returning to work, plaintiff sent an email to her union representative stating: “for the record, the clock in the small conference room being set to 4:30 PM when it was only 4:00 PM – that is a tell-tale sign for me.  It told me everything I needed to know. Thanks.”  Plaintiff included a smiley-face emoticon with this email.  The union rep responded that he did not understand the reference and thought the battery was dead. Plaintiff responded, “Something’s dead alright – however, I prefer to be ‘a lady’ and not say what I think is dead.”  This email was treated by IDOT and the Illinois State Police as a threat.

Plaintiff was again placed on administrative leave and sent for a fitness examination.  This time she was found to be psychiatrically unfit for duty as a result of paranoid thinking. Plaintiff’s own psychiatrist disputed this finding.  Plaintiff sued and alleged that she was improperly required to attend fitness examinations.  She later became employed with the Illinois Department of Human Services.

The federal court ruled for the employer stating that there was ample reason to require the fitness examinations:  “The record establishes that prior to each leave and subsequent exam, multiple employees raised concerns about the Plaintiff’s behavior in the workplace.  A number of employees felt unsafe around the Plaintiff. Certain employees did not want to be alone around her and some were afraid to walk to their cars at night.  The Plaintiff shouted at her co-workers, talked in a fast-paced manner and talked to herself at times.  The Plaintiff’s supervisors considered the employees’ statements and their own interactions before determining that Plaintiff was a security risk to the other employees.”

The case is interesting because it shows how careful the employer in this case was in documenting the basis for the fitness examination.  The care which the employer took was clearly warranted, and the result was that the employer easily defeated plaintiff’s ADA law suit.

Derrick Dillard injured his back and shoulder in a work-related car accident in March 2011.  He was unable to perform his previous duties as a Street and Drainage Maintenance Senior for the City of Austin, Texas.  He took FMLA leave and then placed in the City Return to Work Program, which was designed to help employees like Dillard find alternative work for a maximum of 180 days in a year.

Dillard exited the Return to Work Program in January 2012. During the entire period he was enrolled in the program, the City was unable to place him in any position because he remained on a “no duty status.”  The City continued to allow him to remain on leave. Between late January and late April 2012, Dillard was released by his doctors to perform “limited duty” or “administrative duty” work.  The City offered him “administrative work” from May through October 2012.

Dillard lacked the three years of clerical or secretarial experience for an administrative assistant position, so the City offered him on-the-job typing and computer training.  Dillard’s supervisor testified that she repeatedly told Dillard to complete more training and showed him how to sign up for more training, but Dillard did not do so.  He was found playing computer games, surfing the internet, sleeping, making personal calls or looking for other positions while he was supposed to be training.  He missed work without proper notice, came late and left early, and lied about his time.  He attended work only 74% of the time over a 21-week period.  The City gave him an unsatisfactory rating.

For his part Dillard admitted that his lack of typing skills made it impossible for him to complete the one assignment he was given.  He asked Human Resources to give him another position.    Meanwhile, Dillard’s doctors were increasing his capacity to perform certain lifting and physical activities.  The City scheduled him for a pre-termination meeting based on his poor performance while on administrative duty.  The Director noted that Dillard was unapologetic for his inappropriate behavior and admitted that comments about his poor performance were accurate. The City fired Dillard on October 26, 2012.

Dillard sued for discrimination under the ADA and argued that the City should have considered him for vacancies across all departments, not just the Public Works Department, once it became obvious that he lacked the skills of an administrative assistant.  The lower court disagreed and noted that the breakdown in the interactive process was caused by Dillard’s failure to make a good faith effort to make the administrative position work.

The Fifth Circuit Court of Appeals held that the City did not fire Dillard because of any disability but because he was frequently late, used work time to play games, and failed to take advantage of training opportunities.  The Court conceded that the City had a duty to make reasonable accommodation and engage in the interactive process. “Dillard’s position neglects that the interactive process is a two-way street; it requires that employer and employee work together, in good faith, to ascertain a reasonable accommodation.”  The Court said that the City made a reasonable accommodation with the administrative assistant position.  “At this point, the ball was in his court; it was up to him to make an honest effort to learn and carry out the duties of his new job with the help of the training the City offered him.”  The Court felt it was pivotal that the City offered him training which Dillard neglected.

The case can be found at Dillard v. City of Austin, Texas, 837 F.3d 557 (5^th Cir. 2016). It is an interesting case because there are so few published cases where the plaintiff is fired while on alternative duty and while performing inadequately during alternative duty.  Clearly the case’s reasoning makes sense:  when an employee’s job performance is grossly sub-par during alternative duty, and where the employee does not take advantage of offered accommodations, the employee has no argument that his termination is a violation of the ADA.

