Although the case ultimately went south for the plaintiff and the Sixth Circuit affirmed a summary judgment, the Sixth Circuit's recent decision in Thompson v. Fresh Products is instructive regarding the proof necessary to at least create a fact issue as to whether a lifting restriction is a disability covered by the Americans With Disabilities Act (ADA).
The plaintiff advanced a number of claims including a disability discrimination claim under the ADA. The district court, Hon. Jack Zouhary of the Northern District of Ohio, ruled that she had failed to establish "that she has a disability because she relied on 'conclusory statements,' did not have any lifting restrictions while at Fresh Products, and continued to work full-time until she was laid off."
The Sixth Circuit disagreed on this point, citing "Thompson's testimony that her arthritis causes her pain and restricts her ability to do heavy lifting, which, in turn, affects her ability to do some jobs. Although she was not doing heavy lifting at Fresh Products, her doctor gave her lifting restrictions at a previous job. The evidence is sufficient to establish a fact dispute regarding whether Thompson has an impairment that substantially limits one or more of her major life activities, and therefore whether she is disabled under the ADA."
There's two elements here: (1) testimony by the individual as to the condition's tangible limiting and painful effects; and, (2) some medical history documenting the problem. It is not required that the condition come into play in the course of the individual's job.
Circuit Judges Danny Boggs and Ralph Guy, as would be expected, joined to affirm the summary judgment on Thompson's disability discrimination claim; Judge Helene White dissented and would have reversed on this claim.
Robert L. Abell
www.RobertAbellLaw.com
Americans With Disabiliites Act
January 23, 2021
Proving a Lifting Restriction is a Disability Covered by the ADA
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March 09, 2020
Constructive Discharge Doctrine in the Sixth Circuit
In an opinion straining at the bit to express hostility toward the Americans With Disabilities Act (ADA) as mildly as possible, the Sixth Circuit suggested that it is ready to re-examine its subjective intent requirement in constructive discharge cases. The case is Tchankpa v. Ascena Retail Group.
As to the first point, the opinion authored by Judge John Nalbandian takes pains to assure readers and possible litigants that it brooks no favor to the ADA or to employees suffering discrimination as a general matter, here's a sampling:
- The ADA is not a weapon that employees can wield to pressure employers into granting unnecessary accommodations or reconfiguring their business operations. Instead, it protects disabled employees from disability -related mistreatment – no more, no less.
- As Milton put it, “The mind is its own place, and in itself/ Can make a Heav’n of Hell, a Hell of Heav’n.” Our job is to confirm that the plaintiff’s work conditions were indeed hellish, or at least close to it.
Sixth Circuit law on constructive discharge is straight-forward. The existence of a constructive discharge “depends upon the facts of each case and requires an inquiry into the intent of the employer and the reasonably foreseeable impact of the employer's conduct upon the employee.” Smith v. Henderson, 376 F.3d 529, 533 (6th Cir. 2004). An employer's intent can be shown “by demonstrating that quitting was a foreseeable consequence of the employer's actions.” Moore v. KUKA Welding Sys. & Robot Corp., 171 F.3d 1073, 1080 (6th Cir. 1999). This Court has stated that the ultimate question in a constructive discharge case is whether a reasonable person would have continued working in the job given the terms and conditions intentionally established by the employer. Easter v. Jeep Corp., 750 F.2d 520, 522-23 (6th Cir. 1984).
The opinion suggests that the Supreme Court may have upended the employer's intent element of this proof in Green v. Brennan, 136 S.Ct. 1769 (2016). This seems a red herring and betrays a poor grasp of this area of law. If an employer knows or should know that it is compelling an employee to work in conditions in which a reasonable person would not continue working, it is fair to conclude that the intended the employee to quit. If the employer did not know of the condition or situation, it would seem incongruous that it should be held liable to something it knew nothing about. The Sixth Circuit's discussion of Green just goes off on a tangent to no discernible purpose. More troubling is the suggestion that a constructive discharge may require "hellish" work conditions, as opposed to that merely a reasonable person would find intolerable.
We should also note that the ADA does require in appropriate circumstances employers to adapt and change their operations to accommodate a disabled employee; see Does the ADA Require an Employer to Rethink its Processes?
