EEOC: ADA Case Law Update

Joyce Walker-JonesSenior Attorney AdvisorOffice of Legal Counsel

September 2014

A summary of Title I cases decided in 2013-2014 under the Americans with Disabilities Act Amendments Act (ADAAA).

A. Definition of “Disability”

1. Actual Disability

a. Anxiety

Huiner v. Arlington Sch. Dist., 2013 WL 5424962 (D.S.D. Sept. 23, 2013). The plaintiff, an art teacher, alleged that she was discriminated against based on her anxiety and panic attacks when the school district failed to accommodate her. According to the plaintiff’s testimony and medical records, her anxiety limited her ability to “maintain her nutritional needs” (which had resulted in a 30-pound weight loss in eight months), care for her children, and sleep. Based on this evidence, the court concluded that the plaintiff had presented sufficient facts to make a prima facie showing that her anxiety constituted a disability under the ADA.

b. Asthma/Respiratory Conditions

Lopez-Cruz v. Instituto de Gastroenterologia, 960 F. Supp. 2d 367 (D.P.R. 2013). The plaintiff, a nurse, alleged that she was terminated because of her respiratory problems, a condition for which she took medication and needed regular checkups, when she asked to be excused from having to clean medical equipment using Cidex, a disinfectant. The court held that the plaintiff plausibly pled that her breathing was substantially limited by stating that the disinfectant affected her respiratory tract and caused “extreme coughing and difficulty breathing,” which was so bad on one occasion that she went to the emergency room.

c. Autism

Glaser v. Gap Inc., 2014 WL 349718 (S.D.N.Y. Jan. 31, 2014). The plaintiff, who had worked as a merchandise handler at a distribution center for more than seven years, alleged that the defendant violated the ADA when it subjected him to a hostile work environment, failed to accommodate him, and terminated him for alleged misconduct. Although the defendant contended that the plaintiff’s autism did not substantially limit his ability to “interact with others,” the court held that, under the ADAAA, the term “substantially limits” is not meant to be a demanding standard. EEOC regulations enumerate impairments, including autism, that “will, at a minimum, substantially limit the major life activities indicated.” The regulations state that autism “substantially limits brain functions” and also might limit other major life activities not explicitly identified. Relying on evidence that the plaintiff frequently had been advised not to distract his coworkers, not to put his arm around his supervisor or touch her when speaking to her, and to stand further apart from others when talking, the court held that the defendant could not “seriously argue” that the plaintiff’s ability to interact with others was not impaired.

d. Back/Leg/Knee Impairments

Summers v. Altarum Inst. Corp., 740 F.3d 325 (4th Cir. 2014). The plaintiff, a senior analyst for a government contractor, fell and fractured his left leg, tore a tendon in his left knee, fractured his right ankle, and ruptured a tendon in his right leg. Following two surgeries, the plaintiff’s

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doctors restricted him from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for at least seven months. After a period of short-term disability, the plaintiff asked to work from home but, instead, was terminated. The district court granted the employer’s motion to dismiss the plaintiff’s ADA discriminatory discharge claim, concluding that the impairment was too temporary to be a disability. Reversing, the Fourth Circuit gave Chevron deference to EEOC’s amended ADA regulations, which state that “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting,” 29 C.F.R. §1630.2(j)(1)(ix). The court also noted that, according to the accompanying appendix, “the duration of an impairment is one factor that is relevant” and “[i]mpairments that last only for a short period of time are typically not covered, [but] may be covered ‘if sufficiently severe.’” Citing an appendix example (“[I]f an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in lifting….”), the court reasoned: “If, as the EEOC has concluded, a person who cannot lift more than twenty pounds for ‘several months’ is sufficiently impaired to be disabled within the meaning of the amended Act, then surely a person whose broken legs and injured tendons render him completely immobile for more than seven months is also disabled.” The appeals court also noted that the district court’s holding that a “temporary injury” cannot be a disability erroneously relied on pre-ADAAA case law.

Mazzeo v. Color Resolutions Int’l, L.L.C., 746 F.3d 1264 (11th Cir. 2014). The plaintiff, who provided technical and sales services to customers, was diagnosed with a herniated disc and torn ligaments in his back that caused pain in his lower back and down his leg and that intermittently affected his ability to walk, sit, stand, bend, run, or lift objects weighing more than ten pounds. Shortly after informing his employer that he was scheduled to have back surgery, he was terminated. The district court granted the employer’s motion to dismiss the plaintiff’s ADA discriminatory discharge claim, reasoning that his doctor’s affidavit was insufficient and conclusory. Reversing, the Eleventh Circuit found that because the plaintiff’s doctor explained that the plaintiff’s back problems stemmed from “nerve root involvement caus[ing] radicular symptoms” and indicated that his limitations were “substantial . . . and permanent,” the affidavit presented sufficient evidence, in light of the new standards under the ADAAA, to show that the plaintiff’s herniated disc substantially limited a major life activity.

McFadden v. Biomedical Sys. Corp., 29 A.D. Cas. (BNA) 737, 2014 WL 80717 (E.D. Pa. Jan. 9, 2014). The plaintiff, a director of business development, alleged that his former employer refused his request for sick leave to have back surgery for his herniated discs and retaliated by terminating him. In its motion for summary judgment, the defendant argued that the plaintiff’s allegation that his back condition sometimes caused him pain and limited his ability to walk, stand, or sit for long periods of time was insufficient to establish a significant restriction on a major life activity. Disagreeing, the court held that, given the “ADAAA’s liberalized standards,” the plaintiff’s allegation that he had an impairment that was disabling was sufficient to overcome a motion to dismiss.

Rocco v. Gordon Food Serv., 29 A.D. Cas. (BNA) 888, 2014 WL 546726 (W.D. Pa. Feb. 10, 2014). The plaintiff, a delivery driver, alleged that he was denied a reasonable accommodation and terminated based on his knee injury, which initially caused pain requiring prescription medication and limited his ability to walk or lift. The court held that because the plaintiff’s

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alleged limitations, including his inability to concentrate or sleep (caused by the pain medication), had resolved by the time of the alleged adverse employment decision, he failed to establish that he had a disability.

e. Blood Disorders

Johnson v. City of Chicago Health Dep’t, 549 F. App’x 579 (7th Cir. 2014). A former health aide alleged that she was denied a reasonable accommodation and terminated because of her sickle cell anemia, which, at times, substantially limited her ability to walk or bend. Reversing dismissal of the plaintiff’s complaint, the Seventh Circuit held that the district court erred in finding that the plaintiff failed to show that her walking (or any other major life activity) was substantially impaired. Noting that the plaintiff submitted a form from her treating physician to support her request for reasonable accommodation, indicating that she “needed a walker and would have ‘gait instability’ for six to nine months,” the court held that a reasonable jury could conclude that the plaintiff was substantially limited in walking.

f. Breast Infection

McKenzie-Nevolas v. Deaconess Holdings L.L.C., 29 A.D. Cas. (BNA) 366, 2014 WL 518086 (W.D. Okla. Feb. 7, 2014). The plaintiff, a former medical assistant, alleged that she was terminated based on recurrent cellulitis/infectious mastitis of her left breast (inflammation of the soft tissue), which caused redness, pain, and sometimes fever. Noting that no abscess was found in the plaintiff’s breast, that she never required drainage of her breast or a breast biopsy, that the limited infection of her breast was temporary and of short duration and did not spread to other parts of her body, and that her doctors never placed her on any restrictions or limitations, including lifting, the court concluded that she failed to establish that she had an impairment that substantially limited one or more of her major life activities.

g. Cancer/Abnormal Cell Growth

No new cases added.

h. Carpal Tunnel

No new cases added.

i. Depression

Palacios v. Continental Airlines, Inc., 27 A.D. Cas. (BNA) 860, 2013 WL 499866 (S.D. Tex. Feb. 11, 2013). The plaintiff, who received medical treatment and medication for depression over a period of years, testified that his condition affected his ability to sleep or eat, that sometimes he slept too much (one time for almost two days) and other times he could not sleep, that sometimes he did not eat, and that sometimes he just sat in his living room and did nothing. He also testified that prior to taking FMLA leave, he chose to allow others to work many of his hours, which company policy allowed, and that due to his depression he did not really care about potentially losing his house or making car payments or paying other accounts. The court held

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that the self-described severity of the plaintiff’s depression and its adverse effects on his desire to work and on his sleeping, eating, and attention to ordinary care of himself, which was supported by medical evidence, was sufficient under the more lenient standard of the ADAAA to raise a factual issue that he had a disability under the ADA.

j. Diabetes

Willoughby v. Connecticut Container Corp., 29 A.D. Cas. (BNA) 94, 2013 WL 6198210 (D. Conn. Nov. 27, 2013). After experiencing symptoms of “loss of vision, sweating, vertigo, loss of focus[,] and inability to stand,” the plaintiff was diagnosed with Type II diabetes and high blood pressure. Five months after his diagnosis, the plaintiff experienced an episode of low blood sugar and dehydration at work, which caused him to pass out. Despite evidence that the incident likely was diabetes-related, he was terminated allegedly for sleeping on the job. Applying the ADAAA’s broadened definitions of disability and major life activity, the court held that because the plaintiff experienced “symptoms due to diabetes [e.g., fluctuating blood sugar, dehydration, difficulty standing, dizziness, and faintness], which is by definition a disease which impacts the functioning of the endocrine system,” a jury easily could find that he had an impairment that substantially limited one or more of his major life activities. The court also pointed out that EEOC regulations, 29 C.F.R. § 1630.2(j)(3)(iii), note that “diabetes substantially limits endocrine function” and, therefore, it “should easily be concluded that [diabetes] will, at a minimum, substantially limit” a major life activity.

Kinchion v. Cessna Aircraft Co., 2013 WL 66077 (D. Kan. Jan. 4, 2013). The plaintiff, a small-parts finish painter, had a number of health problems during the 15 years he worked for the defendant. In his complaint alleging that he was terminated in violation of the ADA, he mentioned only that he had been diagnosed with diabetes and other conditions. Granting the employer’s motion to dismiss the complaint, with leave for the plaintiff to amend, the court held that the mere mention of diabetes with nothing more was insufficient to plead disability and that the defendant should not have to guess at the basis for the claim of disability discrimination. Although the EEOC’s regulations state that certain impairments such as diabetes will in virtually all cases result in coverage under the ADAAA, merely parroting the regulation without any supporting facts was insufficient.

Szarawara v. County of Montgomery. 2013 WL 3230691 (E.D. Pa. June 27, 2013). A telecommunicator with Type II diabetes who worked nights for an emergency dispatch services center resigned after the defendant refused to change his hours or move him to part-time status or a dayshift position. The court held that because the EEOC has advised that diabetes “will, as a factual matter, virtually always be found to impose a substantial limitation” on the endocrine function, the defendant’s reliance on pre-ADAAA cases and EEOC’s prior regulations was inapplicable.

k. Flu

No new cases added.