Kenneth Camp worked for 38 years for Bi-Lo, LLC., a grocery store in Tennessee, as a stock clerk.  He worked with two others stocking the grocery with product each night.  In March 2012 the Store Director, Mr. Gilreath, arrived at the store and noted that the three stock-shift clerks had not finished shelving all the product.  He asked why not.  The supervisor, Mr. Bishop, said that Camp had a bad back and the other two workers had to pitch in to help with the heavy stuff.  Bishop also said that “it was hard for them to get done with Camp on restrictions.”

Since a teenager Camp suffered from scoliosis but he had always worked with this medical condition.  Gilreath never knew about the back condition until March 2012. He approached Camp and told him the company was thinking of putting him on light duty.  The HR Director asked Camp if he felt he could do the job.  Camp said, “Yes, I can still do everything.  I know what I can lift and what I can’t, and I can do all the other things except lift the real super heavy items.”

Camp was given a job description which was written in 2007, almost 30 years after Camp began working for the company, which identified lifting requirements, including being able to safely lift over 35 pounds.  The job description also said he had to be able to lift at least 20 pounds constantly and 20-60 pounds frequently. On April 24, 2012 the company advised Camp he would have to take a leave of absence. He was instructed to use his remaining sick leave and vacation days, followed by short-term disability in order to reach his 62^nd birthday.  At that point he could retire.

Camp wanted to return to work after his short-term disability ended but the HR Director said he would have to be cleared by his doctor to lift 60 pounds.  Camp’s leave was extended several times but on October 12, 2012, he was advised he would be terminated if he did not provide a fitness for duty form from his doctor.  Camp requested that he be permitted to return to work as he had done for many years with his two co-workers lifting the heaviest items.  The company refused this request and terminated his employment.

Camp sued and argued that the company discriminated against him on the basis of his disability.  He lost at the federal court level and appealed. The issue on appeal came down to whether heavy lifting was an essential job function.  Bi-Lo argued that the 35 pound lifting requirement was an essential job function.  Camp and his two co-workers testified that they had never seen this 2007 job description or any other job description during their long period of employment.  Bishop, who was Camp’s immediate supervisor, testified that “heavy lifting was not an essential function of Camp’s job, and Mr. Camp did his job fine.”  Bishop also said that heavy lifting was only a very small part of the job. The other co-worker said the same thing.  Both co-workers said that the way they worked was Camp would put items on the shelves while the other two men would carry the heavier items so there was no loss of efficiency.  In essence, the two workers made accommodations for Camp’s inability to lift very heavy items.

Given this testimony, the Sixth Circuit Court of Appeals said that a supervisor’s testimony may rebut the written job description regarding what constitutes an essential function.  The Court said, “This is not a case involving a firefighter, nurse, police officer or a military person where the inability to lift the ‘required’ weight could put an innocent person’s life at risk or cause ‘undue hardship’ or even endanger a colleague.” The Court said that summary judgment should not have been granted for the employer in this case because there was enough evidence for a jury to decide that the ability to lift more than 35 pounds is an essential function of the stock-clerk job. The Court further noted that the record showed Camp was meeting all job expectations, and his termination stemmed from only one incident when the crew did not get their work done on time. There was no proof by the company of any other instances where the 35 pound requirement could be shown to explain why there were delays in getting work done. “Bi-Lo has presented no evidence that accommodating Camp’s disability caused undue hardship to his coworkers.”

This case can be found at Camp v. Bi-Lo LLC, 2016 U.S. App. LEXIS 19053 (6^th Cir. 2016).   It is a case worth studying.  When it comes to deciding what is an essential job function and what is a reasonable accommodation, this case emphasizes the importance of considering not just the written job description says but what actually happens in the workplace.  It also shows how important it is to speak with supervisors on the job before making termination decisions. Ironically, in this case the plaintiff’s own supervisor turned out to be the key witness against the company.

In Cook v. Gregory Press, Inc., 2016 N.J. Super. Unpub. LEXIS 1885 (App. Div. August 11, 2016), the Appellate Division reversed a trial court’s dismissal of a plaintiff’s disability discrimination case involving an employee eventually diagnosed with Lyme disease.  The case involved Matthew Cook, who worked as a printing machine operator since 2002.  In 2011, he began experiencing facial numbness, tingling in the hands, and neck pain.  He saw a neurologist who thought he might have a demyelinating disease, recommending an MRI of the brain and spine.

