In Case You Missed It This Summer

I've been busy this summer and am catching up (for my dear readers) with important decisions from the Supreme Court and Sixth Circuit. 

 In June, the Supreme Court held that retirees are not  “qualified individuals” under the ADA when they neither hold nor desire a job whose essential functions they can perform with a reasonable accommodation.   Stanley v. City of Sanford, 145 S. Ct. 2058  (2025).  The plaintiff was hired in 1999.  The employer’s policy of providing medical benefits until age 65 changed in 2003 to only two years when an employee retired with a disability before age 65 and before achieving 25 years of service.  The plaintiff retired due to a disability prior to age 65 and after only 19 years of service. The ADA statute “made it unlawful to ‘discriminate against’ someone who ‘can perform the essential functions of’ the job she ‘holds or desires." The Court construed "those [present tense] verbs to suggest that the statute does not reach retirees who neither hold nor desire a job at the time of an alleged act of discrimination.”  In addition, the suggested reasonable accommodations in the statute involve current employees or applicants, not retirees.  Finally, the retaliation provision protects any individual, not just qualified individuals, suggesting different standards would apply.

In August, the Sixth Circuit Court of Appeals affirmed the employer’s summary judgment on a sexual harassment, retaliation and racial discrimination claim.  Bivens v. Zep, Inc.  147 F.4th 635 (6^th Cir. 2025).   The plaintiff had been asked on a date by a client.  When she reported it to her supervisor, the client was reassigned away from her to avoid a repeated uncomfortable situation.  Later, the Company laid off sales employees, including plaintiff, with territories below a financial threshold.  She could not identify anyone who was hired to take over her territory.   The Court held that employers are not automatically liable for their clients’ or customers’ behavior without some evidence of an intent to discriminate or harass, which was completely absent in this case.   Ellerth liability assumes an agency relationship between the employer and the harasser and that is generally absent when the alleged harasser is a customer. 

In July, the Sixth Circuit reversed an employer’s summary judgment on a retaliation claim where the plaintiff claimed that she was investigated and then fired in retaliation for assisting a co-worker assert her rights under the ADA and be transferred away from her discriminatory supervisor.  Gray v. State Farm Mutual Auto. Ins. Co.,  145 F.4th 630 (6^th Cir. 2025).   When her co-worker’s discriminatory supervisor filled in for the plaintiff’s supervisor shortly after the protected conduct, he launched an unprompted and unprecedented investigation into the plaintiff’s time cards by comparing them to her badge swipes and computer use.  No other employee was investigated – despite similar discrepancies -- and the plaintiff was ultimately fired for time card abuse.   The Court agreed that the evidence aligned with its precedent holding that “employees can establish prima facie causation by showing that their employer began scrutinizing them more heavily shortly after they engaged in protected activity, and then used its findings to justify termination.” The plaintiff was able to show that the discriminatory supervisor knew of her assistance to her co-worker and his retaliatory intent under a “cat’s paw” theory of vicarious liability.  While the employer may have avoided direct liability under an honest belief theory, the supervisor’s actions could not. A “supervisor does not have to lie in order to be biased. As we have repeatedly recognized, a supervisor can cause an employee’s termination by reporting true yet selective information.”  Moreover, although “an employer can escape liability by conducting ‘an in-depth and truly independent investigation’ into an otherwise biased report,  . . . when a supervisor reports true but selective information, an investigation will always confirm the supervisor’s allegation.”  In this case, the employer failed to take the plaintiff’s complaint of retaliation seriously or to compare her misconduct to other employees before terminating her employment.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Finds Adult Sibling Could be "Child" Under In Loco Parentis FMLA Theory and False Unemployment Compensation Answers Could Be Retaliatory

Last month, the Sixth Circuit Court of Appeals reversed an employer’s summary judgment and remanded the case for the trial court to determine whether the plaintiff employee could qualify as in loco parentis for her adult sister and, thus, be eligible for FMLA leave. Chapman v.  Brentlinger Enterprises, No. 23-2582 (6^th Cir. 12/13/24).   It also remanded on the grounds to determine whether the employer retaliated against her for seeking FMLA leave and for being associated with an individual with a disability based on it, among other things, providing false information to dispute her unemployment compensation claim and telling her to choose between her job and her sister.   It affirmed that the employer did not retaliate for threatening to seek Rule 11 sanctions for pursuing a frivolous FMLA claim and for imposing $85/day fines for failing to send the mandatory COBRA notice.

According to the Court’s opinion, the plaintiff employee’s sister, who lived in Louisville, was dying from cancer and the plaintiff (who worked in Columbus) was helping her other sister (who apparently lived in another state) to care for her.  Her request for FMLA leave was denied because she was not the parent.  However, she was given paid and unpaid leave and her work schedule was reduced to permit her more time off.  That being said, she alleged that the HR Representative indicated that she should choose between her sister and her job.  When her healthy sister’s flight was delayed, she claimed to have attempted to contact her employer on Sunday night to let them know that she would be late on Monday.  However, the text was not received until mid-Monday morning, after the employer attempted to call her when she was late reporting to work, and she was terminated.  Her sister died two days later.  The employer apparently informed the unemployment office that she abandoned her job, disenrolled her from the medical plan the next month, but then failed to send her a COBRA notice.  When her lawyer threatened to file suit under the ADA, the employer’s lawyer threatened to see sanctions under Rule 11.

The trial court agreed that the FMLA does not allow for time off to care for a sibling and could not be “in loco parentis” unless that parental relationship or the serious illness began while the sibling was a minor. Otherwise, the list of enumerated relationships covered by the FMLA would be meaningless.  The court explained that “if merely caring for someone with a serious ailment could create an ‘in loco parentis’ relationship, then anyone who took time off to care for a seriously ill nephew, cousin, or friend would have an ‘in loco parentis’ relationship with that person.”

 However, the appellate court found that it was an issue of fact. In examining the FMLA, it concluded the statute and regulations to be ambiguous about when the parental relationship must have begun.  It found no requirement that it must begin before the onset of the serious illness.  It then looked at common law decisions (concerning mostly cases about survivorship benefits) and found that a cousin, sibling or aunt could qualify as a parent depending on the circumstances even though the relationship did not begin until adulthood. 

While the FMLA tells us what protections are available for in loco parentis parents and their children, this case hinges on whether [the plaintiff] was an in loco parentis parent at all. The FMLA neither defines “in loco parentis” nor specifies how or when these relationships form. We know that the FMLA contemplates in loco parentis relationships that involve children who are eighteen or older. After all, the FMLA states that an employee, including an in loco parentis parent, can take time off to care for a sick child over the age of eighteen if that child has a disability that renders them incapable to care for themselves. Id. § 2611(12)(B). But in that situation, the text does not say whether the in loco parentis relationship or the child’s disability must have started during the child’s minority. The text also does not specify whether the in loco parentis relationship must predate the child’s incapacity. Resolving this case requires us to answer those questions.