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l. Hypertension

Gogos v. AMS Mech. Sys., Inc . , 737 F.3d 1170 (7th Cir. 2013). The plaintiff, a welder and pipefitter, alleged that he was terminated in violation of the ADA when he sought leave for medical treatment of his high blood pressure which “spiked to ‘very high’” and caused intermittent vision loss, sometimes for a few minutes at a time. Reversing dismissal of the plaintiff’s complaint, the court held that the plaintiff’s alleged episode of blood-pressure spike and vision loss was sufficient to plead disability under the ADAAA, citing 42 U.S.C. § 12102(4)(D) (“impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active”) and noted that the amended EEOC regulations list hypertension as an example of an impairment that may be episodic. The court concluded that “the relevant issue is whether, despite their short duration in this case, Gogos’s higher-than-usual blood pressure and vision loss substantially [limited] a major life activity when they occurred.” The court also held that the plaintiff’s chronic high blood pressure, for which he took medication, could be a disability that substantially limited his cardiovascular and circulatory functions on an ongoing basis. In this regard, the court referred to the rule of construction in the ADAAA that the determination of whether an impairment substantially limits a major life activity is to be made without reference to mitigating measures, such as medications. Thus, even if the plaintiff had not experienced the episode of elevated blood pressure and vision loss, his chronic hypertension could constitute a disability.

m. HIV Infection

Lundy v. Phillips Staffing, 29 A.D. Cas. (BNA) 685, 2014 WL 811544 (D.S.C. Mar. 3, 2014). The plaintiff alleged that the defendant fired him after learning that he had HIV. The court noted that although the Fourth Circuit had not definitively held that asymptomatic HIV is a per se disability, the plaintiff showed that he had HIV, “which is a physical impairment that has a ‘constant and detrimental effect on the infected person’s hemic and lymphatic systems.’” Further noting that the “[t]he lymph nodes, where the virus is most prevalent during the asymptomatic phase, play a key role in the body’s immune response system, a major life activity under the ADAAA,” the court concluded that the plaintiff had a physical impairment that substantially limited one or more major life activities.

n. Intellectual Disabilities

No new cases added.

o. Kidney Disease

No new cases added.

p. Migraine Headaches

Freelain v. Village of Oak Park, 29 A.D. Cas. (BNA) 927, 2014 WL 148739 (N.D. Ill. Jan. 15, 2014). The plaintiff, a police detective, alleged that he was denied leave under the FMLA, sexually harassed, discriminated against on the basis of disability (anxiety that resulted in

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headaches, fatigue, and migraines), and retaliated against in violation of the ADA. The court held that, even if the plaintiff had the impairments he alleged, merely having a “medically identifiable impairment” is not enough to establish a disability under the ADA. “[T]he focus is on whether the impairments substantially limit a major life activity, not whether an impairment has a name.” Referring to a decision that relied on pre-ADAAA case law, even though the alleged discrimination in this case occurred after the effective date of the ADAAA, the court also stated that short-term, temporary restrictions, with little or no long-term impact, generally are not substantially limiting and do not render a person disabled for purposes of the ADA.

q. Multiple Sclerosis

Feldman v. Law Enforcement Assocs. Corp. , 955 F. Supp. 2d 528 (E.D.N.C. 2013), aff’d on other grounds, 2014 WL 1876546 (4th Cir. May 12, 2014). The plaintiffs, one with a history of multiple sclerosis (MS) and another who had been hospitalized overnight and off work for several weeks because of a transient ischemic attack (TIA or “mini stroke”), alleged that they were fired because of their disabilities. Because the defendant conceded that MS is a disability even when in remission and the plaintiff explained that he experienced significant fatigue and weakness, had trouble walking, and could not drive a car when his MS flared up, the court found that the plaintiff established that he had a disability. With respect to whether TIA is a disability, the court held that, even if it is an impairment that is episodic or in remission, the plaintiff offered no evidence beyond his overnight visit to the hospital to show that it substantially impaired the major life activity of working or any other major life activity. In particular, the court noted that the evidence showed that all of the plaintiff’s diagnostic testing at the hospital was normal and that he was discharged the next day with no restrictions.

r. Post Traumatic Stress Disorder (PTSD)

Beair v. Summit Polymers, 28 A.D. Cas. (BNA) 640, 2013 WL 4099196 (E.D. Ky. Aug. 13, 2013). A former production operator who had assembled automobile parts alleged that her employer failed to accommodate her disability, retaliated against her, and terminated her based on her major depressive disorder and post traumatic stress disorder. The court noted that EEOC “regulations provide that the ‘individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage’” and “that, with certain specified impairments, ‘it should be easily concluded that [the impairments] . . . substantially limit the major life activities indicated.’” In particular, the regulations state that it should be easy to conclude that “major depressive disorder . . . [and] post-traumatic stress disorder . . . substantially limit brain function.” Because the plaintiff submitted evidence that she was diagnosed with major depressive disorder and PTSD and the defendant presented no reason why, in this case, those conditions did not actually limit her brain function, she presented sufficient evidence that she had a disability.

s. Obesity

Powell v. Gentiva Health Servs., Inc., 2014 WL 554155 (S.D. Ala. Feb. 12, 2014). A former account executive, whose job duties were to make 10 to 12 sales calls per day to market the defendant’s hospice services, alleged that she was terminated based on her morbid obesity.

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Citing to pre-ADAAA cases (but acknowledging that the ADAAA governs), the court noted that a plaintiff’s status as being overweight, without more, had been held not to constitute a disability; rather, the question turns on an individualized inquiry about the specific condition and its limitations. Relying on the plaintiff’s testimony that (despite being 5’3” and weighing 230 pounds) her weight did not interfere with her ability to do her job; impair her ability to care for herself, engage in day-to-day activities, or walk; or cause any health conditions, the court held that no reasonable factfinder could conclude that her obesity substantially limited one or more of her major life activities so as to render her disabled.

Anderson v. Macy’s, Inc., 943 F. Supp. 2d 531 (W.D. Pa. 2013). In a suit brought under Title III of the ADA, the plaintiff alleged that the defendant retail store discriminated against her based on her obesity by selling plus-size clothing at higher prices and “segregating” such clothing from smaller sizes. The court noted that although the Third Circuit had yet to decide if obesity is a disability under the ADA, other courts had held that it may be a disability under the ADAAA. Considering decisions both before and after the ADAAA, in conjunction with Congress’s intent to broaden the scope of the definition of disability, the court concluded that it could not “definitionally exclude obesity when caused by an underlying physiological condition as a disability under the ADA,” especially since the plaintiff specifically alleged that her obesity was caused by a thyroid disorder and other medical conditions. In reaching this conclusion, the court stated that it was unnecessary to decide if obesity or morbid obesity, without an underlying physiological disorder, is also a disability under the ADAAA.

t. Pregnancy-Related Complications

Wonasue v. University of Maryland Alumini Assn., 2013 WL 6158375 (D. Md. Nov. 22, 2013).While pregnancy-related complications may rise to the level of an ADA disability, plaintiff's single instance of more severe than typical morning sickness did not because there were no subsequent medical restrictions. Thus, the employer was not required to provide leave or schedule changes as reasonable accommodations. Other complications that arose after she resigned were irrelevant to the question of whether there was disability discrimination at time she sought accommodations.

Heatherly v. Portillo’s Hot Dogs, Inc., 958 F. Supp. 2d 913 (N.D. Ill. 2013). The plaintiff, a restaurant server, filed suit against her former employer alleging discrimination under the ADAAA for failure to provide reasonable accommodation for her pregnancy-related disability when it required her to deliver food to outdoor customers. The plaintiff informed the employer that she was pregnant and presented a doctor’s note, which stated that she was only to perform light duties and was “not to work more than 8 hour shifts.” The employer complied with the plaintiff’s doctor’s requests but denied her request to work only indoors; the plaintiff based that request on her own interpretation of the doctor’s “light duty” restriction. The court granted summary judgment to the employer with respect to the plaintiff’s claim. While it found sufficient evidence to create a triable issue as to whether the plaintiff’s high-risk pregnancy rendered her disabled under the ADAAA, it could not conclude that the employer had failed to accommodate her, because nothing in the record – including testimony from her doctor and nurse – suggested that she was unable to work outside.

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Price v. UTI, United States, Inc., 117 Fair Empl. Prac. Cas. (BNA) 1876, 2013 WL 798014 (E.D. Mo. Mar. 5, 2013). The plaintiff alleged that the defendant violated Title VII and the ADA when it terminated her three weeks after she gave birth and was recovering from a cesarean section. Denying the defendant’s motion to dismiss the plaintiff’s failure to accommodate claim, the court noted that an impairment need not be permanent or long term to meet the definition of a disability. Although EEOC’s interpretive guidance excludes pregnancy itself as a physical impairment, a physical impairment includes any physiological disorder or condition that affects the reproductive systems, which can be an impairment or complication related to pregnancy. Taking the evidence in the light most favorable to the plaintiff, the court concluded that she was disabled within the meaning of the ADA, because there was evidence that she had multiple physiological disorders and conditions that affected her reproductive system.

Nayak v. St. Vincent Hosp. & Health Care Ctr., Inc., 2013 WL 121838 (S.D. Ind. Jan. 9, 2013). The plaintiff, a medical student in an OB/GYN residency program, was not renewed in her third year, following a seven-month absence for pregnancy-related and post-partum complications that included being ordered to remain on complete bed rest for six months, miscarriage of one of the twins she was carrying, and post-partum difficulties that lasted two months and required physical therapy before returning to work. Denying in part the employer’s motion to dismiss the plaintiff’s ADA challenge to her termination, the court rejected the employer’s reliance on pre-ADAAA cases involving pregnancy-related complications. Given the lenient standard on a motion to dismiss and the current change in the law stating that an impairment lasting less than six months can be substantially limiting, the court, “in an abundance of caution,” found that the plaintiff sufficiently pled a plausible claim for disability discrimination.

u. Stroke

Feldman v. Law Enforcement Assocs. Corp. , 955 F. Supp. 2d 528 (E.D.N.C. 2013), aff’d on other grounds, 2014 WL 1876546 (4th Cir. May 12, 2014).

v. Stuttering

No new cases added.

w. Vision Impairments

No new cases added.

x. Other impairments

Bob-Maunuel v. Chipotle Mexican Grill, Inc., 29 A.D. Cas. (BNA) 936, 2014 WL 185978 (N.D. Ill. Jan. 15, 2014). The plaintiff, a general manager trainee, alleged that he was discriminated against based on his hernia, hypertension, eye disease, and kidney disease when his management training ceased and he was terminated. In response to the complaint, the defendant argued that the plaintiff’s alleged medical conditions were not disabilities as defined by the ADA because they were “either fictitious, temporary, or [did] not limit any major life activity.” The court held

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that although the plaintiff’s hypertension and kidney disease were not disabilities, his hernia and eye disease were, in that they substantially limited major life activities. Specifically, the court found that because the plaintiff’s doctor restricted him from lifting more than ten pounds because of his hernia, the plaintiff was substantially limited in lifting. Additionally, because the plaintiff contended that his eye disease interfered with his vision, prevented him from driving, gave him headaches, made it difficult for him to read voluminous documents, and caused his eye to leak fluid, he showed that he was substantially limited in seeing.