Robert L. Abell
www.RobertAbellLaw.com
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November 01, 2018
Disability Discrimination Claim May Be Pursued under Equal Protection Clause, Sixth Circuit Rules
A claim founded on disability discrimination may be pursued as a denial of equal protection of the law and pleaded under 42 U.S.C. § 1983 the Sixth Circuit ruled recently in Bullington v. Bedford County, Tennessee.
Kaleena Bullington worked for the county sheriff's department as a dispatcher for over 8 years but fell ill with Hodgkin's Lymphoma and the necessary chemotherapy had some debilitating side effects. She claimed that the county discriminated against her based on the disabilities caused by the cancer and related treatment.
Bullington pleaded a claim of disability discrimination under the Americans With Disabilities Act (ADA); she also pleaded that disability discrimination denied her equal protection of the laws guaranteed by the Fourteenth Amendment and made this claim under 42 U.S.C. § 1983.
The Sixth Circuit held that Bullington "may assert an Equal Protection claim for disability discrimination under § 1983."
Judge Moore authored the Sixth Circuit's opinion and was joined by Judge Clay. Judge Kethledge, a recent contender for a Supreme Court appointment, concurred stating that "nothing in the text or structure of the ADA supports preclusion of a parallel constitutional claim. ... reason enough to hold that such a claim is not precluded."
Understand that Bullington's Equal Protection claim for disability discrimination is an alternative to one made under the ADA but is not a good alternative for at least two reasons: (1) she would have to show that "there was no rational basis for the state action that treated her differently because of her disability," a proof requirement akin to showing that disability discrimination was the sole factor in the differential treatment as opposed to a substantial factor; and, (2) the state's duty to accommodate a disability under the Equal Protection clause is likely lesser than under the ADA.
Robert L. Abell
www.RobertAbellLaw.com
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August 21, 2018
Is Proof of Discriminatory Animus Necessary for a Disability Discrimination Claim?
Does a plaintiff have to prove that an employer had a particular animus toward employees with disabilities to sustain a disability discrimination claim? "No" answered the Sixth Circuit in EEOC v Dolgencorp LLC. We discussed this case in an earlier post, Failure to Provide a Reasonable Accomodation is Direct Evidence of Disability Discrimination.
The company, Dollar General, fired Linda Atkins after it refused to consider her request for a reasonable accommodation -- keeping some orange juice near her work station to ward off any hypoglycemic emergency caused by her diabetes. A jury awarded Atkins $27,565 in back pay and $250,000 in compensatory damages.
One argument raised on appeal by Dollar General was that the verdict erred and "that the verdict cannot stand because Atkins never produced evidence of animus towards the disabled." This went nowhere:
the [Americans With Disabilities] Act speaks in terms of causation, not animus. An employer violates the ADA whenever it discharges an employee "on the basis of disability" (a necessary requirement for liability), not only when it harbors ill will (a sufficient way of establishing liability). Imagine a company that fired a visually impaired employee to save itself the minimal expense of buying special software for her. Without more, that would constitute termination "on the basis of disability," even if all of the evidence showed that cost-savings, not animus towards the blind, motivated the company.
For additional discussion of this case: Denial of a Reasonable Accommodation of a Disability is Disability Discrimination.
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August 20, 2018
Failure to Provide a Reasonable Accomodation is Direct Evidence of Disability Discrimination
Once an employee with a disability covered by the Americans With Disabilities Act (ADA) requests a reasonable accommodation for that disability the employer has a duty to explore the nature of the employee's limitations, if and how those limitations affected his or her work, and determine what types of accommodations could be made. The employer and employee have a duty to in good faith discuss what sort of reasonable situation -- one that addresses fairly the problem(s) caused by the employee's disability -- can be worked out. An illustration of this process and the consequences for an employer that ignores this duty is found in the recent Sixth Circuit decision, EEOC v. Dolgencorp LLC.
Linda Atkins, the employee, was diabetic, and she'd had some hypoglycemic episodes that had twice caused her hospitalization. She was also a good employee for Dolgencorp LLC, which we know as Dollar General store. Atkins had found orange juice was an effective response to ward off a hypoglycemic event - it acted quickly and was easy to measure. She adopted the practice of keeping some orange juice in a personal cooler in the store's breakroom.
Atkins was sometimes obliged to work alone in the store. In these instances and where there were customers in the store, Atkins could not retreat to the breakroom and drink orange juice when he felt a hypoglycemic episode coming on. She asked her store manager if she could keep some orange juice at the register at the front of the store and was told that company policy forbade it.