 . . .

we drew an analogy to legal adoption, which is not limited to minors. Id. The definition of an in loco parentis relationship from the Cyclopedia of Law and Procedure centered on adoption: “A person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption.” . . . .

 . . . [The employer] argues that Niewiadomski—which also surveyed the common law—weighs in its favor because there, we observed that an in loco parentis relationship “is essentially different from the relationship of brother and sister,” which does “not include the legal obligations existing between parent and child.”  . . .  But that observation just restates an obvious point: when a person acts in loco parentis to another, they take on duties of care and support that surpass what is typically shown toward a sibling. The observation does not rule out the possibility that a sibling could take on those duties. And Niewiadomski explicitly declined to rule on the question of whether a deceased cousin’s adulthood foreclosed the possibility that an in loco parentis relationship formed when his slightly older cousin took him in.

 . . . .

Therefore, reading the FMLA against the backdrop of the common law, we conclude that in loco parentis relationships can form between adults, including adults who also happen to be siblings. Contrary to the district court’s reading, the “child” in the in loco parentis relationship need not be a minor at the time the relationship forms, have developed a debilitating condition as a minor, or have developed that condition before the relationship formed. Indeed, under the common law, a debilitating condition was not a requirement at all.

It also concluded that she had alleged sufficient facts to warrant reconsideration, although it was still unclear whether she would qualify under the common law standard as a parent instead of as a sibling who shared care-giving duties with another sibling. “The district court’s concern assumes that ‘merely caring for someone with a serious ailment’ creates an in loco parentis relationship. As we describe later, that’s not so; it requires a more robust relationship.”    The court’s decision indicates that:

Between June 20 and 25, [the plaintiff] used her allotted paid time off to travel to Kentucky to take care of [her dying sister]. [She] alleges that she supported her sister financially by paying some portion of her bills and buying groceries and other essential household items. She also cooked her sister’s meals and hand fed her, helped her use the bathroom, cleaned her up when she was incontinent, brushed her hair and teeth, and took care of her apartment by cleaning, taking out the trash, and doing laundry. She managed some of her sister’s medical needs by administering over-the-counter medications, using massage tools and hot-and-cold packs, and shifting her around in bed to prevent bed sores. She also provided emotional support. [Her] other sister  . . . . provided similar care to [the dying sister] during the same period. On some days, [the plaintiff] or [her other sister] took care of [the dying sister] alone, and on others, the sisters divided the responsibilities. [The other sister] was [the dying sister’s] medical power of attorney. When [the plaintiff] ran out of paid days off, [the employer] allowed her to take unpaid leave at its discretion, but it was unclear for how long.

A number of factors remain to be explored.

The touchstone of this inquiry is intention. As Lord Cottenham observed in synthesizing Lord Eldon and Sir Grant’s definitions, “the principal value” in the definition of in loco parentis is “the intention, rather than . . . the act of the party.”  . . .  Accordingly, we ask not just whether a person has taken on the role of a parent by “assuming obligations” of a parental nature, but also whether they have done so “with the intention” of serving as a parent.  . . .  It’s not enough that a person has provided for another as a parent might, though that “raises a strong inference that the person had assumed the character of a parent.” Id. The person “must have intended to assume” that role.  . . . . Other circuits examining the common law agree, emphasizing that “the loco parentis relationship is such that it must reside in the minds and hearts of the parties involved.”

But how do we know adult parties intended to assume a parental relationship? In some cases, we have relied on direct evidence that the parties thought of themselves as parent and child, including their internal communications and statements to others that they perceived themselves as being akin to a “mother” or “son.” Mainly, however, courts have relied on indirect evidence to discern the parties’ intent. Courts look for “objective manifestations” of a parent-child relationship, including “the kind of service done and the kind of thing given.” Banks, 267 F.2d at 538–39.

                   . . .

Juxtaposing two of our precedents provides helpful guidance. In both Niewiadomski and Thomas, an adult relative—who either had no immediate family or was estranged from immediate family—came to live with an older relative (though the cousin in Niewiadomski was only a few months older, while the aunt in Thomas was about two decades older).  . . . The cases have many similarities. We noted in both that the alleged in loco parentis parent took her cousin or nephew into her home and provided lodging, a seat at the table for meals, medical care, and clothing.  . . . The alleged in loco parentis children also accompanied the families on vacations, exchanged gifts on the holidays, and contributed to household chores.  . . .  And in both cases, the younger relatives later served in the military and designated their aunt or cousin as the beneficiary of their statutorily provided military life insurance, identifying the relationship as parental . . .  Both servicemen died while serving in the military, and the cousin in Niewiadomski and aunt in Thomas sought to collect as the in loco parentis parent.  . . .

Yet in Niewiadomski we held there was no in loco parentis relationship, while in Thomas, we held there was.  . . . This distinction rested on several key factors. Perhaps most significant, we focused on the direct evidence of how the relatives thought of one another. Recall that the “intention” to take on a parental role is critical, so in Niewiadomski, the older cousin’s own testimony that they referred to one another as “brother” and “sister” and that “she considered the insured as a brother, and not as a child” was the “most conclusive factor” in the case.  . . . . Contrast that with Thomas. While in the army, the nephew sent his aunt “intimate letters of affection,” including a “so-called ‘Mother-gram’” on Mother’s Day, concluding with: “You are a wonderful Mother.”

The Court also remanded to reconsider the retaliation claim.  The plaintiff alleged that co-workers with poor attendance were not terminated under similar circumstances and, if that she was not fired for being absent but in retaliation for having requested FMLA leave (even if she ultimately were not eligible for FMLA leave).   Also, the employer provided false information to oppose her unemployment compensation claim by claiming that she abandoned her job when it was admitted that she was fired and that she had not quit or abandoned her job.

A jury could find that making false statements to an unemployment authority is a “plainly adverse repercussion on [the plaintiff] and her family” because it can result in “the loss of income associated with unemployment benefits.”  . . .  The false statements, or threat thereof, may require a plaintiff to choose whether to “seek vindication” of her rights or “risk a former employer’s intentional efforts to . . . stymie her receipt of income.” Id. And they could reasonably dissuade her from choosing the former.