Howard v. Steris Corp., 886 F. Supp. 2d 1279 (M.D. Ala. 2012), aff’d, 550 F. App’x 748 (11th Cir. 2013). An assembly line worker alleged that he was discriminated against based on his disability (obstructive sleep apnea and Graves’ disease) when he was denied an accommodation and terminated for sleeping on the job. Prior to ruling on the merits in the employer’s favor because it had no knowledge of the plaintiff’s disability, the court noted that, “for better or worse,” the expanded list of major life activities “makes a person afflicted with a common, minor condition ‘just as disabled as a wheelchair-bound paraplegic – if only for the purposes of disability law.’” Thus, based on the plaintiff’s doctors’ testimony that the plaintiff’s sleep apnea interfered with his ability to sleep and that Graves’ disease also can cause difficulty sleeping, the court held that a reasonable jury could conclude that the plaintiff’s impairments substantially limited his ability to sleep.

2. Record of Disability

No new cases added.

3. “Regarded as” Coverage

a. “Regarded as” Coverage Not Satisfied

(1) Action Not Taken “Because of” Impairment

McNally v. Aztar Indiana Gaming Co., L.L.C., 2014 WL 300433 (S.D. Ind. Jan. 28, 2014). The employer did not “regard” the plaintiff as an individual with a disability, because there was insufficient evidence that the employer knew or thought the employee had depression or any other medical condition. The employer’s statements to the effect that the employee should seek professional counseling to deal with his personal issues was a reference to the employee’s having shared that he had experienced a house fire and was going through a child custody dispute.

Cobb v. Florence City Bd. of Educ., 2013 WL 5295777 (N.D. Ala. Sept. 18, 2013). The plaintiff, who was not selected for five positions for which he had applied, could not demonstrate that he was “regarded as” an individual with a disability, where the non-selections occurred more than a year after he had returned to work without any limitations following orthoscopic knee surgery.

Nayak v. St. Vincent Hosp. & Health Care Ctr., Inc., 2013 WL 121838 (S.D. Ind. Jan. 9, 2013). The plaintiff, a third-year medical resident, was not renewed, following a seven-month absence for pregnancy-related and post-partum complications. A letter sent by the Residency Program

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Director indicated that the plaintiff’s medical residency contract was not renewed “[d]ue to medically complicated pregnancy and significant concerns regarding her academic progress.” While concluding that the plaintiff’s impairments could plausibly be found to substantially limit a major life activity and thus allowing her to proceed with a disability discrimination claim under prong 1, the court granted the employer’s motion to dismiss any claim based on “regarded as” coverage, concluding that the ADA does not permit “mixed motive” claims, and therefore a termination because of both an impairment and problems with academic progress could not meet the “but-for” causation standard required to find that the termination was “because of” disability.

Rocha v. Coastal Carolina Neuropsychiatric Crisis Servs., P.A., 979 F. Supp. 2d 670 (E.D.N.C. 2013). The plaintiff, an employee of an outpatient mental health treatment facility, was terminated for failure to reveal his three prior felony drug convictions. Termination for this reason did not demonstrate that the employer “regarded” him as an individual with a disability, i.e., terminated him because of an actual or perceived impairment of drug addiction.

(2) Impairment Was “Transitory and Minor”

Reynolds v. Ocean Bio Chem/Kinpak, Inc., 2014 WL 495354 (M.D. Ala. Feb. 5, 2014). The plaintiff was unable to demonstrate that her supervisor regarded her as having a disability, notwithstanding his remark that she should “go home and get her foot better” and that she should return “in a couple of years if we have a position.” The court concluded that the plaintiff’s fractured ankle, which occurred in February and was expected to limit her ability to stand or walk until early June, was “transitory and minor.”

Kruger v. Hamilton Manor Nursing Home, 2014 WL 1345333 (W.D.N.Y. Mar. 26, 2014). Even if the plaintiff’s allegations were more detailed, as required to state a claim, the defendant’s motion to dismiss would be granted because the plaintiff’s broken arm was “transitory and minor.” In so concluding, the court noted that the plaintiff, a licensed practical nurse who claimed that a shift transfer constituted a demotion, admitted that her activities had been only “temporarily impacted.”

Cobb v. Florence City Bd. of Educ., 2013 WL 5295777 (N.D. Ala. Sept. 18, 2013). Orthoscopic knee surgery causing a three-month absence from work for recovery was “transitory and minor.” The court noted that the plaintiff was thereafter able to return to work without restrictions, resume his lawn care business, and walk approximately four miles twice per week.

Hutcheson v. General Motors Corp., L.L.C., 2013 WL 6799954 (W.D. Mich. Dec. 20, 2013). A back injury lasting one month was held to be “transitory and minor.”

Bush v. Donahoe, 964 F. Supp. 2d 401 (W.D. Pa. 2013). An ankle/foot sprain requiring a walking cast/boot for five months, but no other treatment, was held to be “transitory and minor.”

b. “Regarded as” Coverage Satisfied

Stahly v. South Bend Transp. Corp., 2013 WL 55830 (N.D. Ind. Jan. 3, 2013). The plaintiff, a bus driver, challenged her termination on various grounds, including perceived disability.

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Denying the employer’s motion for summary judgment on coverage, the court rejected the employer’s reliance on pre-ADAAA case law, ruling that it could be concluded that the termination was “because of” a perceived impairment, given that management knew that the plaintiff was taking medication and suffered an anxiety attack for which she was admitted to an emergency room, that she took FMLA leave, and that she was referred by the employee assistance program to a stress recovery center.

LaPier v. Prince George’s Cnty., Md., 2013 WL 497971 (D. Md. Feb. 7, 2013). The plaintiff, a student police officer, alleged that the county discriminated against him when it deemed him physically unfit for duty because of his blood disorder. Although granting the employer’s motion for summary judgment on the merits because the plaintiff was held not to be qualified, the court ruled as a preliminary matter that a reasonable juror could conclude that he was regarded as an individual with a disability, because the employer had medical documentation of his blood disorder and relied on it in concluding that he was unfit for duty. See also LaPier v. Prince George’s Cnty., Md., 2012 WL 1552780 (D. Md. Apr. 27, 2012).

Lafata v. Dearborn Heights Sch. Dist. No. 7, 2013 WL 6500068 (E.D. Mich. Dec. 11, 2013). The employer’s decision to rescind a conditional job offer based on a post-offer medical opinion of the applicant’s impairment by the employer’s contract physician which imposed restrictions on climbing ladders and lifting more than 40 pounds, demonstrated that the employer “regarded” the applicant as an individual with a disability.

Kiniropoulos v. Northampton Cnty. Child Welfare Serv., 917 F. Supp. 2d 377 (E.D. Pa. 2013). The same month that the plaintiff, a county child welfare caseworker, notified his employer of limitations due to a leg injury and requested FMLA leave, he was suspended and subsequently terminated for alleged infractions and misconduct. While granting the employer’s motion to dismiss the plaintiff’s ADA claim on the grounds that he was not “qualified,” the court first ruled that his allegations were sufficient for purposes of “regarded as” coverage. Although the plaintiff did not expressly allege that his injury would last six or more months, it was not apparent on the face of the pleadings that it would not. Moreover, case law permits an inference that an employer’s action was based on disability where there is temporal proximity between the action and the time that the employer learned of the employee’s medical condition.

B. Definition of “Qualified Individual with a Disability”

1. Essential Functions

a. Employer Judgment/Job Descriptions

Demyanovich v. Cadon Plating & Coatings, L.L.C. , 747 F.3d 419 (6th Cir. 2014). Reversing summary judgment for the employer, the court noted that the job description did not identify lifting or any other physical fitness requirements for a machine operator, thus suggesting they were not essential functions. The plaintiff had congestive heart failure, dilated cardiomyopathy, and diabetes. He requested and was denied FMLA leave and reassignment to less physically demanding jobs. Ultimately, he was terminated. The court noted that while there was evidence that the plaintiff was unable to perform certain physical tasks at the time of his deposition, there

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was no evidence that he was unable to perform those tasks at the time he was terminated. Indeed, the plaintiff’s supervisor testified that the plaintiff was performing satisfactorily at the time of his termination and that he was not fired for performance problems.

Rorrer v. City of Stow , 743 F.3d 1025 (6th Cir. 2014). Reversing summary judgment for the employer, the court held that there was a genuine issue of material fact whether driving a fire apparatus under emergency lights was an essential function of a firefighter. After the plaintiff developed monocular vision, the defendant fired him. Initially, the department doctor who examined the plaintiff released him to return to work, but the chief medical officer reversed that decision after receiving a call from the Fire Chief complaining about the decision. Although the National Fire Protection Association (NFPA) guidelines list the ability to operate a fire apparatus in an emergency mode as an essential job task of a firefighter, evidence did not show that the defendant had adopted those guidelines. The record also suggested that the chief medical officer was unfamiliar with the NFPA guidelines and did not use them in determining that the plaintiff was no longer qualified. While the ADA states that courts should give “consideration” to an employer’s judgment in determining the essential functions of a position, it does not require courts to defer to such judgment or to ignore the other statutory factors to be considered in identifying the essential functions. The plaintiff stated that the consequences of excusing him from driving an apparatus during an emergency would have been minimal, that this task was not highly specialized, and that there were enough other firefighters available to perform this function. Multiple firefighters noted that not everyone was required to drive an emergency vehicle. Supporting this evidence, the job description, under “essential functions,” mandated performance of all listed job duties but also stated that a person “may” need to drive in an emergency. Finally, the court held that the plaintiff’s statement that he would feel compelled to drive an emergency vehicle if ordered to do so did not make it an essential function, noting that a central purpose of the ADA is to prohibit employers from requiring employees with disabilities to perform tasks that the law deems nonessential.

Henschel v. Clare Cnty. Rd. Comm’n , 737 F.3d 1017 (6th Cir. 2013). As the result of an above-the-knee leg amputation necessitated by a motorcycle accident, Henshel was no longer able to haul an excavator using a truck with a manual transmission, a job function he had performed routinely before the accident. Reversing summary judgment for the employer, the court held that a genuine issue of fact existed whether hauling an excavator was an essential function of the excavator operator position, because the job description did not list this particular duty. Hauling an excavator was listed in the position description for a truck/tractor driver, but not in the plaintiff’s excavator operator position. The defendant argued that hauling an excavator fell under “other duties assigned” and that this covered assignment of any job duty from any other job description. The court disagreed, reasoning that not every duty that may be assigned is automatically an essential function, because to conclude otherwise would make the job description meaningless. Essential functions must be fundamental to a particular position, not marginal. Finally, while an employer’s judgment carries weight in determining whether a function is essential, it is only one factor to be considered.