Before Cook went for the MRI, his home was damaged by Hurricane Irene, and he was out of work for almost a week making repairs. He was given a day off from work on September 9, 2011 to undergo the MRI, which showed myelitis.  His doctor recommended next a spinal tap to determine whether he might have MS, Lyme disease, or a virus. His boss granted him time off to get the spinal tap but suggested that Cook really had nothing wrong with him.  The boss said he thought his problem was stress from the flood.  Cook responded that this would not explain a lesion on his spine.

The spinal tap occurred on September 16, 2011, and Cook experienced complications from the spinal tap, including dizziness and headaches.  He stayed in bed all weekend but went to work on September 19, 2011.  He found that his head was pounding as the day went on and he had to leave to go home.  His doctor prescribed fioricet.  He could not work the next day due to severe headaches and nausea.  His doctor prescribed Prednisone to relieve inflammation, but that made him jittery.  His doctor next faxed a note to Cook’s supervisor saying that Cook needed to be out until released later in the week.  Cook called his boss to ask for more time off, but his boss said that Cook better get back to work by Wednesday, September 21, 2011.

Cook did not feel well enough to return to work on September 21^st but he did return anyway because he felt he had to.  His head was pounding, and the loud noise from machines was aggravating his pain.  He made a production mistake which delayed a printing job and wasted paper.  His boss then proceeded to yell at him for the production mistake.  Cook told his boss to stop yelling at him and then took off his headphones and threw them in a garbage can, walking away.  His boss continued to yell at him, whereupon Cook told his boss that he would pay for the wasted paper but admonished his boss to stop yelling.  The two men stared at each other, and then Cook walked away, telling his boss that all the yelling was aggravating his headache pain.  Shortly thereafter, Cook was fired.

At some later point in time, Cook was diagnosed with Lyme disease and began intravenous therapy for 27 days.  His doctor noted that the combination of Lyme disease and the effects of the spinal tap would naturally have an effect on Cook’s ability to handle stress.  Cook sued under the New Jersey Law Against Discrimination (NJLAD) for wrongful termination and failure to make reasonable accommodation.

The trial judge threw out Cook’s case, finding that Cook was terminated for his bad attitude, not because of any disability.  The judge also found that it not the responsibility of the company to initiate the interactive process where all the plaintiff says is that he has a headache.

The Appellate Division reversed for the following reasons.  It said that the definition of disability under the NJLAD is much broader than the ADA.  Under the NJLAD the plaintiff only has to show a physical or psychological condition which prevents the normal exercise of any bodily or mental function.  One need not show a substantial limitation of a major life activity as is required under the ADA.

Under the court’s analysis, Lyme disease is a serious condition which qualifies as a disability under the NJLAD.  It said that Cook’s doctor established that his patient had physical symptoms of Lyme disease while employed by Gregory Press.  Because of his condition, Cook had to undergo medical testing that caused severe headaches and required steroid treatment, both of which affected Cook’s ability to work.  The court also found that a jury could infer that the employer was aware of this disability, that Cook requested a reasonable accommodation in the form of leave, and that he could have been reasonably accommodated.  The court said:

Plaintiff requested and was granted time off for the MRI and spinal tap.  Plaintiff told Jeffrey (supervisor) about the spinal tap, and Gregory (another supervisor) approached plaintiff prior to the procedure and, despite knowing of the lesion on plaintiff’s spine, expressed his doubt there was anything wrong with plaintiff.  Plaintiff returned to work on Monday with a severe headache, told Jeffrey about it, and Jeffrey permitted him to leave early.  The next day, defendants received Dr. Monck’s note advising plaintiff was under her care and had an exacerbation in his neurologic condition, side effects of the spinal tap, and could not return to work until later  that week ‘based on his recovery.’ Plaintiff advised Jeffrey that he was on steroids, the headaches could last a week and asked for the rest of the week off.  Jeffrey ordered plaintiff back to work without further investigation or inquiry.  Believing he had no choice, plaintiff returned to work the rest of the week, still suffering a headache and the effects of the steroids, which attributed to the production mistake.  We conclude a jury could reasonably infer from this evidence that defendants knew of plaintiff’s disability, plaintiff requested a reasonable accommodation, plaintiff could have been reasonably accommodated, and defendants failed to make a good faith effort to provide a reasonable accommodation.

In New Jersey, it is rather easy for a plaintiff to prove a disability, so employers must take requests for time off work seriously when there are medical issues involved. The case is a primer for how an employer should not make termination decisions in a situation where an employee is having serious pain and symptoms from a cause as yet unknown.  That the employer did not know plaintiff had Lyme disease at the time of firing was not a defense.  The employer knew enough to realize that Cook may have a disability.  The employer made a number of major mistakes in this case, first in pressuring the plaintiff to return to work before his doctor approved it, and second in engaging in a verbal confrontation while Cook was complaining that the yelling was aggravating the condition that he was treating for.  It is also worth noting that the employer should not have speculated on the “real” problem that plaintiff was having, in suggesting his problems were related solely to stress. Lastly, the employer should have tried to engage in the interactive process before making the precipitous decision to fire Cook.