Interestingly, it did not find the threat of Rule 11 sanctions to be retaliatory because lawyers are supposed to send such a letter before filing a Rule 11 motion.

The Court also remanded the plaintiff’s ADA claim.  Although she was not entitled to leave under the ADA to care for her sister, it would violate the ADA to fire her because of her association with her dying sister.   She alleged that the HR Representative had told her that she should choose between her sister and her job and she was fired when she was late returning to work from caring for her sister.  She alleged that the employer made a discriminatory assumption that her sister was distracting her from her job duties. “The ADA thus prevents an employer from terminating an employee based on “unfounded fears that [the employee] would be distracted at work on account of” a loved one’s disability."

Finally, the Court affirmed the $85/day fine for failing to provide the plaintiff with the mandatory COBRA notice.  It maximum fine is $110/day. “ The district court reasoned that Chapman had not produced evidence that MAG violated COBRA in bad faith, but that she had shown she was “significantly prejudiced by the lack of notice.”  . . .  Because she did not receive notice of her coverage options under COBRA, Chapman did not acquire health insurance until May 2020. Without coverage, she delayed treatment for a condition she later discovered was malignant skin cancer.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Be Careful What You Ask For: Employees With Disabilities Lost Two Cases Last Week.

 In the vein of “be careful what you ask for,” two different courts last week ruled against employees with medical issues.  In the first case, an employee with a serious disability and who required a medical leave of absence admittedly asked to be laid off so that he could received enhanced unemployment compensation during COVID because the employer did not have a paid leave program.  Bair v. Crystal Glass, No. 24-1390 (6^th Cir. 12/3/24).    Although he had been told that he could not return to work without a medical release from his physician, he never provided one and, instead, sued under the ADA.  The court summarily ruled against him because he received the accommodation that he requested. 

In the second case, the employee’s FMLA approval and accommodation agreement for his sleep apnea and narcolepsy had expired years earlier and he had failed to update them with a medical statement from a practicing physician because his former physician had retired. Price v. Cellco Partnership, 2024-Ohio-5697.  When he requested July 2022 additional breaks to deal with stress and sleep deprivation, his request was denied because he could not support it with a physician’s statement.  He did not request any other accommodations or leave before resigning without notice in May 2023. “He also admitted that he did not take any other actions to avoid quitting on May 11, 2023.”  Indeed, he still had not found another physician as of the time of the unemployment hearing.   As a result, his claim for unemployment benefits was denied on the grounds that he quit his employment without a good reason.

The court rejected his argument that it would have been futile to ask for another reasonable accommodation:

[He] also asserts that asking whether alternative/comparable positions were available would have been futile because finding a position that could be performed while operating under only 30 minutes of nightly sleep would have been difficult or even impossible.  . . .  Nevertheless, the onus was on [him] to make the request. The record is clear—indeed, [he] concedes—that he did not. Thus, the Commission’s finding that [he] voluntarily quit his job without just cause is supported by competent, credible evidence, and he is not entitled to unemployment compensation benefits. . . .

In sum, as the trial court and the Commission found, an ordinarily intelligent person would have inquired whether comparable jobs that could accommodate his medical conditions were available (and then not being offered any such opportunities, if any) prior to quitting his position. In addition, an ordinarily intelligent person would have pursued a potential FMLA-related leave more diligently by taking additional steps to obtain the required medical documentation for such a leave (as [he] had done in the past). Competent, credible evidence shows that [he] did not do either—indeed, [his] own testimony readily shows this. Thus, competent, credible evidence shows Price voluntarily abandoned his job without just cause. Therefore, he is not entitled to unemployment compensation benefits.

 . . .

There is no evidence in the record that [the employer] was planning on discharging [him]. Indeed, [he] himself testified that no one from [the employer] told him he was going to be terminated; nor was he ever asked to resign in lieu of being discharged . . .

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Disability Discrimination Claim When Employee Refused to Submit Reasonable Accommodation Request

Yesterday, in an instructive decision, the Sixth Circuit Court of Appeals affirmed an employer’s summary judgment on disability discrimination and failure to accommodate claims based on the former employee’s withdrawal/failure to participate in the interactive process.  Wilson v. ODMAS, No. 23-3994 (6^TH Cir. Aug. 14, 2024). The Court agreed that the employee failed to show that she proposed a reasonable accommodation when she refused to complete or return forms from her physician confirming the disability and necessity for the requested accommodations of schedule flexibility and telework even though she had previously requested and exhausted FMLA leave and short-term disability.    This was a “critical failure” to participate in, and “voluntary withdrawal” from, the interactive process necessary to prevail on a failure to accommodate claim.  Further, the Court rejected her argument that the employer’s failure to accommodate was a “continuing violation,” and dismissed the remaining allegations since her accommodation requests had been made more than two years before she filed suit and were, therefore, untimely.

According to the Court’s opinion, the employee had several mental health impairments which affected her ability to maintain predictable attendance.  Her job duties involved travelling and working in the office.   She requested and received approval for intermittent FMLA leave.  However, she was placed on a last chance agreement after it was discovered that she had claimed to be working (and was paid) for two days that she required unpaid FMLA leave.   The following year, she exhausted her FMLA leave entitlement.  She then received and exhausted her lifetime of paid Short-term disability leave.  She then requested a reasonable accommodation for schedule flexibility and telework and was provided with the forms for her and her physician to complete.  Believing that it was a waste of time based on prior denial of accommodations, she did not complete or return the forms or exercise any appeal rights.  In July, she called off sick without sufficient sick leave, in violation of her Last Chance Agreement.  She was asked for a written explanation of her absence, but she refused to provide one.  A pre-termination hearing was held in November 2018, but she refused to attend and was fired the following month. She filed suit two years later.  

Although the claims were brought under the Rehabilitation Act, the Court applied standards from the  ADA.  She alleged that she was fired for absences that would not have occurred if her disability had been accommodated.  This disability discrimination claim required her to prove that she requested or proposed a reasonable accommodation.

But even if [she] satisfied the first four factors, the [employer] would not fail to provide the necessary accommodation merely by declining to provide one automatically at [her] request. Instead, [her] request for accommodation would mark the beginning of an “interactive process” to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations” that “requires communication and good-faith exploration of possible accommodations. . . .

Before the [employer] must accommodate, [she] needs to first provide “a proper diagnosis of her disability and requested specific accommodation.”  . . . If she instead “voluntarily withdraws from the interactive process based on [the employer’s] request for verification, [she] fails to show that the [employer] denied her requests for accommodations.”  . . . And if [she] fails “to provide requested medical documentation supporting an accommodation,” that “precludes a failure to accommodate claim.”  . . .