Majors v. General Elec. Co. , 714 F.3d 527 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that the ability to lift objects weighing over 20 pounds was an essential function for a position requiring an employee to inspect, test, and audit a variety of purchased

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components and internally manufactured parts for conformance to engineering specifications and quality standards. As a result of a work injury, the plaintiff was unable to lift more than 20 pounds and could not raise her right arm above shoulder level. The job description noted that the position required “intermittent movement of heavy objects.” In addition, a person who used to work in the position and a manager who supervised others in the position confirmed that someone in the position needed to be able to lift parts and materials weighing more than 20 pounds. Finally, the defendant’s labor resources manager and an ergonomic technical specialist verified that objects that the plaintiff would have to lift weighed more than 20 pounds.

Knutson v. Schwan’s Home Serv., Inc. , 711 F.3d 911 (8th Cir. 2013). Affirming summary judgment for the employer, the court held that it was an essential function of a location general manager to be DOT-qualified to drive a delivery truck. The position description stated this requirement, as did the plaintiff’s conditional job offer. After a penetrating eye injury, the plaintiff was required to undergo a medical examination and recertification pursuant to DOT regulations that apply to drivers of commercial vehicles. The doctor refused to give the plaintiff the certification or a waiver, and the company fired him. Other supervisors testified that managers drove delivery trucks to deliver products and to train new employees. Exempting managers from these duties would have resulted in fewer products being delivered and therefore a drop in sales, as well as having to restructure how new drivers were trained. Although managers may have driven these trucks infrequently, all other managers had the DOT certification, and nobody could legally drive a truck without it. The plaintiff also conceded that he drove the truck before his injury. Although the company had permitted the plaintiff to remain in his position for several months after the injury (without driving a truck), the ability to obtain DOT certification remained an essential function. The company had hoped that the plaintiff’s eyesight would improve and therefore delayed having him undergo the medical examination. The court concluded that the defendant was not required to exempt the plaintiff from obtaining DOT certification so that he could drive the delivery trucks.

b. Limited Number of Employees

Henschel v. Clare Cnty Rd. Comm’n , 737 F.3d 1017 (6th Cir. 2013). Reversing summary judgment for the employer, the court held that a genuine issue of fact existed whether hauling an excavator to a worksite was an essential function of an excavator operator position, even with only one semi-truck driver available to whom this function could have been reassigned. As the result of an above-the-knee leg amputation necessitated by a motorcycle accident, Henshel was no longer able to haul an excavator using a truck with a manual transmission, a job function he had performed routinely before the accident. The semi-truck driver testified that, in addition to his other duties, he would have been able to haul the excavator. A former excavator operator testified that there would have been minimal consequences to operations if this duty had been assigned to the one available semi-truck driver. The former excavator operator also testified that he had not routinely driven the excavator to the worksite (though there were two semi-truck drivers available at that time). Finally, the former operator noted there were a number of other employees besides the semi-truck driver who were qualified and able to transport the equipment, if necessary.

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c. Time Spent Performing Function/Consequence(s) of Non-Performance

Samson v. Federal Express Corp. , 746 F.3d 1196 (11th Cir. 2014). Reversing summary judgment for the employer, the court held that there was a genuine issue of material fact whether test driving trucks was an essential function of a mechanic, given the minimal amount of time that was spent performing this function. The job description required all mechanics to have a commercial driver’s license for interstate driving. To obtain this license an individual must pass a DOT medical examination. Due to his insulin-dependent diabetes the plaintiff failed the examination, and the employer withdrew its job offer. The court noted that requiring a commercial license might mean that test driving was a “highly specialized” job function and that a mechanic’s need to be able to repair a truck might involve test driving the vehicle. However, the person eventually hired for the mechanic position testified that in three years he had only test driven trucks three times and that on at least one occasion he had someone else test drive a truck while he sat in the passenger seat and diagnosed the mechanical problem. This mirrored the experience of mechanics in similar jobs in other facilities, who test drove an average of under four hours per year. The court reasoned that if test driving were an essential function, it would be performed with more regularity by mechanics. The court also noted that although Samson would have been the only mechanic at the facility, there were nine other licensed truck drivers who could have test driven vehicles.

Henschel v. Clare Cnty. Rd. Comm’n , 737 F.3d 1017 (6th Cir. 2013). Reversing summary judgment for the employer, the court held that a genuine issue of fact existed regarding the amount of time the plaintiff had spent hauling an excavator, thus calling into question whether this job duty had been an essential function of his excavator operator position. As the result of an above-the-knee leg amputation necessitated by a motorcycle accident, Henshel was no longer able to haul an excavator using a truck with a manual transmission. Although Henshel had performed the function 70% of the time before his accident, the record did not address how much time he had actually spent transporting the equipment. The excavator was not transported every day and could remain at a worksite for weeks at a time. In fact, Henschel testified that the excavator remained at a job site 90% of the time.

d. Rotating Among Job Functions

No new cases added.

e. Attendance and Work Schedules

EEOC v. F ord Motor Co. , 29 A.D. Cas. (BNA) 1140, 2014 WL 1584674 (6th Cir. Apr. 22, 2014). Reversing summary judgment for the employer, the court held that there was a genuine factual issue whether physical attendance in the workplace was an essential function of a resale steel buyer. As a result of irritable bowel syndrome, Jane Harris requested authorization to telework on an as-needed basis as a reasonable accommodation. Ford denied the request and proposed several alternative accommodations which Harris declined; eventually it terminated Harris. While the court acknowledged that many positions “undoubtedly” require physical attendance in the workplace, it stated that recent technological developments meant that there

15

was no longer a reason to assume that presence in an employer’s “brick-and-mortar location” was always “synonymous” with workplace attendance. The real issue was not whether attendance was an essential function but whether an employee’s physical presence in the Ford facility was an essential function of the resale buyer position. The court was not persuaded that the teamwork required for this position necessitated Harris’s physical presence in the facility. While Ford managers stated that the job required face-to-face interactions to facilitate group problem-solving, the court emphasized that an employer’s business judgment was only one factor to consider in determining the essential functions of a job. In Harris’s experience, most communication with internal and external stakeholders was accomplished via conference call, even when she had been present in the facility. While Harris was required to make occasional site visits, Ford presented no evidence that she would be less able to do so if she worked partially or even primarily from home. Moreover, the company permitted others in the same job to telecommute, although less frequently than Harris had requested. Finally, the court emphasized its decision was not a rejection of “the long line of precedent” recognizing predictable attendance as an essential function of most jobs.

M cMillan v. New York , 711 F.3d 120 (2d Cir. 2013). Reversing summary judgment for the defendant, the court held that a reasonable juror could find that arrival at work at a specific time was not an essential function for a city case manager. The agency’s flex-time policy permitted employees to arrive between 9 and 10:15 a.m. A supervisor could approve or disapprove a late arrival; if approved, the employee could apply accumulated leave or “banked time” – additional hours worked – to cover the time missed. Due to medication taken for his schizophrenia, the plaintiff was drowsy and sluggish in the morning, often resulting in arrival after 11 a.m. For a period of at least 10 years, the plaintiff’s tardy arrivals were explicitly or implicitly approved, and he was allowed to use banked time to make up for his late arrival. But, in 2008, management decided to stop approving the plaintiff’s late arrivals, prompting the plaintiff to request repeatedly that he be given a later start time. The agency refused, stating that the plaintiff could not work past 6 p.m. without a supervisor present. The agency began disciplining the plaintiff and ultimately issued a 30-day suspension. The appeals court concluded that physical presence at or by a specific time is not, as a matter of law, an essential function for all jobs. Although a specific arrival time would be an essential function for many jobs, the district court had failed to do a “penetrating factual analysis” to determine whether arrival at a specific time was an essential function of the plaintiff’s job. The appeals court observed that for 10 years the agency had routinely approved the plaintiff’s late arrivals and that the agency’s flex-time policy permitted all employees a window of over one hour to arrive at work, suggesting that punctuality might not have been essential. Cases cited by the agency and district court were distinguishable because they involved facts that supported a finding that arrival at a specific time was an essential function. Finally, on remand the district court would be required to consider whether the plaintiff could perform his essential functions by working longer hours on certain days so that he could bank time for days he was tardy and still work 35 hours per week.

f. Mandatory Overtime

No new cases added.

g. Public Safety

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No new cases added.

h. Ability to Handle Stress

Hill v. Walker, 737 F.3d 1209 (8th Cir. 2013). Affirming summary judgment for the Arkansas Department of Human Services, the court held that handling stressful cases was an essential function of a family service worker. Hill, who had depression and anxiety, asked to be removed from a case after being subjected to a client’s harassment and verbal abuse, including racial slurs. The court deferred to the employer’s judgment that the ability to handle a difficult case or a stressful client is the “nature of this business” and noted that the plaintiff’s job description explained that an employee will experience “frequent exposure to physical and verbal abuse,” warned of a “stressful environment,” and emphasized that “regular contact with clients” is part of the job. Permitting individual caseworkers to choose among case assignments based on their toleration of stress could wreak havoc for management, especially because the agency was already short staffed.

Koessel v. Sublette Cnty. Sheriff’s Dep’t , 717 F.3d 736 (10th Cir. 2013). Affirming summary judgment for the employer, the court held that a deputy sheriff unable to handle stress, which was an essential function of his position, was not qualified for the job. After the plaintiff had a stroke and returned to work, colleagues expressed concerns about his behavior, including that he had become flustered while making a traffic stop because he could not remember a particular word and he had lost his temper while on the job. While a neurological fitness-for-duty examination did not find any problems, the doctor referred him to a neuropsychologist because of possible problems with cognitive functioning. The psychologist found mild to moderate fatigue, episodes of lightheadedness, and episodes of weeping, from which he concluded the plaintiff should be in a low-stress position in which he would not have regular contact with the public. The plaintiff introduced no evidence contradicting the psychologist’s findings that he had lingering psychological problems that interfered with the ability to handle stress. Evidence that he was physically capable of performing the job was irrelevant. Similarly, the fact that his scores on a standard psychological test were unchanged since he first took them years ago did not conflict with or undermine the psychologist’s findings. The defendant’s removal of the plaintiff from his job was based on an individualized assessment stemming from observations by fellow officers and two medical examinations. Finally, the fact that the plaintiff performed other essential functions without incident did not undermine the psychologist’s findings, because those functions did not involve exposure to stressful situations.

i. Interacting with Others

No new cases added.

j. Travel

No new cases added.

k. Modified Positions

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No new cases added.

l. Question for Jury/Factual Issue

Keith v. County of Oakland , 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the employer, the court held that genuine issues of material fact existed as to whether hearing was an essential function for a lifeguard at a wave pool and whether the plaintiff was otherwise qualified without the ability to hear. Although the court presumed that communicating was an essential function of the lifeguard position in order to supervise water activities, enforce safety rules, maintain water areas, and teach swim lessons, the plaintiff presented sufficient evidence that hearing might not be necessary to communicate effectively. His most compelling evidence came from experts with knowledge, education, and experience regarding the ability of deaf individuals to be lifeguards. In addition, evidence showed that a purely visual technique is used by lifeguards to scan the area for any distressed swimmers. Several experts testified that such detection is almost completely visually based. Moreover, to obtain his lifeguard certification, the plaintiff had to demonstrate the ability to detect distressed swimmers. With a “modest” modification, he would also be able to communicate with other lifeguards during lifesaving. The defendant itself had proposed a reasonable accommodation that it thought would improve communication generally between lifeguards in signaling an emergency situation. Evidence also showed that verbal enforcement of safety rules is generally impractical in a noisy water park and that most lifeguards use whistles and physical gestures to maintain safety. The defendant also had proposed having the plaintiff carry laminated cards to aid basic communication with the public. (The court suggested that some of this communication was possibly a marginal function because attendants were available throughout the water park to assist patrons with basic needs and questions.)