So Atkins was stuck between a rock and a hard place: she couldn't go back to the breakroom and get to her orange juice, and the employer had said she couldn't keep the orange juice near her work station at the front of the store. Put in ADA terms, Atkins had requested a reasonable accommodation for her disability -- that she keep some orange juice accessible at the front of the store to ward off any hypoglycemic event and the employer had refused, citing policy.
Dollar General having refused a reasonable accommodation, Atkins was twice forced -- in instances where she sensed the onset of a hypoglycemic event -- to take and drink a bottle of orange juice from the store cooler, paying for it in full afterward. She reported these instances to her store manager.
A "shrinkage" investigation triggered Atkins' firing. Investigators interviewed Atkins, and she volunteered to them the two instances where she had taken, consumed and then paid for the orange juice in emergency situations. But these investigators could only see things in one way: they concluded Atkins had violated Dollar General's "grazing policy," which forbids employees from consuming merchandise in the store before paying for it, and so they fired Atkins.
A jury found for Atkins and awarded her $27,565 in back pay and $250,000 in compensatory damages. Dollar General appealed.
Dollar General's principal argument on appeal was that "it had a legitimate, nondiscriminatory reason for firing Atkins, namely the company anti-grazing policy." The argument amounts to this: we had a policy that applied to everyone and any employee that violated it would be fired, regardless of whether they had a disability or not; hence, it follows, Atkins' disability was not a factor in her firing. Nonsense, the Sixth Circuit concluded, and explained as follows:
But a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing him. Imagine a school that lacked an elevator to accommodate a teacher with mobility problems. It could not refuse to assign him classrooms on the first floor, then turn around and fire him for being late to class after he took too long to climb the stairs between periods. In the same way, Atkins never would had had a reason to buy the store's orange juice during a medical emergency if Dollar General had allowed her to keep her own orange juice at the register or worked with her to find another solution.
A defendant may use a legitimate, nondiscriminatory rationale as a shield against indirect or circumstantial evidence of discrimination. But a neutral policy if of no moment when an employee presents direct evidence of discrimination. And failing to provide a protected employee a reasonable accommodation constitutes direct evidence of discrimination. Hence "failure to consider the possibility of reasonable accommodation for known disabilities, if it leads to discharge for performance inadequacies resulting from the disabilities, amounts to a discharge solely because of the disabilities.
The bottom line: Denial of a Reasonable Accommodation of a Disability is Disability Discrimination.
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April 22, 2016
Can an Employer Accused of Discrimination Limit Discovery Simply by Restricting During Litigation Its Stated Reasons for an Adverse Action?
No; this is not the law.
The Seventh Circuit's decision in Brunker v. Schwan's Home Service, Inc., 483 F3d 1004 (7th Cir. 2009) shows why.
The plaintiff, Brunker, was a route manager for Schwan's, a home-delivery food service. Brunker began experiencing medical problems, which led to a diagnosis of multiple sclerosis, and was fired for alleged "unsatisfactory performance" and being "unable to perform essential job functions." He brought claims under the Americans With Disabilities Act (ADA) for disability discrimination and failure to accommodate.
Brunker sought production of the personnel files of other route managers who had been accused of performance deficiencies similar or like his own. Schwan's opposed these efforts and stated that it "would rely only on Brunker's failure to service customers as the reason it fired him," a position rendering, it claimed, irrelevant any other discipline that Brunker and/or his co-workers received. A magistrate judge accepted the employer's position and with prejudice, imposing $4,423 in sanctions on Brunker for seeking the discovery. The Seventh Circuit reversed not only the denial of discovery and the sanctions order explaining:
An employer accused of discrimination cannot limit discovery simply by restricting during litigation its stated reasons for an adverse action. After all, the true reason behind the action is the very heart of the case, and Brunker presented evidence that Schwan's may have asserted reasons for firing him other than the one it relied on during litigation. An employer's shifting explanations are evidence that its stated reasons did not truly motivate the adverse action and that an impermissible one actually did.
The Court's analysis brings to mind the Sixth Circuit's in its case, Bobo v. UPS, discussed at Similarly-Situated In All Relevant Respects; The Sixth Circuit Reverses Based on the District Court's Limiting Plaintiff's Discovery.