Here, when [she] requested an ADA accommodation, the [employer’s] ADA coordinator asked her to fill out paperwork to describe her requested accommodation and to show physician support for it. But [she] refused. She claims that her FMLA and short-term disability forms should suffice because they were “signed by her physician” and “precisely describ[e] the nature of her disability.” . . .

These documents, however, only support the FMLA leave and short-term disability leave [she] already received and exhausted, showing no physician support for the ADA accommodations she requested: “reasonable accommodation within [the] area of work schedule, flexibility, and teleworking.”  . . . This deficiency is not some “bureaucratic technicalit[y],”  . . ., or a bad-faith refusal by the [employer] “to participate in the interactive process,”  . . . . It is a critical failure by [the plaintiff employee] to carry her burden of providing the [employer] “with medical documentation supporting [her] accommodation[s’] necessity,”  . . . And this failure amounts to a voluntary withdrawal that precludes her claim that the [employer] failed to accommodate her.

The Court refused to blame the employer for the breakdown in the interactive process even though the plaintiff subjectively believed that it was stacked against her.  Even if she though that 1/6 of the ADA committee was biased against her, she had a right to appeal the denial of any accommodation.  “The [employer] did not cause a breakdown in the interactive process by establishing a process that [she] simply did not like.”

Because she did not file suit until December 5, 2020, the Court would only consider accommodation requests that she made within the prior two years.  However, all 13 of her alleged requests for reasonable accommodation were made more than 26 months earlier.  “She knew the [employer] was not accommodating her before she was terminated on December 3, 2018, so everything in her failure-to-accommodate claim occurred outside the limitations period.”

The Court refused to consider these alleged failures to be a continuing violation of the Rehabilitation Act.

[E]ven if, as [she] alleges, “the consequences of each additional denial are overlapping and cumulative,” . . . .  no activity persisted up to or past her termination date. At that point, she already knew of her injury. So the alleged failures to accommodate occurred outside the limitations period, and [her] federal failure-to-accommodate claim is time-barred.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice.

Sixth Circuit Finds Excellent Customer Service Requirements Doom ADA Claim

 

Last month, the Sixth Circuit affirmed an employer’s summary judgment on claims for disability discrimination and failure to accommodate when, after several options failed, it transferred the plaintiff delivery driver to an open overnight warehouse non-customer facing position after receiving repeated complaints about the plaintiff’s profane and racists outbursts caused by his disability.  Cooper v. Dolgencorp, LLC, No.  23-5397 (6^th Cir. Feb. 15, 2024).   The Court noted that the plaintiff stipulated that excellent customer service was an essential job function and that the plaintiff’s own physician indicated that he required an accommodation (i.e., a constant co-worker to handle the customer serving functions on his route).  The Court noted that “the ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts.” Further, the plaintiff could not identify any open delivery positions which did not require excellent customer service.   Finally, the Court rejected his constructive discharge claim because the employer tried most of his accommodation requests, including medical leave, a seasonal driver-helper and was not deliberately indifferent.  “Although “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge,” . . . that is not the case here.”

According to the Court’s opinion, the plaintiff delivery driver would regularly exhibit ticks and utter profane sexist and racist outbursts while delivery cola and setting up displays inside customer stores.  This lead to complaints about him from the customers and their customers and employees.   His job description required that he provide excellent customer service.   The plaintiff was granted several medical leaves to adjust his medication and to attempt different therapies.  He was also provided with a seasonal helper who could handle the customer-facing roles, but there were still complaints.  His physician indicated that he required a helper in order to perform his customer-facing duties.  Although the plaintiff requested to be transferred to other routes without customer facing duties, there were no vacancies in those routes and one had changed from non-customer facing to customer facing.  As a result, he was offered a vacant overnight warehouse position (with a cut in pay) where he would not have to interact and offend customers.   After working there for a few months, he resigned -- indicating that there were no hard feelings -- because he found another delivery driver job with customer-facing duties where the customers were not offended.    He then filed suit alleging that his warehouse transfer was discriminatory, that he could perform his job without a reasonable accommodation, and that he was constructively discharged. 

The Court agreed that excellent customer service was an essential job function.  First, it was noted in his job description.  Second, the plaintiff stipulated that excellent customer service was an essential job function.

A reasonable jury could not find that [the plaintiff] could provide excellent customer service to [the employer’s] customers in his role as a delivery merchandiser without an accommodation. Of particular importance, [his] own doctor noted that [he] needed an accommodation to perform his job duties. When a plaintiff’s own doctor—not merely the defendant employer— concludes that the plaintiff cannot perform his job without an accommodation, the plaintiff likely cannot establish that he is otherwise qualified to perform the job without an accommodation .  . .  [His] disability, moreover, caused him to vocalize racist and profane words in the presence of others in the stores of [the employer’s] customers. At various times during his employment, [its] customers complained about the language he used while delivering [its]  products. In fact, [he] acknowledges many of the customer complaints made against him in his amended complaint.

His need for a reasonable accommodation was further demonstrated by the medical leaves that he took and his request for a helper to handle the customer-facing aspects of his duties.

The Court rejected his argument that his comments were generally indecipherable because enough of them had been understood by complaining customers.  The Court also rejected his argument that his involuntary sexist and racist comments were not frequent enough to justify the transfer, thus creating

 

a factual dispute remains about the number of complaints customers made against him. It is undisputed, however, that [he] offended [the employer’s] customers at least twice with his use of racist and profane language, and the ADA does not require an employer to tolerate an employee’s repeated inadequate job performance for a certain amount of time before it acts. The specific number of complaints made against [him] is also immaterial because [he] contends that his verbal tics using inappropriate language remained consistent throughout his employment.

The Court also rejected his failure to accommodate claim. The plaintiff failed to identify any open delivery routes without customer facing duties.  While he contended that the Dollywood route had been non-customer facing when he previously drove it, he produced no evidence to dispute that the customer’s system had since changed, making it also a customer-facing route.

“Where the requested accommodation is a job transfer, ‘employers have a duty to locate suitable positions for’ employees with disabilities.”  . . . Still, “this duty does not require employers ‘to create new jobs [or] displace existing employees from their positions . . . to accommodate a disabled individual.’”  . . .  Nor does a reasonable accommodation require employers to eliminate or reallocate an essential job function.  . . . A “reasonable accommodation” under the ADA can include “reassignment to a vacant position.” 42 U.S.C. § 12111(9)(B).

                         . . . .