2. Statements Made in Benefits Proceedings

Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950 (9th Cir. 2013). The plaintiff, whose back injury limited her ability to stand, bend, or stoop, was told that she would be transferred from her literary-specialist position to a kindergarten teaching position the following school year. After aggravating her back injury, the plaintiff took extended FMLA leave, drew private disability benefits, and requested reinstatement to her literary-specialist position or transfer to another non-teaching position requiring minimal movement, as a reasonable accommodation. The request was denied, and the plaintiff applied for disability retirement under the Nevada Public Employees’ Retirement Systems (PERS). The court held that statements that the plaintiff had made on her FMLA, private disability, and PERS applications did not preclude a lawsuit alleging unlawful denial of reasonable accommodation, because, under the standard set by Cleveland v. Policy Management System Corp., 526 U.S. 795 (1999), she had provided an adequate explanation of their apparent inconsistency with the claim that she was “qualified” for purposes of her ADA claim. Her statements that she was “totally disabled” and “could do no work at all until released by a doctor,” she explained, were made on her FMLA and private disability benefits applications and were therefore meant to describe a temporary, rather than permanent, inability to work. The statements on her PERS application that she could not perform the duties of a kindergarten teacher or a literary specialist, that she was “unable to work due to injury or

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mental or physical illness,” and that she wished to apply for “total and permanent disability,” she explained, were not intended to address her ability to work with a reasonable accommodation. Further, the plaintiff’s failure to indicate on the PERS form an ability to work “in a limited capacity” did not jeopardize her claim, because being able to work in a limited capacity is not the same thing as being able to work with a reasonable accommodation.

a. Plaintiff Still May Be a Qualified Individual with a Disability

No new cases added.

b. Plaintiff Is Not a Qualified Individual with a Disability

No new cases added.

3. Miscellaneous

Keith v. County of Oakland , 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the defendant, the court held that genuine issues of material fact existed as to whether the defendant had made an individualized inquiry to determine whether the plaintiff, who was deaf, was qualified to be a lifeguard. At the post-offer medical examination, the doctor declared the plaintiff to be unqualified immediately after realizing the plaintiff was deaf, without doing any type of individualized assessment. The doctor’s report stated that the plaintiff could be a lifeguard only with constant accommodation (never identified), and even then, the doctor did not think such accommodation would be adequate. The defendant then contacted aquatic safety consultants, who voiced serious doubt about the plaintiff’s qualifications and asserted that, without 100% certainty that accommodations would always be effective, the plaintiff would pose a safety hazard. As a result, the defendant withdrew its job offer. The district court concluded that while the doctor who declared the plaintiff unqualified had not made an individualized inquiry, the ultimate decisionmaker for the defendant had made an individualized assessment of the plaintiff’s ability to be a lifeguard because: (1) county staff had observed him while he took the county’s lifeguard training program to earn certification; (2) staff developed possible accommodations for the plaintiff; and (3) staff and management had supported his hiring. Although the appeals court agreed with this conclusion, it questioned why the defendant then subsequently withdrew its job offer: did the defendant alter its assessment based on a doctor’s report and the advice of the aquatic safety consultants, and if so, did the defendant’s individualized inquiry satisfy the ADA? Noting that it appeared “incongruent with the underlying objective of the ADA for an employer to make an individualized inquiry only to defer to the opinions and advice of those who have not,” the appeals court remanded the case to the district court to address these issues. Hohn v. BNSF Ry. Co., 707 F.3d 995 (8th Cir. 2013). Affirming a jury verdict in the employer’s favor, the court upheld the conclusion that the plaintiff was unable to perform the essential functions of a locomotive machinist due to his advanced stage retinitis pigmentosa. The optometrist who diagnosed Hohn placed restrictions on him that prevented him from performing the essential functions of his position, including not walking on uneven surfaces (he’d fallen on such a surface before being diagnosed), only occasional bending or stooping, no operating

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vehicles or machinery, no climbing ladders or scaffolds, no working at unprotected heights, and no job requiring more than a 15-degree visual field. In short, the doctor recommended that Hohn work only in a confined work station, the opposite of the working environment of a locomotive machinist, which required that he work within, around, over, and under locomotives. Furthermore, the work environment included variable lighting, uneven surfaces, scaffolding, ladders, ramps, stairs, and overhead objects. Hohn disputed his doctor’s restrictions and testified that he ignored them, but he could offer no medical evidence that contradicted them. The court concluded that the ADA does not require an employer to ignore restrictions from an employee’s doctors.

C. Disparate Treatment

1. Generally

Terrugi v. CIT Group/Capital Fin., Inc., 709 F.3d 654 (7th Cir. 2013). The plaintiff, who had several bones removed from his right hand, alleged that his termination was based on disability, age, and retaliation for filing a workers’ compensation claim. Affirming summary judgment for the employer, the court held that the plaintiff’s circumstantial evidence of discriminatory intent was insufficient to raise a genuine issue of material fact under the direct method of proof. Assertions that the employer secretly monitored the plaintiff’s email for a year, did not interview him for a senior position until it had been offered to someone else, and fired him for what he believed to be a minor violation of the company’s confidentiality policy after a very brief investigation did not support his claim under the direct method, because they constituted “an amorphous litany of complaints about a myriad of workplace decisions,” instead of “pointing directly” to discrimination. Comments by the plaintiff’s supervisor about the plaintiff’s retirement plans, being old, and being on drugs were also insufficient, because they were not made around the same time, or in reference to, the termination decision.

Nayak v. St. Vincent Hosp. & Health Care Ctr., 27 A.D. Cas. (BNA) 596, 2013 WL 121838 (S.D. Ind. Jan. 9, 2013). The plaintiff’s medical residency contract was not renewed “due to her medically complicated pregnancy and significant concerns regarding her academic progress,” approximately two weeks after returning from a leave necessitated by post-partum difficulties that included symphysis pubis dysfunction. After allowing the plaintiff’s prong-one (actual disability) claim to proceed, the court dismissed her prong-three regarded-as claim because she did not show that her perceived disability was a but-for cause of the action. In reaching its conclusion, the court relied on Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010), and rejected the plaintiff’s argument that Serwatka was effectively overruled when the ADA’s prohibition against discrimination “because of” disability was changed to a prohibition against discrimination “on the basis of” disability by the ADAAA, concluding that this textual change was too small to transform the ADA into a mixed-motives statute.

2. “Sole Cause” Standard in ADA Cases

No new cases added.

3. Disability-Related Statements as Evidence of Discrimination

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No new cases added.

4. Pretext

Smothers v. Solvay Chems., Inc., 740 F.3d 530 (10th Cir. 2014). The plaintiff’s degenerative disc disease caused severe chronic pain and sleeping problems, necessitating frequent intermittent FMLA leave from his surface maintenance mechanic job. After his supervisors complained about the leave and gave him negative performance reviews for absenteeism, the plaintiff was terminated by a “decision making group” of six supervisors, ostensibly for violating safety procedures and engaging in hostile behavior toward a coworker. Reversing summary judgment for the employer, the court held that the plaintiff had raised a jury question as to whether the proffered reasons were pretext for FMLA retaliation and disability discrimination, by identifying employees who had been treated less harshly for similar safety violations. Although the decision making groups were not identical in each case, there was sufficient overlap between the groups to establish that the comparators were “similarly situated.” Five of the plaintiff’s six decision makers participated in at least one of the comparators’ decision making groups, and each of the comparators’ decision making groups contained at least one member of the plaintiff’s decision making group. A finding of pretext was also supported by the employer’s failure to allow the plaintiff to explain or deny his alleged hostile behavior and the employer’s prior retaliation and bias against the plaintiff for taking FMLA leave.

Lenzen v. Workers Compensation Reinsurance Ass’n, 705 F.3d 816 (8th Cir. 2013). Thirteen years after she began working as an administrative assistant, and seven years after she first developed chronic fatigue syndrome, fibromialgia, and chronic depression, the plaintiff was issued a “final warning letter” citing recent problems with work performance, conduct, and attendance, stating that she would be terminated if she did not make adequate progress, and notifying her that she would be required to “key” 3.75 boxes of scanned claim files per week. The plaintiff was terminated when, after being told by her supervisor that she had failed to meet that week’s keying quota, she accused the supervisor of lying and “blew her stack.” Affirming summary judgment for the employer, the court found that the plaintiff failed to support an inference that the employer’s reasons for terminating her – inadequate performance and insubordination – were pretext for disability discrimination where the same supervisor had previously allowed her to take daily naps and unlimited absences as reasonable accommodations, provided her with two years of disability leave, and promoted her after she returned to full-time workyears before she was terminated.

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D. Reasonable Accommodation

1. Notice of the Need for Reasonable Accommodation

Cloe v . City of Indianapolis , 712 F.3d 1171 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that the plaintiff did not request a reasonable accommodation when she initially informed her employer that she had difficulty walking from her assigned parking place to her office, because she did not specifically ask for an accommodation. However, the court found that she requested a reasonable accommodation for her multiple sclerosis more than two months later when she submitted a list of medical restrictions from her doctor, including one asking for “specified parking . . . if possible.” Although the plaintiff also alleged that she requested that her work be proofread by another employee as a reasonable accommodation, the court found no evidence that she informed her employer that her poor written work was related to her disability or asked for a reasonable accommodation for her written work.

Lenzen v. Workers Compensation Reinsurance Ass’n, 705 F.3d 816 (8th Cir. 2013). Affirming summary judgment for the defendant, the court held that an employee with fibromyalgia and chronic fatigue syndrome who had received reasonable accommodations failed to request additional ones and therefore the defendant was not liable for failing to provide them. In response to a doctor’s note, the defendant permitted Lenzen to nap each day and gave her time off for frequent medical appointments. The defendant also reduced her job requirements. Lenzen claimed that she should have been paid for the time she spent taking naps and that “at times” the defendant failed to provide her with a private office in which to nap, forcing her to sleep on the floor or at her desk. There was no evidence, however, that Lenzen asked for a better space in which to nap or to be paid for this time. Furthermore, she presented no evidence that the places where she napped negatively impacted her medical condition or her job performance.

