ADA

Bryan Shirley worked for Wyman-Gordon Forgings, L.P. (“W-G”) as an operator of the largest extrusion press in the world.  Company policy required that any employee who should develop a problem with drugs or alcohol must confidentially inform the HR manager in order to pursue treatment.  Failure to comply with treatment could subject the employee to discharge.

Shirley suffered a near overdose in November 2009.  He requested a medical leave to be treated for his addiction.  He entered a program in Houston, Texas, involving two steps: first, cleansing the body of drugs, and second, undergoing treatment to curb the need for the drug.

Shirley completed the detox portion of the program on December 5, 2009.  Against the recommendation of his treating doctor, Shirley sought to be discharged before completing the second portion of the program.  He saw his physician, who gave him a return-to-work note on December 9, 2009.  The HR representative informed Shirley that his early departure from the program was grounds for termination under the company’s drug-free workplace policy.  The company allowed Shirley to reenter the program to complete the second phase.

After the second admission to the program, Shirley tested positive for hydrocodone on readmission.  He admitted to taking Vicodin following his initial discharge.  After only one day of detox, he checked himself out again.  A few days later the company fired Shirley for twice failing to complete the program.  Shirley sued under the ADA and argued that he should be protected from job termination because he was participating in a rehabilitation program and had a covered disability, namely drug addiction.

The district court ruled against Shirley, and the Fifth Circuit Court of Appeals affirmed.  The court noted that current users of illegal drugs are not protected by the ADA.  It said that someone who had used illegal drugs in the weeks or even months preceding the adverse employment action may be considered a current user of illegal drugs.

Shirley argued that he was participating in a supervised rehab program and was no longer engaging in illegal drug use when he was fired.  The court said that the mere fact that he was in a program did not mean he was automatically protected under the ADA.  The court said that a significant period of recovery is needed for an employee to be protected under the ADA.

As the district court noted, Shirley’s refusal to complete an inpatient treatment program, his insistence that he remain on an opiate pain reliever, and his continued use of Vicodin following detox ‘supported a reasonable belief that continued drug use was still an on-going problem at the time W-G terminated his employment.’

This case may be found at Shirley v. Precision Castparts Corp., Wyman-Gordon Forgings, L.P., 726 F.3d 675 (5^th Cir. August 12, 2013).

Employers cannot always make accommodations to persons with disabilities, and the obligation only arises if the employee can show that he or she is qualified to perform the essential functions of the job with or without accommodation.

In the case of Atkins v. Eric Holder, Attorney General, 2013 U.S. App. LEXIS 12340 (4^th Cir. 2013), the plaintiff was a Correctional Counselor for the Federal Bureau of Prisons.  He suffered from a disability due to polyarthropathy of the right  knee and degenerative disc disease.  As a result of his medical conditions, he had significant restrictions limiting the amount of time he could walk or stand.  In fact, he utilized two metal canes and stated that sometimes he was afraid for his safety in working.  His doctors indicated that his restrictions were permanent in nature.

The Bureau of Prisons terminated Atkins’s employment because it concluded that there was no way for him to safely perform his job.  Atkins sued and argued that he was discriminated against on the basis of his disability.  The federal district court and the Fourth Circuit Court of Appeals rejected his law suit.  It laid out the requirements for Atkins to prove his case:  “(1) that he has a disability; (2) that he is otherwise qualified for the employment or benefit in question; and (3) that he was excluded from the employment or benefit due to discrimination solely on the basis of the disability.”

The Court ruled in favor of the Federal Bureau of Prisons on the ground that Atkins could not show he was otherwise qualified:

 There is no dispute that Atkins was disabled at the time of his termination.  However, we conclude that the district court did not err when it held that Atkins was not otherwise qualified for his position.  Only persons who are ‘qualified’ for the position in question may state a claim for disability discrimination.