However, “[a]n employer may reassign an employee to a lower grade and paid position if the employee cannot be accommodated in the current position and a comparable position is not available.”  . . .. And as we explained above, [he] could not perform the delivery merchandiser position without an accommodation, and he failed to propose an objectively reasonable accommodation. Thus, [the employer’s] accommodation, via transfer to a warehouse position, was reasonable.

Finally, the Court rejected his constructive discharge claim.

To establish a claim for constructive discharge, a plaintiff must prove: (1) the employer deliberately created working conditions that a reasonable person would perceive as intolerable, (2) the employer did so to force the employee to quit, and (3) the employee quit.  . . . . Constructive[1]discharge claims require courts to examine “both the employer’s intent and the employee’s objective feelings.”  . . .  [His] claim fails at the second element—he cannot show that [his employer] deliberately created intolerable working conditions with the intention of forcing him to quit.

Each time [he] requested an accommodation from [his employer], the company provided one. For example, after the incident at the Dollar General store in early 2018, [it] adjusted [his] route so that he would not have to service Dollar General stores. And after Cooper submitted a request to be put on a truck with another driver in August 2018, [it] temporarily allowed him to work as a driver helper. Although “a complete failure to accommodate, in the face of repeated requests, might suffice as evidence to show the deliberateness necessary for constructive discharge,”  . . . that is not the case here.

In fact, [he] admits [it] provided him with the warehouse position as an accommodation. Of course, he preferred a different accommodation. But the evidence demonstrates that [it] offered [him] a vacant position that was as close as [it] could get to his delivery merchandiser job. What is more, [he] admitted that when he resigned, he told his supervisor that he held nothing against [the employer].

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

 

Sixth Circuit Rejects ADA Claim Based on Self-Diagnosis and Belated Request to Transfer to Avoid Supervisor Even Though Employee Later Discovered Brain Tumor

A unanimous Sixth Circuit yesterday affirmed an employer’s summary judgment on claims brought by an employee terminated for repeated poor attendance which she later blamed on persistent depression and a brain tumor that were not discovered or diagnosed until after her termination.   Hrdlicka v. General Motors LLC, No. 22-1328 (6^th Cir. 2/7/23), reissued (6th Cir. 3-23-23).  The Court found that her time off requests were not specific enough to prevail on disability discrimination, failure to accommodate or denial of FMLA claims and the employer was justified in acting based on the information that it had at the time and was apparently not required to inquire further.   Merely mentioning possible depression is insufficient to put an employer on notice of the ADA because depression is not always a disability and the employer reasonably attributed the issues to a personality conflict.  The Court also found that the employer was not required to engage in the interactive process when her unreasonable request to transfer was plausibly based on her dislike of her job, co-worker and supervisor rather than self-diagnosed depression.   It also found her request to transfer was too little too late when it came after her Final Written Warning, after she had been late two more times and two days before she was ultimately fired.

According to the Court’s opinion, the plaintiff had worked for GM for over 30 years when she was terminated for excessive absenteeism.  She had previously taken a few medical and other leaves of absence, showing that she knew how to request such leaves.   She was transferred to a new department in May 2018, but did not like a co-worker, her new supervisor or the work environment.   She requested by August to be returned to her former department, but her position had been eliminated, she was not qualified for any other positions and someone would have to backfill her current position.   Within a year, she began frequently missing, and being hours late for, work.  She gave a variety of reasons for her attendance, when she explained it at all, including child care issues, traffic, not feeling well, headache, bad cough, family situations, being tired, etc.  The only time she mentioned going to see a doctor was a fabrication.  Her attendance was criticized in her June 2019 performance evaluation and, finally, she was given a final written warning on August 14, 2019 after she had missed the summer intern presentations over which she had primary responsibility.  She was encouraged to utilize a medical leave of absence or seek a reasonable accommodation if necessary and provided with information to contact the EAP.  She was late the next two days and then on August 19 requested against to transfer back to her former department.  To support this request, she mentioned that she was unhappy with her work environment and supervisor and it was disputed whether she also mentioned that she had been suffering from [self-diagnosed] depression.  She was late again the next day and her employment was terminated.    

She immediately appealed her termination and claimed that she had informed HR before her termination that she suffered from depression caused by her supervisor.   In October, she was diagnosed with persistent depressive disorder.  A brain tumor was discovered in November and removed.  The employer was so informed.   Her appeal – which was limited to facts which existed at the time the August termination decision was made – was denied because there was no evidence submitted prior to her termination to substantiate her depression.  She then filed suit, alleging violations of the ADA, FMLA, state law, ERISA,  and Title VII.  The employer was granted summary judgment on all claims and the Court of Appeals affirmed. 

The Court agreed that she could not prevail on a disability discrimination or failure to accommodate claim based on an impairment which was not even diagnosed until after her termination, particularly when she never sought medical help until after she had been fired.  The Court was not influenced by her self-diagnoses:

Although an employee is not required to use the word “disabled” to put his or her employer on notice, the employer still must “know enough information about the employee’s condition to conclude that he is disabled. Relevant information could include, among other things, a diagnosis, a treatment plan, apparent severe symptoms, and physician-imposed work restrictions.”  . . . “The employer is not required to speculate as to the extent of the employee’s disability or the employee’s need or desire for an accommodation.”

[Plaintiff’s] text messages required [her supervisor] to speculate as to the existence of a disability. Many of the text messages reference only generalized ailments, such as [her] “head . . . really hurting,” having a “fever and other symptoms,” or simply being “sick.” Such symptoms are consistent with many short-term, nondisabling ailments, including a common cold. Other text messages make even more general references to “having a tough time” or dealing with “a mental thing.” Although these messages might have given [the supervisor] a general awareness of a health issue, that is not enough. . . . .. At bottom, these text messages were not sufficient to apprise [the supervisor] of a disability, especially when [the plaintiff] herself was unaware of any disability.

The closer question is whether [the plaintiff] put General Motors on notice of a disability when she met with [HR] shortly before she was terminated. In that meeting, [she] told them that she had felt depressed since transitioning to the Design Academy. In explaining her tardiness, however, [she] stated that “it was all related to [her] current work environment created by [her supervisor,] . . . includ[ing] a lack of leadership, direction, a lack of trust within the group, favoritism,” etc. . . .

In sum, [the plaintiff] made only a single, unsubstantiated statement that she was depressed without any corroborating medical evidence and without ever having sought medical help, and she consistently presented the issue as a workplace conflict, not a disability. Although a diagnosis is not necessary for an ADA claim to succeed,  . . .  [she] failed to present any of the “[r]elevant information” that this court has found pertinent to determining if an employer was placed on notice of a disability. . . .