Robert L. Abell
www.RobertAbellLaw.com
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September 18, 2015
Can A Constructive Discharge Claim Establish An Adverse Employment Action? The Sixth Circuit Again Answers Yes
The Sixth Circuit again confronted this question recently in Hurtt v International Services, Inc, where it made a sweeping reversal of the summary judgment granted the employer by the district judge, Hon. Denise Page Hood. The Sixth Circuit observed:
In obvious contradiction to Sixth Circuit precedent, the district court improperly held that "a plaintiff cannot use a claim of constructive discharge to establish an adverse employment action."
...
this Court has repeatedly held to the contrary. See Talley v. Family Dollar Stores, Inc, 542 F3d 1099, 1109-10 (6th Cir 2008)(reversing summary judgment on plaintiff's ADA constructive discharge claim); Saroli v Automation & Modular Components, Inc, 405 F3d 446, 451 (6th Cir 2005)(recognizing plaintiff's claim of a constructive discharge as an adverse employment action); Smith v Henderson, 376 F3d 529, 533 (6th Cir 2004)(analyzing whether plaintiff suffered an adverse employment action via her claim of a constructive discharge); Logan v Denny's Inc, 259 F3d 558, 568 (6th Cir 2001)("Plaintiff may establish an adverse employment action by demonstrating that she was constructively discharged."). Thus, although already well established, we hold once more today that a plaintiff may use a constructive discharge claim to show that he or she was suffered an adverse employment action.
The Sixth Circuit reversed in Hurtt summary judgment on claims under the ADA, the FMLA and Michigan's Persons with Disabilities Civil Rights Act.
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September 13, 2015
Witness Changed Her Testimony Because "She Wanted Her Testimony to Reflect the Correct Answer" District Judge Explains
Can a district judge, while considering a motion for summary judgment, provide an explanation and/or rationale for the changing testimony of one of the defendant's managing agents? Well, actually, that's not the question, because the answer is known to be yes. The real qusetion is can they do it and always get away with it? The answer is "no" it appears from the Fifth Circuit's recent opinion in Burton v. Freescale Semiconductor.
Burton was a disability discrimination and retaliation case. The employer was granted summary judgment by District Judge David A. Ezra of the Western District of Texas. Judge Ezra was particularly solicitous of the employer's management, going so far as to offer on his own a rationale and explanation for the changing testimony of one of the employer's management personnel.
Here's what happened: Bruce Akroyd, the employer's decision-maker, explained that he elected in part to terminate Burton because Burton's supervisor, Patricia Alvarez, had told him that Burton had used the Internet at work without authorization. So, naturally, Alvarez was asked at her deposition about what she had told Akroyd about Burton's Internet use. The Fifth Circuit summarized her deposition testimony as follows:
Alvarez, however, testified she never talked to Akroyd about Burton's performance. She also testified she did not know who made the recommendation to terminate Burton and did not participate in any conversation about terminating Burton's assignment. Following a break in the deposition, Alvarez then changed her testimony to say she in fact recommended Burton's termination -- but that she believed she did so "slightly before" the ... Internet incident, and it was not to Akroyd at all but rather to one "Shawn Stroud," her "section manager."
So, after a break in her deposition during which time Alvarez' had an epiphany, was counseled by defense counsel as to the unhelpfulness of her testimony or something else perhaps happened, the employer's agent came up with something very different and much more helpful to the employer.
Supposedly the whys and wherefores in such changes to a witness's testimony are for a jury to figure out. Too often, though, trial court judges take the task upon themself, as did U.S. District Judge David A. Ezra in this case as the Fifth Circuit explained:
The district court [leapt to the defense of the company's witnesses], reasoning that "a person cannot be expected to be able to recall every single detail from two-and-one-half years prior" and rejecting Burton's "attempts to pick apart each person's deposition testimony line by line." Similarly, the district court reconciled Alvarez's changing testimony by concluding that she changed it because "she wanted her testimony to reflect the correct answer."
Perhaps doubly disappointing is that Judge Ezra, while supplying the company with what he regarded as a winning explanation, did not bother or see the need to characterize Alvarez's evolving testimony as reaching ultimately the true answer, as opposed to the merely correct. Perhaps Judge Ezra had read Stanley Fish's blog posting for the New York Times a while back, The True Answer and the Right Answer, and was taken particularly by this observation by Mr. Fish: "The right answer is the answer a system invested in its own machinery will recognize no matter what the true facts may be." Judge Ezra invested as he appeared to be granted summary judgment to Freescale.
