Sixth Circuit Rejects ADA Claim Where Deposition Testimony of Plaintiff’s Physician Showed He Was Unqualified and Employer Could Reasonably Conclude that Plaintiff Would Continue to Seek Additional Extensions of Medical Leave.

Last week, the Sixth Circuit affirmed summary judgment on a disability discrimination claim asserted against an employer which took the high risk action --  of terminating a disabled employee who had been released to return to work with some lifting restrictions and who requested a reasonable accommodation -- without any evidence that the lifting restriction prohibited him from performing any of the essential functions of his job or consulting their own medical expert.  Aston v. Tapco Int’l Corp., No. 14-2476 (6^th Cir. 11-23-15).  The employer discharged the plaintiff after conducting its own internet research about the employee’s upcoming surgery and drawing its own medical conclusions about his actual ability to safely perform his job duties.  Even so, 18 months later, the employer reconsidered its position and offered the employee unconditional reinstatement to his position and agreed to honor his lifting restrictions.  Luckily for the employer, the employee’s own physician later contradicted the medical release he had provided to the employer before the plaintiff’s termination and testified in his deposition that he had not been physically able to perform his essential job functions at the time he was terminated or for some months thereafter. Accordingly, the plaintiff was not “otherwise qualified” for his job at the time of his termination.  In addition, after “an employer has already provided a substantial leave,” the request for “an additional leave period of a significant duration, with no clear prospects of recovery, is an objectively unreasonable accommodation.”  Finally, the court held that even if the plaintiff’s claim had proceeded to trial, he would have been precluded from recovering any back pay after he rejected the employer’s offer of unconditional reinstatement because he had a duty to mitigate his damages.

According to the Court’s opinion, the plaintiff had worked for the defendant employer for almost 20 years.  In 2006, he suffered his first heart attack and was off work for more than 26 weeks.  He suffered a second heart attack in May 2010 and in early November was released to return to work on January 1 with a 30-pound lifting restriction following impending surgery to implant an ICD.  HR surfed the internet to investigate the ICD surgery and found information that it was intended to prevent sudden death.   Even with a set return-to-work date, the employer notified the plaintiff that it did not believe that he would be able to perform his job duties, recommended that he should apply for LTD and indicated that he would be terminated by the end of the month.  The plaintiff returned to his physician with news of his impending termination and obtained an immediate return to work release with a 30-pound lifting restriction.  Nonetheless, the employer terminated his employment on the grounds that they did not believe that he could really perform his job duties and would not reinstate him unless he was released to full duty.  The plaintiff submitted a reasonable accommodation request the following month, which was ignored for 18 months.  At that point, the employer unconditionally offered to reinstate the plaintiff to his former job and to honor his lifting restriction.  Finding this to be too little, too late, the plaintiff instead pursued an EEOC Charge and filed suit later that same year.

There was no dispute that the plaintiff was discharged because of his disability.  His termination notice said as much and had stated that he would not be reinstated without a release to return to full duty.  However, the plaintiff was still required to show that he was “otherwise qualified’ for his position with or without a reasonable accommodation.  If he had been able to do so, the employer would have needed evidence beyond its own evaluation of his physical abilities and likely would have had to defend its requirement of 100% fitness.

Luckily for the employer, the testimony of the plaintiff’s own physician did not help his claims.  He testified that he had reviewed the plaintiff’s job description and had notified the employer that he could perform all of those tasks, with the exception of certain lifting.  However, he had not asked the plaintiff how much time he spent performing each task.  More importantly, the physician conceded that the plaintiff likely would not have been able to perform the essential functions of his job when he was released to return to work in November and would not have been able to do so until sometime after January.   Therefore, even if the employer had reinstated the employee in November or early January as requested, the plaintiff still would not have been able to perform about half of his job duties.  Accordingly, at the time of his discharge in November, he was not qualified to perform his job with or without a reasonable accommodation.

As for the plaintiff’s reasonable accommodation claim, the court still found that the plaintiff could not show that he was otherwise qualified because he would not have been able to perform his essential job functions in January.  It also would have constituted an undue hardship for the employer to continually extend his medical leave of absence: “when an employee’s return date is not so certain, an employer is not required to keep open a job for an employee indefinitely.”  