The mention of depression alone is insufficient to constitute a “severe symptom” for two reasons. First, depression does not always render an employee “disabled.” . . . Second, [she] consistently and specifically attributed both her attendance issues and depression to a dislike of [her supervisor] and the work environment, leaving General Motors to “speculate” as to the existence of a disability as opposed to [her] concern about her interpersonal work conflict.

The Court also concluded that even if she suffered from a disability, the employer had a legitimate reason to terminate her for her repeated poor attendance and prior warnings: “The chronic tardiness and repeated absences, coupled with [her] immediate failure to abide by her Attendance Letter, were clearly legitimate, nondiscriminatory reasons to terminate her.”

The Court also rejected her failure to accommodate claim based on her request to transfer back to her former department days after her Final Written Warning and two days before she was terminated (after she had again been late to work without a valid medical excuse).   She had never linked this request with any purported disability.  Unlike the Sixth Circuit panel just days earlier, it found her request to transfer to avoid her supervisor was unreasonable:

Based on the facts in the record, however, this request was not “reasonable.” A transfer request is not reasonable if it was made to avoid working with certain people. . . . . A court is not in a position to “act as a super-bureau of Human Resources” and determine who should work with whom.

[She] herself conceded during her deposition that, when meeting with [HR], she “complained about [her co-worker] and [her supervisor’s] lack of leadership at this meeting” and that her tardiness was “related to [her] current work environment created by [her supervisor].” In other words, she attributed her attendance issues to the work environment and to her supervisor. She explicitly noted that her depression began once she was transferred to the Design Academy, and that this “precipitated her request for a transfer back to Sculpting.”

These facts compel the conclusion that her transfer request was specifically linked to her distaste for her current work environment. Basically, it was a desire to “force [the defendant] to transfer [her] so that [she] will not be required to work with certain people.” . . .

Even assuming that [she] adequately attributed her request to a disability and not just to a desire to escape the Design Academy, her request was untimely. “When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be ‘too little, too late.’” . . .

Similarly, [her] request came after a long history of attendance issues and a warning that her “job was in jeopardy” if she did not improve. After [she] arrived late for three successive days immediately following the issuance of her Attendance Letter, she was terminated. Her last-minute request for a transfer back to the Sculpting Department was not reasonable under the circumstances.

The Court also rejected her argument that her employer failed to engage in the interactive process:

General Motors did not violate a duty to engage in an interactive process because the duty is an independent violation of the ADA only “if the plaintiff establishes a prima facie showing that he proposed a reasonable accommodation.” Id. at 1041. As discussed above, [she] did not request a reasonable accommodation and, therefore, General Motors did not fail to engage in an interactive process.

The Court also rejected her FMLA claim on the ground that she failed to provide sufficient notice of the need for such leave.  Her “general references to her head “really hurting,” feeling “sick,” or having a “fever and other symptoms” are simply generalized descriptions of ailments that do not rise to the level of “serious health conditions” within the meaning of the FMLA.”

The better argument is when [she] more explicitly referenced having “depression” in her meeting with [HR] shortly before she was terminated. But this conversation was not accompanied by any request for FMLA leave despite the fact that [she] was familiar with the process because she herself had already taken FMLA and maternity leave when she had had her two children. Moreover, the possibility of taking FMLA leave was directly stated in her Attendance Letter, which was both read and emailed to [her].

                 . . .

             . . . In sum, [she] made only a single statement that she was depressed, which was not made in the context of requesting time off, but as a justification for her desire to transfer back to the sculpting Department (and to continue working, not stop working as FMLA leave would entail).

The remaining claims were denied based on the employer’s legitimate and non-discriminatory reason to terminate her on account of her poor attendance, after several warnings, based on the information that the employer had at the time of the decision. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Blames Employee for Failure of Interactive Process When Employer Could Reasonably Infer Request to Change Supervision

Yesterday, the Sixth Circuit issued an interesting decision affirming the employer’s summary judgment on an ADA claim involving PTSD.  Tomlinson v. Krauss -Maffei Corp., No. 21-6245 (6^th Cir. 2/6/23).  The Court unanimously agreed that the plaintiff had not engaged in good faith in the interactive process by resigning after repeatedly failing to respond to emails about his allegedly discriminatory performance evaluation and, thus, could not establish a failure to accommodate, constructive discharge or retaliation.  They disagreed, however, with whether the plaintiff had requested, and whether it was reasonable to request, a change in supervision, with the majority finding that such a request was made and could be found to be reasonable.    The majority opinion goes so far as to find that the employer should have realized from the employee’s unhappiness with his performance evaluation that he was requesting a change in supervision even if he never used those words.  Of course, the extended discussion becomes dicta – and not legal binding -- when it was unnecessary to the Court’s judgment affirming dismissal of all of the employee’s claims on the grounds that “the evidence shows that [the employer] was persistent in trying to reach a resolution with [the employee] but he terminated the interactive process through his resignation.” 

According to the majority opinion,  the plaintiff informed Human Resources almost a year after he was hired that he had PTSD and wanted to never be scheduled again with a particular co-worker who he alleged was harassing him.  HR and his supervisor (with whom he only spoke approximately twice a year) granted his request.   However, the following year, he received a negative performance evaluation from his supervisor based on customer and co-worker complaints.   When the supervisor refused to change the evaluation following a conversation, the plaintiff reported to HR that he found the supervisor’s tone to be threatening and aggressive.  No threats were made to the plaintiff’s employment.   The plaintiff then complained to the General  Counsel, but did not respond to two of her emails. The plaintiff then took FMLA and STD and complained to the employer’s president about the evaluation.  It took weeks to for him to respond to HR’s inquiries.  He explained that he was having difficulty communicating because of his PTSD. 

The Company’s General Counsel investigated his concerns, but refused to modify his performance evaluation.  However, he was encouraged to return to work and asked how they could be more sensitive to his PTSD.  It also kept him apprised during the investigation, which considered transferring him, but no similar positions were available.   The company also refused on August 20 to have him report to the coordinator because she was not a manager/supervisor.   Nonetheless, although it allegedly informed the plaintiff that it was considering changing the performance evaluation process, it did not tell him the changes that it ultimately decided to make (after he had resigned on August 24) so that the coordinators would draft the performance evaluations for review by the supervisor.    The investigation concluded that the supervisor had been spread too thin and made lots of mistakes to seven of the performance evaluations that he completed that year.   The employee brought suit almost a year later, which was dismissed on summary judgment on the grounds that the request for a new supervisor was unreasonable and he had failed to engage in good faith in the interactive process.