That, however, was the most basic of errors as the Fifth Circuit explained in reversing Judge Ezra:
This approach is inconsistent with fundamental rules governing summary judgment. By choosing which testimony to credit and which to discard, "the court improperly weighed the evidence and resolved disputed issues in favor of the nonmoving party.
Judge Ezra was appointed to the U.S. District Court in 1988 by President Reagan. He surely knows better than this. Any yet found himself so invested in the summary judgment machinery to which the U.S. district courts have devolved that he could not wait for resolution of the true facts.For a further discussion on the decline of the nation's federal district courts: Arthur Miller, Simplified Pleading, Meaningful Days in Court and Trials on the Merits: The Deformation of Federal Civil Procedure in the New York University Law Review.
Robert L. Abell
www.RobertAbellLaw.com
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December 12, 2014
What Is the Individualized Inquiry Required by the ADA?
The ADA mandates an individualized inquiry to determine whether an applicant's or employee's disability or other condition disqualifies him or her from a particular position. But what exactly does this mean? According to the Sixth Circuit, it requires consideration of at least the following:
- the applicant's or employee's personal characteristics
- the applicant's or employee's actual medical condition; and,
- the effect, if any, the condition may have on his or her ability to perform the job in question.
The point of this being of course to serve and advance the ADA's underlying objectives:
people with disabilities ought to be judged on the basis of their abilities, ... [not] discriminated against based on unfounded fear, prejudice, ignorance or mythologies.
In other words, a fair chance to rise (or not) based on one's actual abilities. The Sixth Circuit, in an opinion authored by Judge Richard Griffin (surprisingly) and joined by Judge Jeffrey Sutton and Judge Helene White (unsurprising as to her), does an excellent analysis and discussion of these points in its decision in Keith v. City of Oakland.
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April 29, 2014
ADA: How To Tell Whether a Job Function Is Essential
To be covered or protected by the Americans With Disabilities Act (ADA) an applicant or employee must be a "qualified individual" which means that they can "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." But how do you tell what is an essential function and who gets to decide? The Eleventh Circuit's recent decision in Samson v. Federal Expresss, No 12-14145 (March 26, 2014), provides some helpful guidance.
Richard Samson, a Type-1 insulin-dependent diabetic, applied for a position as a mechanic at Fed Ex's facility in Ft. Myers, Florida. Samson was offered the job contingent upon passing a DOT medical exam, which he failed subsequently because of his diabetes. Fed Ex claimed that the Federal Motor Carrier Safety Regulations (FMCSRs) required it rescind Samson's job offer, since the job purportedly required DOT certification because Samson would be test-driving vehicles on which he had worked. Samson sued Fed Ex for disability discrimination violating the ADA.
The ADA makes it unlawful for an employer to use "qualification standards ... that screen out or tend to screen out an individual with a disability .. unless the standard .. is shown to be job-related for the position in question and is consistent with business necessity." The crux of Samson's claim was there was no real need or legitimate business necessity for Fed Ex demanding he pass the DOT physical; after all, Samson was going to work only as a mechanic, not as a truck driver. Nevertheless, the district court granted a summary judgment to Fed Ex.
The Eleventh Circuit reversed. With regard to the criteria as to whether a particular job function is "essential" the following were identified:
- the employer's judgment although this is not conclusive
- any written job description prepared at the start of the hiring process
- the amount of time spent on the job performing the function
- the past work experience of employees that did the job; and,
- the current work experience of employees in similar jobs.
What tipped the analysis in Samson's favor was how little time each work year Fed Ex's mechanics spent test-driving vehicles: Fed Ex mechanics in Florida spent an average of 3.71 hours per year actually test-driving a vehicle; and, the candidate hired instead of Samson had only test-driven a vehicle three times in the three years he'd been working for it. So the point was basic: "If test-driving were such an essential funcaiton, as Fed Ex contends, one would expect it to be performed with regularity." This insignificant work time, the court concluded, made it reasonable for a jury to find that test-driving vehicles was not an essential function of a mechanic's job for Fed Ex.
The Sixth Circuit recognizes that whether a task is an "essential job function" is one for the jury to decide: "Whether a job function is essential is a question of fact that is typically not suitable for resolution on a motion for summary judgment." Keith v City of Oakland, 703 F3d 918, 926 (6th Cir. 2013).
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