Katherina Swank worked for CareSource Management Group (hereinafter CareSource) as a Registered Nurse (RN).  CareSource provides managed healthcare services to Medicaid recipients.  Her work involved case manager duties by telephone until CareSource initiated a new approach in 2011 to delivering managed care services to the Ohio Department of Job and Family Services, which mandated that CareSource employees meet face-to-face with certain high risk members of the community on at least a quarterly basis.

This face-to-face requirement posed a problem for Swank because she suffered from rheumatoid arthritis.  She had intermittent difficulty with walking, lifting heavy items, and driving.  She had a weakened immune system and was susceptible to illness.  Because of these medical issues, CareSource had allowed Swank to begin working from home in 2009.  When management contacted Swank in 2011 about the change in requiring face-to-face visits with members, Swank said that she had concerns about this, in particular having to drive a great deal as well as the impact on her autoimmune condition.

Swank sent a letter on November 14, 2011 to the Senior Vice President of Health Services stating that the new position “would be hazardous considering her current health condition.” She elaborated that contact with high risk patients would be detrimental to her health. She met with management and stressed that long distance driving would also be a problem.  CareSource suggested that Swank make an accommodation request.

Swank filled out an application for an accommodation and stated that she was “unable to tolerate being exposed to changes in weather conditions” and “unable to sit/stand for long periods of time.” Her request was to be permitted to continue to work in an office setting. Her physician weighed in by saying that Swank would have “difficulty” performing some of the job duties of the new CMHR job position.  Her doctor also said that during acute flare-ups of her rheumatoid arthritis, her medical condition would preclude her from traveling to and from work and from being at work.

Ten more conversations took place between the parties with no real progress. Ultimately Swank admitted that she could not perform the essential functions of the new CMHR position, and CareSource advised that it had no other position for her.  The company then terminated her employment.

Swank sued under the ADA and contended that the company failed to make reasonable accommodation for her disability.  The district court ruled for CareSource and the United States Sixth Circuit Court of Appeals affirmed the dismissal of Swank’s case.  The Court noted as follows:

• There was evidence that Swank could not perform her job duties at all during flare-ups of her rheumatoid arthritis.
• The Court had a right to rely on statements by Swank’s doctor that she was likely to have acute flare-ups even though Swank disagreed with her own doctor on this point
• Driving was an essential function of the CMHR position because driving was included in the “Work Environment/Physical Requirements” section of the job description, even if it was not mentioned in the CMHR heading as an essential job function.
• Making face-to-face visits with high risk patients was an essential job function

Swank also argued that the company should have considered reassigning her to a telephonic position in Dayton or Cleveland.  The Court noted that at the time she raised this issue, there were no such positions available.  Further, this would not have addressed Swank’s restrictions against long distance driving.  Lastly, one of the Cleveland positions would have required a promotion for Swank, and the Court noted that this is never required of an employer under the ADA.

The Court rejected the argument that Swank made a reasonable accommodation request:

“Swank failed to propose a reasonable accommodation that would have addressed her stated driving limitations.  Swank contends that she proposed a reasonable accommodation because she ‘sought to be assigned members in the geographic area of her home in order to limit driving long distances.’ However, Swank testified that even if she were assigned members closer to her home, she still might have to sit in the car for long periods of time due to traffic or bad weather and still might experience flare-ups due to changes in the weather. Swank therefore agreed that assigning her members closer to her home would not adequately address her concerns.  Accordingly, because Swank did not propose a reasonable accommodation to CareSource that would address her stated limitations, her interactive-process claim fails as a matter of law.” 

This case shows how important it is for an employer to ask an employee to outline in writing any health restrictions and make a specific request for accommodation.  Here the plaintiff boxed herself in by listing so many restrictions that it would be nearly impossible for the company to find a job which would meet all the restrictions.  When plaintiff tried to walk some of the restrictions back, contending that she was not really all that restricted, the employer correctly held her to her written representations and held her doctor to them as well.  The case also shows how important it is to list the essential functions on a job description.  It is worth the time to get the job description right, which CareSource did here in stating that driving and traveling were essential functions.

The case can be found at Katherina Swank v. CareSource Management Group Corporation, 32 AD Cases 1731 (6^th Cir. 2016).