In evaluating an employee’s burden of proving the denial of a reasonable accommodation, “[e]ncompassed in the reasonableness prong of the above framework is a requirement that both parties communicate in good faith to reach an agreement on a reasonable accommodation.”  In other words, one cannot show that a request is reasonable without also showing mandatory participation in the interactive process.  The majority opinion observed that “[w]hile it may be true that such a request [for a new supervisor] is generally unreasonable, our precedent informs that presumptions regarding the reasonableness of an accommodation “eviscerate[] the individualized attention that the Supreme Court has deemed ‘essential’ in each disability claim.”

A fresh look at the record evinces that a reasonable juror could conclude that [the employee’s] request was reasonable. After all, the [General Counsel] testified that the reason [the company] denied the request was because it did not “seem” like an option that would fit within the company’s structure. Critically, however, [the HR Director] testified that, during [the General Counsel’s] investigation of [the employee’s] complaints regarding [the manager’s] delivery of his performance review, [the company’s] leadership actually discussed revamping the evaluation process in a way that would have satisfied [his] request. Indeed, [the company] planned to explore the idea of having the service coordinators (Bouza’s position) conduct the performance reviews for FSEs ([his] position), instead of service managers (Wiley’s position). All things considered, a reasonable jury could discern that that [he] requested even before [the General Counsel] denied his request, but [the company] further made and implemented that change the following year.

The concurring judge, however, disagreed.  Among other things, the plaintiff had apparently admitted that he could continue to work with his supervisor because they only spoke about twice each year.   She denied that the record reflected him ever making a request to report instead to the coordinator and the investigation report never mentions such a request. “[A] change in supervision is not generally considered a reasonable request but must be individually considered in each case.”  Nonetheless, because the coordinator is not a supervisor or manager and was not being considered for a promotion, “[a] company does not have to change its reporting structure to accommodate an employee’s disability.”

Not letting the point go, the majority opinion then made clear that the employee need not specifically request a change in supervision if it should have been clear from the circumstances that this would have resolved the issue:

To begin, our precedent does not require employees to recite any particular buzz words for us to find that an accommodation was requested. . . . . The record supports that [the employee] made clear that he wished to be accommodated based on his disability even before he made the specific request for a change in supervision. Starting with his first call to [HR] after receiving his written performance review, until the moment that he resigned, [he] made clear that he had an issue with [his supervisor] and wanted [the company] to take some sort of action. For instance, in his first communication to the company’s general counsel, Beene-Skuban, [he] indicated that [his supervisor] made threatening and harassing comments which [he] felt were an attack on his PTSD. He later followed up with the president of the company stating that the only request he had made thus far was to not “deal with bullying or harassment.” Though he did not state specifically that he wanted to report to [the coordinator] instead of [his supervisor], [the company] should have reasonably inferred that he had an issue working with [the supervisor] such that it was appropriate to initiate an interactive process to reach a resolution, which is exactly what it did. [The Company] repeatedly attempted to initiate a discussion with [the employee] to hear more about his concerns and [the General Counsel] explicitly stated in one of the emails that she wanted to be “sensitive to” [his] PTSD.

In any event, a unanimous court agreed that the plaintiff’s failure to participate meaningfully in the discussions surrounding his allegations about the discriminatory performance evaluation and then resigning despite the company’s efforts to work with him to reach a satisfactory solution prevented him from prevailing on any discrimination or constructive discharge claim.

The ADA does not oblige “employers to make on-the-spot accommodations of the employee’s choosing.” . . . Rather, the regulations acknowledge that determining the appropriate accommodation may require the employer “to initiate an informal, interactive process.” 29 C.F.R. § 1630.2. This process functions to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Id. And “[e]ven though the interactive process is not described in the statute’s text, [it] is mandatory, and both parties have a duty to participate in good faith.” . . . . . Causing unnecessary delays, obstructing the process, and/or failing to adequately communicate or provide information during the process may evidence a party’s bad faith. . . . Where a party fails to participate in good faith, “courts should attempt to isolate the cause of the breakdown and then assign responsibility.”

In this case, the Court rejected the plaintiff’s assertion that his PTSD prevented him from meaningful participation in the interactive process through either email or telephone calls as repeatedly offered by the employer over several months:

But after [he] took medical leave, he became largely unresponsive, demanding that [the company] give him advanced notice before contacting him, yet neglecting to provide the company his availability. In this vein, [his] argument that he could not participate in the process on account of his PTSD is unpersuasive.

Despite his repeated failure to communicate, the employer explored several possibilities internally, showing that it was attempting in good faith to resolve his concerns.   Thus, the failure of the interactive process was his fault, not the employer’s:

a reasonable juror cannot conclude that he engaged in the mandatory interactive process in good faith. [He] argues that [the company] “completely sidestep[ped]” the process by failing to explore alternatives to his request. The record tells a different story. [He] terminated the interactive process by resigning when [the company] rejected his specific accommodation, even after the company made clear from the start of [his discrimination] complaint that it wanted to work with him to identify a reasonable accommodation. And after [the company] rejected [his] request [for a new supervisor], [it] advised him in writing that it intended to have a “face-to-face meeting” upon his return to further discuss next steps.

                . . . .

            it appears that [the employee] argues that he requested a pre-return phone call as an accommodation to support his failure-to-accommodate claim. This claim fails as well. [The Company] attempted several times throughout the course of [his] medical leave to schedule a call and ultimately offered to set up an in-person meeting upon his return from medical leave. Assuming [he] made this request, he is not entitled to cherry-pick the accommodation of his liking among reasonable alternatives.

The Court also rejected his retaliation claim on the basis that he could not identify an adverse employment action:  his discrimination and failure to accommodate claims had already been rejected.   The Court rejected his argument that he was constructively discharged, which could be an adverse employment action. 

“the employer must have created an objectively intolerable work environment to deliberately force a disabled employee to resign.” Id. Employees who leave “in apprehension that conditions may deteriorate later” will not prevail. . . . That is, if other forms of relief are available to employees, they are expected to try to resolve the issue instead of resigning.

For instance, in Goening , we held that the plaintiff could not use her employer’s criticism of her decision to take protected leave to establish that her work conditions were intolerable. . . . .  We reasoned in part that “this circuit has repeatedly held that an employer’s criticism of an employee does not amount to constructive discharge—especially when the employer’s criticism is limited to a few isolated incidents.” Id. We reached the same conclusion in Savage v. Gee , where the record showed that the faculty members of a university were critical of the plaintiff librarian’s book suggestions, were uncomfortable with his research skills and publicly challenged his professionalism. . . . We reached this conclusion again in Arndt, where we acknowledged that the plaintiff may have felt that the employer badgered and disrespected him about his PTSD, but the employer considered both of his requests for accommodation and placed him on medical leave while the second request was being considered.