The Court went on to explain that the plaintiff has to show that he can perform the essential functions of the employment position that he holds or desires.  42 U.S.C. § 12111(8) (2006). See also 29 C.F.R. § 1630.(m) (2012).  It further held:

At the time of his termination, Atkins was under several medical restrictions that significantly curtailed the time he was allowed to walk or stand.  Prior to being barred from the institution, Atkins was assisted by two metal canes with forearm braces and stated that he was afraid for his safety.  Because the correctional counselor position was a law enforcement position that required Atkins to physically restrain and control inmates, and no accommodation could be made to alleviate his restrictions, we conclude that Atkins did not make a prima facie claim for disability discrimination.

The case is helpful in showing the burden that a plaintiff bears in a disability discrimination suit.  What made the defense easier than many other disability discrimination cases is the very physical nature of plaintiff’s job, namely having to potentially physically restrain and control inmates.  An employer does not have to create a light duty job or remove essential job functions as an accommodation, and there was simply no way for the plaintiff in this case to do his job under the circumstances.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Termination of Correctional Counselor Upheld

Winning on summary judgment on fact sensitive ADA cases can be quite difficult as seen in Croy v. Blue Ridge Bread, Inc. d/b/a Panera Bread, 28 ADA Cases 414, (W.D. Va. No. 3:12-cv-00034, July 15, 2013).

Mark Croy worked for Blue Ridge Bread (hereinafter BRB) as a café worker. In 2008, he received a promotion in the marketing department.  He received a formal write-up on March 14, 2009 for failing to properly prepare for an in-store event and a second write-up on May 21, 2009 for failing to update a store’s Facebook page in a timely manner.  He received a third write-up on December 28, 2009 for using an inappropriate tone in a phone call with his supervisors.  He also repeatedly failed to submit Product Request Forms which led to shortages in product.

Notwithstanding these deficiencies, Croy had a performance review in 2009 that resulted in a “meets expectation” assessment.  He also claimed that he was told in 2010 that his performance was excellent and he would be getting a large bonus.

In February 2011, Croy began to experience flu-like symptoms and needed time off to see a doctor.  He worked reduced hours for several days. He was given a preliminary diagnosis of HIV on March 10, 2011.  He sent a Facebook message that same day to one of his supervisors stating that he went to an infectious disease specialist and there were strong indications that he had a virus like HIV.  He said that over the next few weeks he had numerous conversations with two supervisors advising them of his HIV diagnosis.

On March 14, 2011, Croy returned to his regular schedule. He said his supervisor asked him to provide a doctor’s note stating that he was physically able to return to work.  However, on March 24, 2011, Croy applied for a disability insurance policy through BRB.  On March 25, 2011 Croy presented a note from his doctor stating that he was able to return to work full-time without any restrictions.  The note said nothing about his medical condition.

BRB denied that it was aware of the HIV diagnosis.  At most, the company said it had been made aware of the possibility of such a diagnosis.

On March 29, April 4, and April 8, Croy once again failed to submit Product Request Forms.  Croy admitted his mistake:  “No questions . . . I screwed it up. I am just at a lost at [sic] my mind the past few weeks.  Too much going on I guess and too much distraction . . . I am sorry to let you and the department down like this, but I view it as a temporarily distracted and worried time in my life that will not be repeated.”

Pursuant to the company’s three strike policy, Croy’s employment was terminated.  The company claimed that after the termination, in mid-April 2011, Croy then advised for the first time that he was HIV positive. Croy sued under the ADA, claiming that BRB terminated his employment because of his HIV positive status.

The company made a motion for summary judgment and argued that Croy had repeatedly been written up for violations, particularly in 2009, and repeatedly failed to submit Product Request Forms.  According to the company, this was the sole reason for his termination.  The Court did not accept this position. “While Croy admits to some performance errors during his nearly five-year tenure with BRB, he was never told he was in danger of losing his job until the March 28, 2011 write-up.  His most recent performance review indicated that he was meeting expectations, and he had recently been told that he was doing an excellent job and would be receiving a substantial bonus in the coming year.”