Michael Cannon applied for a job with Jacobs Field Services (hereinafter JFS) as a field engineer for a Colorado mining site. The company made him a job offer conditioned on his passing a post-offer medical examination.  During the post-offer exam, Cannon revealed to the doctor that he had an inoperable rotator cuff tear and had taken Ultram (a brand name version of the opioid Tramadol).  He said he still had the prescription but was no longer taking it. In fact, he passed the drug test portion of the post-offer examination.  The doctor cleared Cannon provided that JFS offered accommodations of no driving company vehicles, no lifting, pushing, or pulling more than 10 pounds and no working with his hands above shoulder level.

Less than two hours after receiving the doctor’s report, the company’s technical operations officer at the mining project wrote that the job offer should be rescinded because a field engineer must be capable of driving and lifting.  Ladder climbing was an essential function of the job.  Further, the job site was located in the mountains with rocky terrain over several miles, so driving was essential.  This decision to revoke the job offer was not communicated immediately to Cannon.  A Human Resources Manager later contacted Cannon, expressing concerns about his ability to perform the essential functions of the job.  Cannon offered to contact the Occupational Health Department to address concerns that he was still taking Ultram (he said he was not).  He also brought a note from his doctor stating that he could climb ladders by maintaining three point contact with either arm.

Two days after the examination, Cannon submitted the doctor’s note to JFS.  But the company revoked his job offer and never discussed the doctor’s notes he submitted.  Cannon still tried to prove JFS was making a mistake by offering a video of him climbing a ladder while maintaining three point contact, using his non-injured shoulder.  When all efforts failed, he contacted the EEOC, which concluded that JFS had engaged in disability discrimination.  Cannon then sued under the ADA.

At the federal court level, the company prevailed.  The district court found that Cannon’s rotator cuff injury did not render him disabled under the ADA.  Cannon then appealed to the Fifth Circuit Court of Appeals.  The Appeals Court observed that the ADA Amendments Act made it easier for people with disabilities to obtain coverage under the ADA.  “There is ample evidence to support a conclusion that Cannon’s injury qualifies as a disability under the more relaxed standard.  Although the district court concluded otherwise, the ADA includes ‘lifting’ in its list of major life activities.”  The Court said that Cannon could prove that he was substantially limited in lifting because he was unable to lift his right arm above his shoulder and had considerable difficulty lifting, pushing, or pulling objects with his right arm.

But even if he had a substantial limitation in lifting, Cannon still had to prove that he could perform the essential functions of the job.  Cannon insisted that he did not need any reasonable accommodation at all.  He said that by using his left arm effectively, he compensates for his right arm limitations. He also said he was not taking Ultram and would therefore not be in violation of the company’s policy that “employees who are taking narcotics are not permitted to operate company vehicles.” Cannon’s doctor said that his patient was still being weaned off Ultram, while Cannon asserted he was off the drug and noted that he passed the company drug test.  He still had the prescription but was not using it.  The Court said that the jury should decide whether Cannon was or was not still taking Ultram.

As for the climbing aspect of the job, Cannon agreed with JFS that this was an essential function but insisted that the video he presented to the company showing him climbing was proof he could manage it by use of his left arm in keeping three point contact with the ladder.  Cannon’s doctor submitted a note stating that his patient could climb despite the shoulder injury.  The company argued that in the video Cannon raised his injured right arm above his shoulder in violation of his doctor’s orders. JFS argued that the ADA does not require an employer to permit an employee to perform a job function that the employee’s doctor says is forbidden.  The Court felt that there was enough evidence to go to a jury on the question of whether Cannon could perform the essential job function of climbing a ladder.  The Court was somewhat critical of the company in stating that the company could have questioned Cannon or his doctor at the time he submitted the video or asked Cannon to actually demonstrate that he could climb a ladder.

Perhaps most importantly, the Fifth Circuit Court of Appeals said that the company failed to engage in the interactive process that the ADA requires.  The Court seemed to feel that the company jumped the gun in deciding within two hours that the applicant could not perform the essential job functions without engaging in any interactive dialogue.

The case drives home a number of points for practitioners.  For workers’ compensation practitioners it is important to reflect that shoulder injuries, particularly rotator cuff tears, abound in all states.  Employers should consider that under the ADA Amendments Act, coverage can easily be found for such shoulder conditions with the expanded definition of disability. Secondly, the post-offer process is not exempt from the requirement that employers engage in an interactive dialogue with applicants who may have covered disabilities.  Employers should err on the safe side and consider that the medical condition may be covered under the ADA and then engage in the interactive dialogue.

This case may be found at Cannon v. Jacobs Field Services, 813 F.3d 586, U.S. App. LEXIS 531, (January 13, 2016).