In this case, the Court refused “to conclude that an employee can establish constructive discharge by proving that his manager made careless mistakes or included inaccurate information on one of his performance reviews.”  That his supervisor made some mistakes on his and seven other employee performance evaluations is not sufficient to justify a resignation.

 . . . A plaintiff’s testimony that an employer used a threatening tone, without more, is not enough under the circumstances of this case. See Brister v. Mich. Bell Tel. Co., 705 F. App’x 356, 360 (6th Cir. 2017) (evidence of “humiliation and criticism,” and evidence that the plaintiff was called “stupid” and told that she should “seek psychological help,” was not enough absent evidence that the harassment “manifested in a demotion, reduction in salary, or reduction in job responsibilities”); Goening , 884 F.3d at 631 (holding the plaintiff could not use her employer’s criticism of her decision to take protected leave to establish that her work conditions were intolerable). Even assuming [the supervisor] did use a threatening tone during the review, [he] testified that he only interacted with [the employee] about twice a year and [the employee] corroborated this testimony in his briefing. See id. (“[T]his circuit has repeatedly held that an employer’s criticism of an employee does not amount to constructive discharge—especially when the employer’s criticism is limited to a few isolated incidents.”). Further, [the plaintiff employee] was on medical leave at the time he resigned, lessening his chance of encountering [his supervisor] at the time of his resignation even more. And the record supports that [the company] offered to set up a meeting with [him] upon his return to ensure that [he] felt heard, evidencing [its[ efforts to make the working conditions tolerable for everyone.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Rejects Attempt to Expand ADA Interference Clause and §1985 Conspiracy Claim to Non-Employer

On Friday, the Sixth Circuit Court of Appeals affirmed summary judgment in an ADA and §1985 conspiracy action brought against a hospital by a former nurse of a group physician practice which had employed her.   Post v. Trinity Health-Michigan, No. 21-2844 (6^th Cir. 8/12/22).  After her employer terminated her (claiming budgetary reasons) and filed for bankruptcy, the nurse filed suit against the hospital where her had performed her duties alleging that she had been terminated on account of her disability and that the hospital had interfered with her ADA rights and conspired with her employer to terminate her in violation of the ADA.   The Courts found that the ADA – including the interference clause – only applied to employers, which the Hospital was not.  Further, it similarly concluded that §1985 only applied to constitutional causes of action and certain protected classes and could not overlap with statutory causes of action under the ADA. “[A] plaintiff can assert a claim of interference with employment-related rights under § 12203(b) only against an employer (or the few other entities listed in 42 U.S.C. § 2000e[1]5(b)).”

According to the Court’s opinion, the plaintiff nurse had been employed by the defendant hospital for a number of years.  However, the hospital outsourced her department to a physician group practice, terminated her employment and she continued to work in the same rooms, but for the group practice instead of the hospital.  At some point, she suffered a concussion while at work, received workers compensation and attempted to recover enough to return to work.  However, she lost her hospital privileges while she was off work and neither her employer, nor the hospital would permit her to practice her craft in a simulation room prior to returning to work as suggested by her treating physician.   Her employer also would not certify her ability to return to work under the circumstances as necessary to regain her hospital privileges.  Ultimately, she was terminated by the practice for budgetary reasons and the practice filed for bankruptcy shortly thereafter.  Unable to sue her employer, she brought suit against the Hospital for interfering with her ADA rights and for conspiring to deprive her of rights under the ADA.   Oddly enough, she never alleged that the hospital was a joint employer with the group practice.

The ADA’s interference clause does not explicitly apply to employers:

It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter. 42 U.S.C. § 12203(b).

It also applies to other ADA sections governing the government and public accommodations.  Could this, for example, apply to people who illegally park in spaces reserved for the handicapped? However, the Court found the structure of the ADA  and the remedial section’s incorporation by reference to Title VII (which only applies to employers) clarified that the interference clause only applied to employers (and others not at issue in this litigation).   

            Both the plain text of the ADA and our precedent on a related question rebut [the plaintiff’s] boundless reading. These sources instead demonstrate that, in this employment setting, the interference provision authorizes suits only against employers (and a few other entities that are irrelevant in this case).

                . . . .

To summarize things in reverse: Title VII permits suit only against employers (and a few other irrelevant entities). 42 U.S.C. § 2000e-5(b), (f)(1). The ADA’s employment subchapter adopts Title VII’s remedial framework. Id. § 12117(a). And the ADA’s interference provision, in turn, adopts the employment subchapter’s remedial framework when a suit raises an employment complaint. Id. § 12203(c). The statutory chain of cross-references thus leaves no doubt that the interference provision in § 12203(b) likewise permits suit only against employers.

The Court also analogized the interference section to the retaliation section, which applies to “persons,” which the Court had earlier held only applied to employers.  While the Court indicated that it might have been willing to entertain a joint-employer theory, she never alleged such a theory and thus, waived that argument.

Section 1985 is a reconstruction era statute signed by President Grant to fight the KKK.   One of its long clauses, contains a 255-word sentence creating a damages action against those who, as relevant here, “conspire” “for the purpose of depriving” “any person or class of persons” of “the equal protection of the laws” or “equal privileges and immunities under the laws[.]” 42 U.S.C. § 1985(3).”

This claim fails because [the plaintiff] has not shown that any conspiracy deprived her of the “equal protection of the laws” or the “equal privileges and immunities under the laws[.]” 42 U.S.C. § 1985(3). To avoid turning § 1985(3) into a generic tort law covering any injury inflicted by two parties, the Supreme Court has interpreted these two phrases to require “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” . . . But our court has substantially limited any non-race-based theory. We have held that § 1985(3) reaches only conspiracies targeting a person based on a classification (like racial discrimination) that would receive heightened scrutiny under the Supreme Court’s equal-protection framework. See . . . . Unfortunately for [the plaintiff], this holding means that § 1985(3) does not “cover” conspiracies grounded in “disability-based discrimination” because that type of discrimination is subject to deferential rational-basis review.

The Court refused to consider differing precedent in other Circuits without a superior decision from the en banc court or the Supreme Court.  In any event, §1985 typically requires some action by the state (i.e., government) to have a cause of action, but the nurse had only sued a private hospital.   In addition, the Supreme Court had previously “cautioned against allowing a plaintiff to use § 1985(3) to enforce a right” that was governed and precluded by Title VII “when the remedial limits in that statute would bar the plaintiff from suing directly under it.”

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.