In a key point of the decision, the Court noted that the company had never formally disciplined Croy until close in time to his diagnosis. “By the defendant’s own admission, Croy had made similar mistakes numerous times in the past and had never been formally disciplined.  Additionally, Croy reports that a number of his co-workers, including his supervisors Jackson and Perpetua, also failed to properly submit PRFs and were not disciplined for their mistakes. The court believes that Croy has at least established a genuine question of fact as to whether he was meeting BRB’s expectations.”

The Court observed that Croy had not been perfectly clear regarding his diagnosis.  In fact, in one place on his disability application he had denied having had any diagnosis of HIV in the past seven years.  Nonetheless, the Court said that there was a significant dispute whether Croy had told his two supervisors about his diagnosis before he was fired. “Although the defendant can dispute this version of events at trial, it cannot do so at summary judgment where the plaintiff’s testimony must be credited.  Moreover, it is undisputed that, at the very least, Croy told his supervisors of a preliminary diagnosis of HIV, as documented in the March 10, 2011 Facebook message he sent to Jackson.”

It is important to understand this decision merely allowed the case to proceed to trial, meaning that a jury could ultimately conclude either that the company terminated Croy for purely performance reasons or that the company improperly terminated him on account of his HIV status.  In analyzing what went wrong for BRB, the case shows why a company not only needs to document deficiencies on the job but also take progressive discipline if the problem recurs.  The failure of the company to put Croy on notice that his job was in danger when he made repeated mistakes in prior years came back to hurt the company’s chances in its motion for summary judgment.

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

The words “fitness for duty” do not appear in the New Jersey Workers’ Compensation Act, but the issue is of paramount importance to employers and employees in many workers’ compensation cases.  In New Jersey the need for a fitness exam is often compelling because medical and temporary disability benefits end at maximal medical improvement often without any comment from the treating physician about whether the employee can return to work.  When workers’ compensation benefits end, the focus often turns next to whether the employee can return to work and perform the essential job functions.  This is not for the Judge of Compensation to decide in New Jersey.

When can an employer require a fitness-for-duty examination in a workers’ compensation setting?

Practitioners must differentiate between employees who are out of work and employees who are working.  When an employee seeks to return to work following a workers’ compensation absence and there are restrictions imposed by the treating doctor, a fitness-for-duty exam is appropriate.  In fact, New Jersey physicians often seek guidance from FCEs, functional capacity examinations.  In contrast, when an employee with a workers’ compensation claim is working, an employer cannot request a fitness exam absent a business reason. A medical evaluation of an employee can be required by an employer under the Americans with Disabilities Act and under state disability law. The ADA standard is “job related and consistent with business necessity.” 42 U.S.C. 12112(d)(4).  In other words, the employer must have a legitimate reason to require an existing employee who is working to attend a fitness exam.  Examples might be if the employee is expressing difficulty or pain on the job, is limping while working, or is asking for accommodations.

It is important to appreciate differences between the New Jersey Workers’ Compensation Act and laws in other states.  Many states have a requirement for vocational rehabilitation.  New Jersey does not.  Awards for partial permanent disability in New Jersey are not generally dependent on how long an employee has been out of work but on the level of functional loss in the injured body member.  New Jersey compensation law does not provide job protection, except against retaliation for filing a workers’ compensation claim.  Temporary disability benefits and medical benefits end at maximal medical improvement in New Jersey.  Whether the employee returns to work may not matter all that much as far as the outcome of a workers’ compensation claim but it matters to the employee and employer for obvious reasons.

Workers’ compensation cases suddenly merge into labor law at the return to work stage.  It is outside the power of a Judge of Compensation to order an employer to return an employee to work.  However, employees have rights under the Americans with Disabilities Act, the Family and Medical Leave Act, and the New Jersey Law Against Discrimination that impact on return-to-work status.  Many workers’ compensation claimants are covered under the ADA and NJLAD but these laws do not automatically mean the employee must be reinstated.  An employee with a disability must be able to perform the essential functions of the job with or without reasonable accommodation.

How then do employers decide whether an employee who has been out of work with a serious injury is fit for duty?