2. Interactive Process

EEOC v. Ford Motor Co. , 2014 WL 1584674 (6th Cir. Apr. 22, 2014). Reversing summary judgment for the employer, the court held that the employer, which had rejected a request to telework for a large portion of the work week, should have used the interactive process to explore reasonable alternatives. As a result of irritable bowel syndrome, Jane Harris, a resale buyer, requested authorization to telework on an as-needed basis up to four days a week as a reasonable accommodation. Ford denied the request and proposed several alternative accommodations, which Harris declined; eventually it terminated Harris. The court stated that it was Ford’s responsibility to engage in an interactive process with Harris if it objected to her teleworking up to four days a week. Harris had been willing to discuss alternatives, including telecommuting for only one to two days per week. Having failed to engage in this discussion, Ford could not show that no telework arrangement was reasonable. The court also rejected Ford’s argument that its offer to provide alternative accommodations, which Harris rejected, meant she was not qualified for the job. Alternative accommodations must adequately meet an employee’s needs, and the evidence suggested that Ford’s two alternatives – moving her closer to the bathroom and finding a reassignment that permitted telework – would not have effectively met Harris’s needs. Even standing up from her desk could have caused Harris to soil herself, so proximity to the bathroom would not necessarily have resolved this issue. Contrary to the

22

dissent, the court concluded that it was not reasonable to expect Harris to tolerate the “humiliation” of soiling herself on a regular basis in front of coworkers, merely because she could use Depends or bring a change of clothing. As for reassignment, the court noted that Ford offered only to look for a position, not guarantee it could move her into one. While an employer normally may choose between “reasonable options,” choosing reassignment here was not an effective accommodation because the telework she had requested in her current position might have been effective.

Rorrer v. City of Stow , 743 F.3d 1025 (6th Cir. 2014). Reversing summary judgment for the employer, the court held that there was a genuine issue of material fact whether the employer committed an independent violation of the ADA by failing to engage in good faith in the interactive process. After developing monocular vision, the defendant fired the plaintiff, a firefighter, because of his inability to drive a fire apparatus under emergency lights. The court found that the plaintiff had requested two reasonable accommodations – reassignment of the marginal function of driving the fire truck and reassignment to a new position. The court noted that the defendant ignored evidence that driving the vehicle during an emergency was not an essential function and instead made a preemptory decision that Rorrer was unqualified to remain in the firefighter position. Similarly, the defendant’s refusal to discuss reassignment suggested bad faith, reinforced by its insistence that Rorrer would still have to be able to perform the driving requirement even though there was no indication that anyone in the new position ever actually drove a fire truck during an emergency. The record suggested that, if the defendant had engaged in a good faith interactive process, it could have reassigned Rorrer without having to modify any actual job duties.

Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014). Reversing summary judgment for the employer, the court held that the employer violated the ADA by abruptly ending the interactive process and terminating the plaintiff, when further engagement would have identified a reasonable accommodation. After repeatedly falling asleep at work, the plaintiff received a warning of possible termination and was notified that she could submit information relevant to this determination. A few days later she informed Human Resources (HR) that a medical condition might be responsible for her sleeping episodes, and was given a medical questionnaire for her doctor to fill out that was due two weeks later. The doctor checked the box indicating that the plaintiff had an ADA disability, recommended periodic breaks, and noted he was conducting additional medical tests. The plaintiff immediately returned the paperwork to HR, well within the two-week deadline, but the company proceeded with termination. A month later, the plaintiff received a definitive diagnosis of narcolepsy, which is manageable with proper medication.

The court noted that the employer had not yet decided whether to fire the plaintiff when she notified the company that she might have a medical condition causing the sleeping episodes. The defendant correctly began the interactive process by giving the plaintiff the medical questionnaire for her doctor, but it did not engage her further when it received the completed document and instead disregarded it. The court rejected as insufficient the defendant’s claim that it engaged in the interactive process by giving the plaintiff the medical questionnaire. The defendant claimed that it was not required to accept the doctor’s “opinion” that the plaintiff had an ADA disability, but the court noted that the company chose not to seek clarification from the

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doctor about the severity of her condition or to inquire what reasonable accommodations might be effective. Although failure to engage in the interactive process is not an independent basis for liability, a violation may be found if failure to engage in this process prevents identification of an appropriate accommodation. Here, the evidence suggested that a reasonable accommodation was “readily available” in that the plaintiff needed only further medical testing and a prescription to control her narcolepsy.

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Wilson v. Dollar Gen. Corp. , 717 F.3d 337 (4th Cir. 2013). Affirming summary judgment for the employer, the court held that an employer is not liable for failing to engage in an interactive process where an employee is unable to provide evidence that his requested reasonable accommodation – here, a two-day extension of leave – would have enabled him to return to work. The defendant had already granted the plaintiff six weeks of leave to obtain treatment for a serious eye infection, which it extended for two additional weeks, and then it granted one extra day of leave. When the plaintiff arrived at work on his anticipated return date, he presented a doctor’s note requesting two more days of leave with a return date of April 9, 2010. The employer denied the requested accommodation and fired him. The court noted that there was no evidence that, if the defendant had engaged in a good faith interactive process, a reasonable accommodation would have been found that would have enabled the plaintiff to resume performance of his essential functions. Although the plaintiff testified that he resumed looking for a job about 10 days after his termination, this testimony did not establish that he could have returned to work with a two-day extension of leave.

Keith v. County of Oakland , 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the employer, the appeals court instructed the district court on remand to address whether the defendant had failed to engage in an interactive process. The district court did not address this issue because it had found that the plaintiff had failed, as a matter of law, to identify an accommodation that was objectively reasonable, a conclusion the appeals court found was erroneous for summary judgment purposes. The plaintiff, a deaf individual who applied to be a lifeguard at a wave pool, argued that the defendant failed to discuss with him concerns raised by the doctor who conducted the post-offer examination and by aquatic safety consultants. The plaintiff maintained that if the defendant had engaged in an interactive process, it would have learned about his ability to detect loud noises through his cochlear implant. He also could have clarified that he did not need sign language interpreters to perform his essential functions but only for staff meetings and classroom instruction. Finally, the plaintiff could have referred the defendant to individuals with expertise regarding the ability of deaf people to be lifeguards.

Basden v. Professional Transp., Inc. , 714 F.3d 1034 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that even though the record suggested that the employer’s response to Basden’s request for a 30-day leave of absence was not “appropriate,” the employer did not violate the ADA since failure to engage in the interactive process is not an independent basis for liability and the employee failed to show that she could work with a reasonable accommodation.

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Cloe v. City of Indianapolis , 712 F.3d 1171 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that the defendant’s efforts to provide the plaintiff with an appropriate parking space met its reasonable accommodation obligation, even if it took several months for the plaintiff to finally receive a parking space that effectively met her needs. The court also found that the defendant’s efforts to give her a printer near her office were sufficient. The court noted that reasonable accommodation is “a process, not a one-off event.” The ADA does not require that an employer provide an employee with the specific accommodation requested but rather engage the employee in an interactive process to determine what would be an effective accommodation. In this case, the plaintiff developed multiple sclerosis and submitted a list of medical restrictions, including one asking for “specified parking . . . if possible.” In response, the defendant assigned the plaintiff to a lot across the street from her worksite. About three months after her initial request, she submitted a doctor’s note asking for a parking space in her building because parking in the new lot required more walking than she could handle. The defendant responded about six weeks later by giving her visitor parking passes for the underground lot beneath her building and for street parking, but these proved ineffective because the spots she required were often full when she arrived. The plaintiff informed the defendant of the problem, and within a few weeks, after another employee left his position, she received his permanent underground parking space. The court stated that there was no way for the employer to have known that the initial parking spaces provided would turn out to be insufficient. Furthermore, each time the defendant learned an accommodation was not working, it acted with “reasonable speed” to provide a new one. Regarding the printer, the defendant took between two weeks and one month to provide the plaintiff with a printer for her office after she requested one. The plaintiff argued that the defendant should have immediately bought her a printer or given her a temporary one to use. However, the fact that the defendant ultimately took a printer from another employee suggested there were no printers to lend to the plaintiff, and as a governmental entity it had a responsibility to evaluate alternative accommodations before spending taxpayer money. The issue was not whether the defendant could have chosen another accommodation but whether the chosen accommodation, in light of all the facts, was reasonable. Under this standard, a delay of several weeks before providing an effective accommodation was not unreasonable.

James v. Hyatt Regency Chicago, 707 F.3d 775 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that the plaintiff’s delayed return to work was caused by his failure to clarify the meaning of several doctor’s notes indicating an inability to perform the essential functions of his banqueting job, rather than by the employer’s refusal to resume providing accommodations given before the plaintiff’s use of extended medical leave. The plaintiff had a vision problem that was exacerbated when he developed a retinal detachment requiring corrective surgery. Prior to this, the defendant had provided reasonable accommodation for over 20 years (increasing the print size of his work assignments and schedules). The plaintiff was granted FMLA leave and, when that was exhausted, he received leave under the collective bargaining agreement. After the expiration of the FMLA leave the plaintiff provided notes from his doctor, one of which stated that he would not be able to work until early August (about three weeks after the expiration of the FMLA leave). The plaintiff did not return to work in August but submitted a note from a different doctor in late September saying he could return to work with the restrictions of no heavy lifting or excessive bending. In response, the defendant tried unsuccessfully to obtain more information about the restrictions;

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the defendant made a second unsuccessful attempt to obtain information in December. In January 2008 the defendant contacted the first doctor to ask about the plaintiff’s medical condition and was informed that the plaintiff could return to work. The defendant then met with the plaintiff who sought and was granted two weeks of paid vacation. The plaintiff returned to work in mid-February. The plaintiff alleged several FMLA violations and that the defendant’s delay in returning him to work resulted from its wish to avoid providing the reasonable accommodations he had received for the past two decades. The court concluded that the defendant’s refusal to reinstate the plaintiff was unrelated to the need to continue providing reasonable accommodations that it had provided for over 20 years; rather, reinstatement was denied because the plaintiff and his doctors did not provide more specificity about the need for light duty or certain restrictions that would prevent performance of the essential functions of his job.

3. Job Restructuring, Other Alterations to the Job or Work Environment, Part-Time Work, and Modified Work Schedules

Rorrer v. City of Stow , 743 F.3d 1025 (6th Cir. 2014). After the plaintiff developed monocular vision, the defendant fired him because he could not drive a fire apparatus under emergency lights. Reversing summary judgment for the employer, the court held that there was a genuine issue of material fact whether the function of driving a fire apparatus under emergency lights could have been reassigned to another firefighter. If this job duty was not an essential function, then it could have been assigned to another firefighter as a reasonable accommodation.

McMillan v. New Yor k , 711 F.3d 120 (2d Cir. 2013). Reversing summary judgment for the employer, the court held that the plaintiff had suggested two plausible reasonable accommodations to address his disability-related tardiness, thereby raising a material factual issue as to whether he could perform the essential functions of a case manager. The employer’s flex-time policy permitted employees to arrive between 9 and 10:15 a.m. A supervisor could approve or disapprove a late arrival, and if approved, the employee could apply accumulated leave or “banked time,” i.e., to cover the time missed. Employees were required to work 35 hours per week, and they had a mandatory one-hour lunch period in which they were prohibited from working without prior approval. Due to medication taken for his schizophrenia, the plaintiff was drowsy and sluggish in the morning, often resulting in arrival after 11 a.m. For a period of at least 10 years, the plaintiff’s tardy arrivals were explicitly or implicitly approved, allowing him to use banked time to make up for his late arrival. But, in 2008, management decided to stop approving the plaintiff’s late arrivals, prompting him to request repeatedly that he be given a later start time because of the side effects of his medication. The employer refused, stating that he could not work past 6 p.m. without a supervisor present. The plaintiff noted that he often worked past 7 p.m. and that the office was open until 10 p.m., so that his request to work later would permit him to arrive after 10:15 yet meet his 35-hour requirement and bank extra hours to use when he was tardy. Alternatively, the plaintiff proposed that he be allowed to work through lunch to bank time.