Medical and legal guidance is crucial.  From a medical vantage point, employers can reach out to treating doctors, occupational physicians or physiatrists for advice on fitness for duty.  As mentioned above, FCEs are a wonderful tool that provide objective and scientific information about ability to perform essential functions. For this reason, treating doctors routinely ask for FCEs before giving opinions on restrictions and ability to perform job duties. From a legal standpoint, it is important to consider the application of disability and leave laws that may apply.

Here are some common traps that employers fall into in fitness assessments:

* The Ambivalent Treating Doctor Syndrome

Quite often the treating doctor imposes serious job restrictions that carry on for many months.  There may be severe restrictions against lifting, bending, reaching and performing other physical functions. Light duty may be offered. After maximal medical improvement is reached and compensation benefits end, the employee will often contact the employer to return to work. When the employer expresses concerns about the medical restrictions, a short note may suddenly appear from the treating doctor removing all restrictions.  This stunning turn of events leaves employers shaking their heads.

* The “Wing It” Return-To-Work Note

New Jersey is blessed with highly skilled surgeons in the workers’ compensation arena.  However, surgeons are not always the best choice when it comes to deciding whether the employee can do a particularly difficult job.  A good fitness-for-duty examination requires time, information and medical expertise.  The job description must be read and considered, and the physician must speak with the employee about job duties.  In addition, FCEs should be analyzed to see that the testing reflects the actual job duties to be performed. Cryptic medical notes following a serious surgery stating, “Bill may return to work full duty” without analysis or any indication that job description has been analyzed are more often than not “wing-it” notes.  There are risks to the employee who is returned to a job that he or she cannot safely perform, and a well-intentioned “wing-it” note can do more harm than good.

* Reflexively Turning to Treating Doctors

When it comes to assessing fitness for duty, the best choice is generally an occupational physician or physiatrist who specializes in this area of medicine and has an understanding of reasonable accommodation requirements. These experts often have training in biomechanics and are willing to expend the time it takes to fully appreciate the job duties and consider possible accommodations. There is simply no substitute for thorough analysis. The idea that fitness assessment is as simple as scribbling on a note pad could not be further from the truth.  Yet all practitioners continue to see treating doctors hurriedly write “full duty” without any analysis at all of the job requirements or previous restrictions.

* Asking the Comp Adjuster Whether the Employer Must Reinstate

This is also a very common mistake that employers make in New Jersey.  The reason this happens is that many employers erroneously think that return-to-work issues are decided in comp court.  Almost every adjuster has been asked more than once for advice from an employer on whether the employer can terminate or must reinstate.  This is a complex medical/legal inquiry with significant labor law implications that should be put to house counsel or outside counsel for guidance.

Developing a return-to-work team is the best solution. There is an important role on this team for counsel, HR managers, claims professionals, supervisors, nurse case managers, and medical experts.  It is a fact of life that many employees post-injury cannot return to their former job while many others can and should be reinstated.  The process is complex but can be handled effectively with a consistent and comprehensive approach.

Dr. Leon Coursey worked as an Assistant Professor in the Department of Physical Education at the University of Maryland Eastern Shore.  He began there in 1972.  Students logged complaints about Dr. Corsey in 2004, and several colleagues registered complaints in 2007.

In 2009, 12 students reported that Dr. Coursey exhibited erratic behavior in the classroom.  He yelled at a student, and he complained about students who questioned his grading methods.  He was alleged to have told students that he was the most senior faculty member and “no one could touch him.” Another student said that Dr. Coursey had gone berserk.  Four students made written complaints about him, and one adjunct faculty member reported that Dr. Coursey came up behind her while she was sitting at her computer, put his arms around her and stuck his tongue in her ear.

The University suspended Dr.Coursey on February 3, 2009 and later required him to undergo a fitness-for-duty examination.  Dr.Coursey refused to attend the fitness exam.  Instead, he filed a discrimination complaint with the EEOC on October 29, 2009.