Keith v. County of Oakland , 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the employer, the court held that genuine issues of material fact existed as to whether job restructuring, a form of accommodation listed in the statute, would have enabled a deaf

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individual to perform the essential functions of a wave pool lifeguard. Communicating was an essential function in order to supervise water activities, enforce safety rules, maintain water areas, and teach swim lessons. Evidence showed that several accommodations initially proposed by a defendant official would have allowed the plaintiff to perform the essential function of effectively communicating while on duty, at little or no cost to the defendant. For example, the plaintiff could have carried laminated note cards to communicate with guests in non-emergency situations; he could have used his whistle and gestures to enforce pool rules; and he could have looked at other lifeguards while visually scanning his zone of the pool to determine if they were entering to assist a swimmer. The defendant official also had suggested modifications to their emergency action plan involving using visual signals that would improve the effectiveness of emergency response for all lifeguards and therefore was to be implemented even if the plaintiff was not working. The court acknowledged testimony by the defendant that other employees may have had to assume extra duties because of the plaintiff’s deafness, but this was insufficient to grant summary judgment. Evidence suggested that the duties to be reassigned might have been marginal ones, such as answering general questions from patrons (other employees might have had primary responsibility for this duty), using a megaphone or radio, handling first aid needs, and working at the slide (a popular rotation for other lifeguards).

Olsen v. Capital Region Med. Ctr., 713 F.3d 1149 (8th Cir. 2013). Affirming summary judgment for the employer, the court held that, despite a number of reasonable accommodations provided by the employer, a mammogram technologist with continuing, unpredictable epileptic seizures that caused loss of orientation and muscle control was not qualified for her job. The job included positioning patients in the mammography machine, operating the radiographic equipment, and tending to the patients’ physical and psychological needs. Between July 2008 and August 2010, Olsen had 14 seizures at work, including some in which she suffered serious injuries and two seizures in the presence of patients receiving mammograms. During this period, the defendant provided a number of reasonable accommodations to eliminate environmental triggers, including removing mold, investigating cleaning agent ingredients, having other technicians handle patients who wore heavy perfume, installing anti-glare filters on lights, eliminating scrolling from computers, covering x-ray films to reduce brightness, permitting Olsen to wear sunglasses, and educating Olsen’s coworkers about epilepsy and how to treat someone having a seizure. Despite these accommodations, the seizures continued and the defendant ultimately fired her. The court noted that the defendant had clearly engaged in an interactive process with Olsen and attempted numerous reasonable accommodations, but nothing had eliminated the seizures. Olsen claimed the defendant could have provided her with intermittent rest as a reasonable accommodation, but produced no evidence that this would have eliminated the seizures and permitted her to perform her essential functions, including the ability to ensure patient safety. Her continued periods of incapacitation, despite the accommodations, made her unqualified.

4. Leave

Wilson v. Dollar Gen. Corp. , 717 F.3d 337 (4th Cir. 2013). Affirming summary judgment for the employer, the court held that an employee who was unable to provide evidence that he would have been able to return to work at the end of a requested two-day extension of leave was not qualified for his job processing inventory and loading merchandise. Five months after starting

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work with the defendant, the plaintiff (who was blind in one eye) developed a serious inflammatory condition in his one remaining eye. The defendant granted him an initial six-week leave of absence to obtain treatment, followed by two additional weeks. The plaintiff’s doctor released him to return to work on April 6, but that day his vision remained blurry. The plaintiff immediately notified the defendant that he was still having significant vision problems, and the company granted him one more day of leave. The plaintiff’s condition worsened, and he went to the emergency room at the local hospital. From the hospital he drove to the defendant’s worksite with a discharge letter saying that he could return to work in two days. Since the plaintiff acknowledged he could not return to work that night as previously agreed, the company terminated him, stating that he could reapply after his condition improved. The court found the plaintiff’s testimony that he was able to look for work within 10 days of his termination to be insufficient evidence that he could have performed his essential functions if he had been given the two additional days of leave requested.

Basden v. Professional Transp., Inc. , 714 F.3d 1034 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that Basden failed to produce evidence that her request for a 30-day leave of absence would have permitted her to return and perform the essential functions of her position on a regular, reliable basis. Basden, a train dispatcher, was permitted seven unexcused absences under company policy, but an eighth could result in termination. She was given a preliminary diagnosis of multiple sclerosis after her third absence but could not get an appointment with an MS specialist for several months. She provided doctor’s notes for all her absences. A month before her appointment with the MS specialist, Basden requested a 30-day leave of absence due to complications from MS. By this time she had accumulated six unexcused absences. Under company policy any employee with at least a year’s tenure could request an unpaid 30-day leave of absence, but Basden was a little over a month shy of meeting this requirement. The request was denied, and when she was unable to return to work, she was fired. The court noted that Basden received a confirmed diagnosis of MS after her late June appointment with a specialist and began taking medication in the weeks after that. The record did not show, however, that the medication immediately alleviated her symptoms such that she would have been able to return to work without further absences. Basden testified that her condition got worse after she left the defendant but then eventually stabilized. The record also indicated that, during the short time she worked in her next job, she required two weeks of leave because of her MS. Therefore, the court concluded that the evidence did not show that a combination of the 30-day leave requested and medication would have permitted the essential job requirement of regular, reliable attendance.

5. Reassignment

EEOC v. Ford Motor Co . , 2014 WL 1584674 (6th Cir. Apr. 22, 2014). Reversing summary judgment for the employer, the court stated that although an employer ordinarily may choose from among several reasonable accommodations, the employer cannot choose reassignment when it is possible to provide a reasonable accommodation in the employee’s current job without causing an undue hardship. As a result of irritable bowel syndrome, Jane Harris requested authorization to telework on an as-needed basis as a reasonable accommodation. Ford denied the request and proposed several alternative accommodations, which Harris declined; eventually it terminated Harris. Among the reasonable accommodations proposed by Ford was to find a

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different job that could better accommodate Harris’s wish to telecommute. The court noted that there was no evidence that Ford actually had a vacant job to which Harris could have been reassigned and which would have permitted her to telework. Furthermore, since the court found that teleworking might have been feasible in Harris’s current job, reassignment would have been inappropriate.

Rorrer v. City of Stow , 743 F.3d 1025 (6th Cir. 2014). Reversing summary judgment for the employer, the court held that there was a genuine issue of material fact whether a firefighter who developed monocular vision could be reassigned to a fire inspector position. The defendant maintained there were no vacancies when the plaintiff requested reassignment, but evidence showed that another employee was getting a promotion, thereby creating a vacancy. The defendant also argued that the position at issue was not really a different position but rather a firefighter position (for which the defendant maintained the plaintiff was not qualified because he could not drive a fire vehicle during an emergency) with different job duties. The court found this argument “lack[ed] merit” because the purpose of the fire inspector position was to prevent fires, not fight them. Furthermore, the defendant did not dispute that the plaintiff had the “expertise, training, and certification” to carry out the new job duties. Although the defendant also pointed to the job description for a fire inspector, which listed the firefighter job functions (including driving vehicles during an emergency), the court concluded that a simple reasonable accommodation would have been to modify its job description for the plaintiff, which would not have required any change in the actual duties he would have had to perform as a fire inspector.

Henschel v. Clare Cnty. Rd. Comm’n , 737 F.3d 1017 (6th Cir. 2013). Affirming summary judgment for the employer, the court held that an employer was not required by the ADA to violate a collective bargaining agreement and that a union was not required to remove a more senior employee from his position in order to provide a reassignment to Henshel, an excavator operator. As the result of an above-the-knee leg amputation necessitated by a motorcycle accident, Henshel was no longer able to haul an excavator to the worksite. The union had considered removing a more senior employee to create an opening in a job that Henschel was qualified to perform, but decided against this. The CBA did not permit the employer to unilaterally reassign an employee into a new job, and the ADA did not require the defendant to create a job so that it could reassign Henschel.

Koessel v. Sublette Cnty. Sheriff’s Dep’t , 717 F.3d 736 (10th Cir. 2013). Affirming summary judgment for the employer, the court held that a deputy sheriff failed to identify an appropriate vacancy to which he could have been reassigned. The plaintiff had a stroke, and based on a psychological fitness-for-duty examination, he was removed from his position and placed temporarily in an emergency management position. After the county cut funding for this position, there were no other vacant positions to which the plaintiff could have been reassigned.

6. Working at Home or from a Remote Location

EEOC v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014). Reversing summary judgment for the employer, the court held that there was a genuine factual issue whether telework was an effective reasonable accommodation for a resale steel buyer. As a result of irritable bowel syndrome, Jane Harris requested authorization to telework on an as-needed basis as a reasonable

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accommodation. Ford denied the request and proposed several alternative accommodations, which Harris declined; eventually it terminated Harris. While the court acknowledged case law that held that telework was rarely an effective reasonable accommodation, it also observed that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded” as a result of technological developments. Although Harris had work problems when she had a flex-time arrangement for her disability, telework did not raise the same concerns because she would work normal business hours. The problems Harris experienced while she worked a flex-time schedule all occurred because she was working during non-core hours, not because she was working from home. Furthermore, it was Ford that prohibited Harris from working at home during core hours, leaving her no choice but to work during non-core hours when she could not consult with colleagues. With telework, Harris would be available for an emergency or to join in an impromptu meeting during core hours. Similarly, to the extent coworkers had to take on some of Harris’s job duties, it was because she was not working during normal work hours. Mistakes made by Harris because she could not consult after hours with others would not have occurred if she had been working a regular schedule from home. Ford offered no evidence that telework was “inherently problematic.” Finally, the court rejected Ford’s argument that telework was not a reasonable accommodation given Harris’s attendance problems, noting that her attendance issues were the result of her disability. An employer cannot deny a reasonable accommodation that could eliminate performance problems created by a disability.

7. Changing Supervisors

No new cases added.

8. Stress-Free Job

No new cases added.

9. Workplace Free of Chemical Irritants

No new cases added.

10. Monitoring Medication and Effects of Disability

No new cases added.

11. Modifying Workplace Policies

No new cases added.

12. Job Coaches/Assistance from Other Employees

No new cases added.