On May 25, 2010, the University President filed charges to have Dr. Coursey terminated for professional misconduct.  On November 4, 2010, the Faculty Grievance Board unanimously voted in favor of termination.  Dr. Coursey contested the termination and appealed to the University President, who upheld the termination. Further appeals were to no avail, leading Dr. Coursey to file suit under the ADA.

First, the Court dealt with the argument by Dr. Coursey that he was “regarded as” having a disability because the University requested that he undergo a fitness examination.  The Court rejected this position:  “[A]n employer’s request for a medical examination, standing alone, is not sufficient to establish that the employer ‘regarded’ the employee as disabled.”  (citations omitted).

In response to the argument that the University unlawfully demanded that Dr. Coursey submit to a fitness for duty examination, the Court said an employer has a right to such an examination if the medical examination is consistent with business necessity.  The Court said, “. . . Dr. Coursey’s abusive and erratic behavior toward students and staff gave (the University) ample reason to seek further information about his ability to continue performing the essential functions of his employment.”  It added that campus safety is a core concern of any university.  Lastly, the Court found that there was no causal link between his October 2009 EEOC complaint and the University’s initiation of proceedings to terminate him in May 2010 since too much time elapsed between these two events.

This case can be found at Coursey v. University of Maryland Eastern Shore, Civil No. CCB-11-1957 (D. Md. April 30, 2013).

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This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.

Many employers utilize post-offer medical examinations as part of their hiring process to screen out potential employees who cannot perform the essential functions of the job with or without reasonable accommodation. Sometimes, however, the value of a post-offer medical examination does not come to light until long after hiring. (more…)

New Jersey Public Entity Law Monthly – Vol. II, Issue 1

By: John H. Geaney, Esq.

New Jersey is a state with relatively few retaliation law suits arising from workers’ compensation.  For that reason, the decision in Peralta v. Joule Staffing Services, Inc., A-1004-11T3, A-1005-11T3 (App. Div. January 3, 2013) is drawing attention from practitioners.

Ronald Peralta, a native of Peru, worked as a forklift operator for Joule Staffing Services from 2003 to 2007 at 12 different work sites.  On December 5, 2007, he was in a forklift accident at a warehouse owned by a co-defendant Customized Distribution Services, Inc. (hereinafter CDS).  After the accident, one CDS supervisor requested that Peralta fill out an incident report.  That did not occur, plaintiff alleged, because another supervisor said he would take care of this detail.

The failure to fill out an incident report and the failure to undergo post-accident drug testing became an issue.  Plaintiff alleged he had back pain after the work injury and missed his next shift for that reason.  CDS claimed that plaintiff did not even say anything about being injured.  The next day the Operations Manager at CDS advised his assistant to inform Joule not to send Peralta to their site any longer because he failed to comply with post-accident procedures following his accident, including drug testing.

Joule’s Safety Transportation Manager also filled out an incident report on December 7, 2007 stating that Peralta was in an accident but had not been injured; nor did he fill out the post-accident report or submit to drug testing.  Peralta  was thereafter suspended by Joule.  The Branch Manager also advised Peralta to set up a meeting with the Safety Transportation Manager.  At that meeting Peralta asked the Branch Manager if he could make a claim and was told to do it through the Safety Manager, who was not able to make the first meeting.

Peralta tried a second time to meet with the Safety Manager.  When that failed he sought counsel, who contacted Joule on January 7, 2008, requesting treatment.  On January 17, 2008, Peralta filed a workers’ compensation claim and was treated or examined by five doctors.  Eventually he received $5,000 in a workers’ compensation award.

Peralta was medically cleared to return to work commencing January 24, 2008.  However, he never received any further work assignments from Joule.  Thereafter he sued in civil court contending that he was terminated in retaliation for filing a workers’ compensation claim.  He also alleged a violation of the New Jersey Law Against Discrimination.  Joule countered that it did not terminate Peralta’s employment.  Rather, he received no more assignments because of a downturn in the economy.

The trial court granted summary judgment to Joule and Peralta appealed.  First, the Appellate Division held that retaliation claims in workers’ compensation should be analyzed under the “burden shifting” approach of McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, (1973).  The Court said that Peralta must prove that he made a claim for workers’ compensation benefits and was discharged in retaliation for making that claim.  The Court said that under McDonnell Douglas, once Peralta establishes a prima facie case, there is a presumption of retaliation.  The burden then shifts to the employer to rebut the presumption by offering a legitimate reason for its treatment of the employee.  The Court said, “Although the reported cases under the WCA (Workers’ Compensation Act) do not specifically refer to the McDonnell Douglas burden-shifting framework, the logical underpinnings of the WCA’s antidiscrimination provisions make it sensible to apply such an evidential framework to WCA-based retaliation claims.”

 Using this approach, Peralta argued he made out a prima facie case because he was injured, filed a compensation claim, and thereafter never got any more work assignments.  That shifted the evidentiary burden to Joule.  The Court ruled thatJoulesuccessfully rebutted Peralta’s proofs by showing that it had a legitimate, non-discriminatory reason for not sending Peralta more assignments.  The company reduced its business during the recession years and eventually closed thePassaic,New Jerseyoffice where Peralta had worked.

In addition, the mere fact that plaintiff failed to receive more work assignments after his injury at CDS and the filing of his compensation claim does not furnish a sufficient basis to infer that unlawful discrimination or retaliation occurred.  Temporal proximity alone is generally insufficient to support an inference of a causal connection as part of a prima facie case of discrimination, unless the timing at issue is ‘unusually suggestive.’

The Court said that Peralta had not been able to rebut the legitimate reason offered by Joule for not sending Peralta back to CDS or giving him further assignments.  Therefore, the Court affirmed the dismissal of Peralta’s case.

New Jersey Workers’ Comp Blog

Clarice Sanchez worked for the US Forest Service in Lufkin, Texas.  She was injured at work falling down a flight of stairs, causing a homonymous hemianopsia — a condition that limited her to 50 percent of the total visual field in each eye.  She was unable to see objects to the left line of center when focusing ahead.

Sanchez returned to work after seven weeks of recovery.  Thereafter she requested a transfer to the Albuquerque, New Mexico office because there were no specialized doctors in Lufkin who could help her adjust to her injury.  She also had family and friends in Albuquerque who would assist her in dealing with her injury.  In addition, she would have access to public transportation in Albuquerque.

Sanchez struggled with reading as a result of her injury.  She also could not tolerate bright lighting.  She encountered eye strain when she worked on the computer or read for more than 45 minutes.

She was given a 120-day detail in Albuquerque and was able to see a specialist there.  However, Forest Service employees in New Mexico informed the Deputy Regional Forester that Sanchez’s job performance was unsatisfactory and recommended that she not remain in Albuquerque.

Sanchez returned to the Lufkin,Texas office but alleged that her supervisor and co-employees mocked her and said she was “not right in the head.”  As a result, Sanchez took a pay cut to accept an accounting technician position with the Forest Service in Albuquerque. She also filed a law suit under the Rehabilitation Act alleging that she was subjected to a hostile work environment as a result of her disability.  The Rehabilitation Act uses the same legal standards as the Americans with Disabilities Act.

The District Court held that Sanchez failed to prove a covered disability.  She appealed that determination and also contended that the Service should have transferred her to Albuquerque.  The Court of Appeals reversed on the disability issue:  “[W]e conclude that summary judgment was inappropriate. Sanche zprovided a great deal of evidence attesting to the manner in which homonymous hemianopsia limited her ability to see compared to the average person.”  The Court opined that she was challenged in reading and performing basic financial math.  She had to rely on her daughter to fly from Albuquerque to Lufkin every few weeks to help her shop and do other tasks.  The Court observed that plaintiff proved an impairment in seeing, which is a major life activity.