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13. Benefits and Privileges of Employment

Feist v. Louisiana, 730 F.3d 450 (5th Cir. 2013). An employee requesting a reserved on-site parking space as a reasonable accommodation does not have to show how the accommodation will enable her to perform her essential functions. Nothing in the text of the statute suggests that there must be a nexus between a requested reasonable accommodation and the essential functions of an employee’s position. Providing the requested accommodation could be viewed as making the employee’s workplace “readily accessible to and usable by” her, one of the statute’s examples of a reasonable accommodation. The court cited the EEOC regulations, which state that reasonable accommodation includes modifications that enable an employee to enjoy equal benefits and privileges of employment. Also, the appendix to the regulations notes that providing a reserved parking space may be a reasonable accommodation.

14. Burdens of Proof

Majors v. General Elec. Co. , 714 F.3d 527 (7th Cir. 2013). Affirming summary judgment for the employer, the court held that because the plaintiff failed to show that she could perform the essential functions of her position with a reasonable accommodation, the employer was not required to show that her proposed accommodation would cause an undue hardship. The plaintiff was denied a promotion because she was prohibited from lifting over 20 pounds due to a work injury. The court held that an essential function of the position required lifting more than 20 pounds. As a result, it rejected the plaintiff’s suggested reasonable accommodation that another employee could lift these heavy objects instead. Since the plaintiff’s proposed accommodation was unreasonable as a matter of law, the defendant was not required to show that it caused an undue hardship.

15. Sign Language Interpreters

Keit h v. County of Oakland , 703 F.3d 918 (6th Cir. 2013). Reversing summary judgment for the employer, the court found sufficient evidence to create a genuine issue of material fact as to whether providing sign language interpreters for staff meetings and further classroom instruction was objectively reasonable for a deaf individual applying for a lifeguard position at a wave pool. The plaintiff never requested sign language interpreters to perform his essential functions, and he presented testimony by several experts that the ability to hear is not necessary for someone to perform the essential functions of a lifeguard. Testimony by the doctor who conducted the post-offer examination and by aquatic safety consultants that full-time interpreters would be necessary to perform the essential functions was insufficient to grant summary judgment, given that these individuals had no direct knowledge, education, or experience regarding deaf individuals serving as lifeguards. The court noted evidence of the plaintiff’s successful completion of his lifeguard training courses as demonstrating the effectiveness of providing interpreters for classroom instruction. The court observed that sign language interpreters are listed as a possible form of reasonable accommodation in the statute and concluded that provision of interpreters could easily be deemed reasonable when they would be needed only on occasion, such as for staff meetings and training. Moreover, given the limited situations in which the accommodation would be needed, the benefit of the accommodation would appear to be proportional to its cost. Finally, the defendant had not argued that providing interpreters would pose an undue hardship.

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E. Drug and Alcohol Use

Shirley v. Precision Carparts Corp., 726 F.3d 675 (5th Cir. 2013). After overdosing on Vicodin, the plaintiff entered an in-patient treatment program that required him to abstain from opioid use before returning to his extrusion press operator position. After the plaintiff prematurely checked out of the program, the employer notified him that his failure to complete it was grounds for dismissal. The employer permitted him to reenter the program, but terminated him after he again prematurely checked out of the program. The plaintiff argued that he was not excluded from the definition of “qualified individual” under section 12114(a), even though he was “currently” engaging in the illegal use of drugs for purposes of that subsection, because the decision to terminate him was not “made on the basis of [his illegal drug] use,” but rather on the basis of his failure to complete the drug treatment program. The court rejected this argument because the requirement to complete in-patient treatment was itself based on his illegal drug use. In the alternative, the plaintiff argued that he was exempted from the section 12114(a) exclusion under section 12114(b)(2), because he was “participating in a supervised rehabilitation program,” and had not engaged in illegal drug use for eleven days at the time of his termination. The court rejected this argument because use of the section 12114(b)(2) safe harbor requires a “significant period of recovery” and sufficient additional facts to justify a reasonable belief that drug use is no longer a problem for the individual in question, rather than “mere entry” into a rehabilitation program.

F. Defenses

1. Direct Threat

a. Threat to Self

No new cases added.

b. Individualized Assessment Required

No new cases added.

c. Threats of Violence

No new cases added.

2. Undue Hardship

EEOC v. Ford Motor Co. , 29 A.D. Cas. (BNA) 1140, 2014 WL 1584674 (6th Cir. Apr. 22, 2014). Reversing summary judgment for the employer, the court found no evidence that permitting an employee to telework as much as four days a week would cause an undue hardship. As a result of irritable bowel syndrome, Jane Harris requested authorization to telework on an as-needed basis as a reasonable accommodation. Ford denied the request and

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proposed several alternative accommodations, which Harris declined; eventually it terminated Harris. The court found sufficient evidence that teleworking might have been a reasonable accommodation. It also concluded that Ford had not met its burden on summary judgment to show that this accommodation would have caused an undue hardship. Although a reasonable accommodation could cause some hardship to an employer, the ADA requires a higher standard than that to justify a denial. Thus, while it would have entailed some cost to set up a home workstation for Harris, the cost would likely have been “de minimis,” given Ford’s financial resources and the size of its workforce. Furthermore, Ford had a written telework policy that agreed to pay such costs for all employees approved to telecommute.

Rorrer v. City of Stow , 743 F.3d 1025 (6th Cir. 2014). The defendant’s undue “burden” defense mirrored its argument that driving a fire apparatus under emergency lights was an essential function of a firefighter. After finding that this function might not be essential and that it would have been possible to reassign the function (as a marginal function) to another firefighter, the appeals court concluded that there was insufficient evidence to support the district court’s grant of summary judgment on the grounds that excusing a firefighter who developed monocular vision from driving an emergency vehicle would cause an undue hardship.

McMillan v. New York , 711 F.3d 120 (2d Cir. 2013). Reversing summary judgment for the employer, the court held that the record did not support a finding of undue hardship as a matter of law regarding two possible accommodations to address the plaintiff’s disability-related tardiness. The plaintiff, a city case manager, proposed being allowed to work past the normal 6 p.m. quitting time or being given approval to work through his lunch hour in order to “bank” time to use when he was late arriving at the office due to the side effects of medication taken for his schizophrenia. The defendant denied the plaintiff’s request to work past 6 p.m., stating that he could not work without a supervisor present. The defendant contended that requiring a supervisor to work past 6 p.m. would be an undue hardship, but the court noted that the record did not address times when it appeared that the defendant had permitted the plaintiff to work unsupervised. The plaintiff claimed that he often worked past 7 p.m., and it seemed that the plaintiff worked unsupervised when he made home visits to clients. Regarding the plaintiff’s proposal to work through lunch, the appeals court disagreed with the district court’s conclusion, without any analysis, that this would have caused an undue hardship. The court noted the city’s policy of permitting supervisors to approve an employee’s request to work through lunch and concluded that such pre-approval did not seem to require significant difficulty or expense.

3. Job-Related and Consistent with Business Necessity

EEOC v. Walgreen Co., -- F. Supp.2d --, 2014 WL 1410311 (N.D. Cal. April 11, 2014). Denying summary judgment for the employer, the court held that factual issues exist as to whether the employer failed to accommodate a diabetic employee who was discharged for violating the stores “anti-grazing” policy during an alleged hypoglycemic attack. The court stated, “Here, whether it was a business necessity to treat [plaintiff] the same as other employees who had been fired under the anti-grazing policywhen [plaintiff] claims taking the chips was necessitated by her medical condition is a question of fact for the jury.”

4. Other Federal Laws

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Samson v. Federal Express Corp. , 746 F.3d 1196 (11th Cir. 2014). Reversing summary judgment for the employer, the court held that the Federal Motor Carrier Safety Regulations (FMCSRs) do not require a mechanic who will not engage in interstate driving to have a commercial driver’s license (CDL). Therefore, Samson’s failure to pass the medical examination (due to insulin-dependent diabetes) required to get a CDL was not a legitimate reason to deny him the position. The Federal Highway Administration’s guidelines interpreting the regulations clearly state that intrastate drivers of an interstate motor vehicle are not subject to the FMCSRs except in one circumstance that was not relevant here. The defendant claimed that test driving vehicles was an essential function of the mechanic position and that it was required to comply with the FMCSR, but the court found that any test driving by a mechanic would not include the interstate transport of property or passengers that triggers coverage by the FMCSRs. An opinion letter issued by the Chief Counsel for the Federal Motor Carrier Safety Administration made a similar determination involving almost identical hypothetical facts.

H. Exams and Inquiries

Owusu-Ansah v. Coca-Cola, 715 F.3d 1306 (11th Cir.), cert. denied, 134 S. Ct. 655 (2013). The plaintiff, a customer service representative at a call center, generally worked from home but was required to report to the center for certain meetings. During one such meeting with his supervisor, the plaintiff raised several incidents of alleged mistreatment by his managers and coworkers over the course of his employment and, according to his supervisor, became agitated, banged his hand on the table, and said that someone was “going to pay for this.” Concerned that the plaintiff had made a threatening statement (even though he was not asked for his version of what happened in the meeting), the defendant requested that he meet with an independent psychologist who specialized in crisis management and threat assessment. After meeting with the plaintiff, the psychologist expressed to the defendant that there was a “strong possibility that [plaintiff] was delusional” and recommended that he be placed on paid leave to allow for further evaluation. The psychologist also recommended that the plaintiff undergo a psychiatric fitness-for-duty examination. Addressing a matter of first impression, the Eleventh Circuit held that an individual need not prove that he is “disabled” to challenge an alleged unlawful disability-related inquiry or medical examination. However, despite finding that the plaintiff could assert a claim, the court found that he failed to rebut the defendant’s showing that the examination was job related and consistent with business necessity, i.e., that management had “a reasonable, objective concern about [his] mental state, which affected job performance and potentially threatened the safety of its other employees.” In reaching this conclusion, the court noted that although the plaintiff generally worked from home, he had access to the call center and was required to report there for meetings. Because the defendant had the plaintiff’s supervisor’s account of the plaintiff’s conduct and statements at the meeting and had received observations and recommendations from the consulting psychologist, the defendant “had sufficient objective evidence that [the plaintiff] had a potentially dangerous mental condition.”

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EEOC v. United States Steel Corp., 2013 WL 625315 (W.D. Pa. Feb. 20, 2013). EEOC challenged the defendant’s policy, which had been negotiated with the employees’ union, of randomly testing probationary steelworkers for drugs and alcohol, arguing that medical examinations of employees must be job-related and consistent with business necessity (i.e., an employer must have a reasonable belief that a particular employee may pose a direct threat because of a medical condition). After considering the relevant legal authority and legislative history behind the ADA’s prohibition on medical examinations or inquiries, as well as the nature of the testing policy in the context of a busy steel factory, the court found that the defendant’s policy of randomly testing probationary employees was job-related and consistent with business necessity within the meaning of §12112(d)(4)(A). In reaching this conclusion, the court relied on evidence that probationary employees work closely with molten coke that reaches a temperature of more than 2,000 degrees Fahrenheit, and, therefore, must be alert at all times. The court also noted that the drug and alcohol tests were practical and fair because protective gear worn at the plant made it impossible to otherwise determine if an employee was intoxicated while working. Finally, the court reasoned that the defendant’s policy of randomly testing employees for drug and alcohol abuse functioned to deter employees in safety-sensitive positions from working under the influence.

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