On the transfer issue, the Court said that “a reasonable accommodation may include reassignment to a vacant position if the employee is qualified for the job and it does not impose an undue hardship on the employer.” (citations omitted).  The Court held as follows:  “Considering the case law from this court and others, we conclude that a transfer accommodation for medical care or treatment is not per se unreasonable, even if an employee is able to perform the essential functions of her job without it.”
This case can be found at Sanchez v. Tom Vilsack, Secretary, United States Department of Agriculture, 695 F.3d 1174, (10^th Circuit 2012).

Nada Feldman worked as a middle school teacher for the Charlotte-Mecklenburg Board of Education.  On February 18, 2009, plaintiff’s doctor provided a note to the Board of Education stating that plaintiff “should not be exposed to high concentrations of perfume or chemicals because of a documented condition.”  In a supplemental note, the physician specified that plaintiff should not be exposed to “paint, toxic odoriferous cleaning products, bleach, tar, scented candles, mold in carpet or room and new carpeting and the like.”  Plaintiff also indicated that she had adverse reactions to deodorant, cologne, and hand lotion.

Shortly thereafter plaintiff experienced health problems related to a student who was wearing perfume.  The Board suggested that it would be willing to post a sign in plaintiff’s classroom indicating that she had an allergy to perfume.  However, plaintiff declined this proposal because she said it would violate her privacy rights.

During the summer of 2009, plaintiff moved to a new school on account of under-enrollment at her current school.  On September 9, 2009, plaintiff complained to the Principal that the custodians were using a harsh bleach to clean a bathroom.  Although such bleach was prohibited for use by the Board, the custodians had purchased the bleach themselves. The Principal advised the staff never to use bleach again in the school.

On September 10, 2009, the next day, plaintiff encountered an overwhelming smell of perfume on a student.  Earlier in the day she had kicked a student out of class for smelling of perfume.  The Assistant Principal investigated the perfume exposure and stated that he did not smell any perfume.  The Principal had the student searched to see if she was in possession of perfume, but nothing was found.  He offered medical assistance to plaintiff, who refused the assistance and then left school, never to return.  Plaintiff resigned and brought suit under the ADA for failure to make reasonable accommodations.  She alleged that the school told her to quit and admitted that it could not guarantee a safe environment for her.

Initially, the Court considered whether plaintiff could prove a disability for multiple chemical sensitivity.  In light of the ADA Amendments Act, the Court assumed plaintiff could meet the test given congressional emphasis that whether an impairment substantially limits a major life activity should not demand extensive analysis.  Plaintiff successfully argued that breathing was substantially limited when she was in the presence of perfume, paint, bleach or other chemicals.

Next, the Court considered whether the Board failed to make reasonable accommodations.  The Court was not persuaded that the Board constructively discharged plaintiff or told her to quit.  The Board denied any such direction to plaintiff to quit her job.  In fact, one day before she was allegedly told to quit, the Board had written to her to assure her that it would continue to work to address her ADA concerns.  The Board also offered her administrative leave with pay should she have to miss work for health reasons given that she already had exhausted her sick leave. The Court concluded that plaintiff was not credible in stating she had been instructed to quit.

Most importantly, the Court seemed to suggest that plaintiff’s request for an odor free work environment was not reasonable.  “While Plaintiff has never specified the type of accommodation she believes would have allowed her to perform the job of a public middle school teacher, she seems to demand a complete ban on any chemicals or scented products at any school where she works.  This is plainly an unreasonable request.  A public school could never be free from any objectionable smell or any deodorant, perfume, cologne, hand lotion, or cleaning products.  Nonetheless, Defendant made great efforts to attempt to accommodate Plaintiff’s needs.”

In the end the Court dismissed the law suit holding that plaintiff failed to show that a reasonable accommodation existed that would have allowed her to perform her job as a middle school teacher. This case can be found at Feldman v. Charlotte-Mecklenburg Board of Education, 2012 U.S. Dist. LEXIS 117636 (D.N.C. August 21, 2012).  It is an instructive case because dealing with multiple chemical sensitivity is a challenge for many employers.  In this case the plaintiff was unsuccessful because she could not identify any particular reasonable accommodation which would have allowed her to perform the essential functions of her job.