This situation goes beyond what constitutes a reasonable accommodation. At the time of [the plaintiff’s] termination, [the employer] reasonably questioned whether [he] would be able to return to work, not only in November, or in January, but if ever. Just a few weeks before terminating [him], [his physician] informed [the employer] of another impending major medical procedure that [he] needed to undergo. This would doubtlessly require additional time for recuperation. [The plaintiff] had already been on an extended 26- week leave once before, in 2006, and, at the time of his termination, [he] was on his second leave of unknown duration, despite the request for return on January 1, 2011. With no certain or credibly proven end in sight, we therefore maintain as we did in Walsh that when, as here, “an employer has already provided a substantial leave, an additional leave period of a significant duration, with no clear prospects of recovery, is an objectively unreasonable accommodation.”

Moreover, the court affirmed that the employee’s duty to mitigate meant that, even if he had prevailed on his ADA claims, he would not have been able to recover any back pay for the period after he rejected the employer’s reinstatement offer.  The Court rejected the plaintiff’s argument that the employer’s offer was not made in good faith (in that he had already been replaced, etc. and had been made merely to call the plaintiff’s “bluff” that he was physically capable of working).  “As the district court noted, the Sixth Circuit has not adopted the good faith exception as a special circumstance warranting the continued tolling of a plaintiff’s backpay, even after an employee rejects an employer’s unconditional offer for reinstatement.” 

Finally, the court rejected the employer’s request for sanctions on the grounds that the employee’s claims were not frivolous.  

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 be changed or 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.

Same Time Next Year: Different Court Different Result on Disability Discrimination

Last month, the Eighth District Court of Appeals in Cuyahoga County reversed summary judgment in favor of a school district on a disability discrimination and retaliation claim brought by a terminated teacher. Johnson v. Cleveland City School Dist., 2011-Ohio-1917. In that case, the plaintiff teacher brought suit for a failure to accommodate her cervical myelopathy. In fact, she initially brought suit in federal court, which dismissed her federal claims on summary judgment . . . . . .twice . . . . after the Sixth Circuit once reversed. However, the federal court had declined to exercise jurisdiction over the state law claims (disability discrimination, breach of contract and infliction of emotional distress) and she filed those in state court while her federal appeal proceeded. When the district court granted summary judgment again, the school attempted to dismiss the state court action based on res judicata, but the appellate court was not having any of that.

According to the Court's opinion, the teacher's physician recommended certain accommodations of her disability so that she would not get worn out. These medical restrictions were honored by the school for a number of years. Then, according to the teacher, a new administrator decided that they would not be accommodated any longer and she had to return to teaching a regular class, which the teacher said she could not do. When a stalemate ensued, the teacher took a medical leave of absence and filed a Charge of Discrimination. When the Charge was dismissed, the school denied to continue her leave and she returned to work, but still would not perform regular teaching duties. Instead, she requested a fitness for duty examination, which resulted in the same medical limitations as before.

At this point, the parties do not agree on what happened next. The plaintiff asserted that she produced a guidance counselor certificate and said she could perform those duties. The school denied that she ever applied for a counselor position. The school refused to accommodate all of her restrictions, but offered her three teaching positions. The teacher said that she agreed to accept one, but the school said that she denied all three positions. The school then fired her.

The Court of Appeals found that there were disputed issues of material facts as to whether the teacher had a covered disability and been accommodated and whether her termination was in retaliation for exercising protected rights in seeking a reasonable accommodation and filing a Charge of Discrimination. Therefore the case was remanded for a jury trial.

The trial court determined that the physician's conclusory diagnosis that the teacher had a "disability" did not create a disputed issue of fact about substantial limitations of major life activities, but the Court of Appeals disagreed. Moreover, two other physicians agreed that plaintiff was disabled.

The trial court had found that the plaintiff was not qualified because her restrictions on speaking prevented her from maintaining control over a classroom. However, again, the Court of Appeals disagreed because, among other things, she had received "excellent" performance evaluations since the restrictions were put in place years earlier.

Finally, the retaliation claim was revived because there was evidence that the school provided knowingly false information in the termination letter when it claimed that the teacher had declined an offered position, but the human resources' employees notes stated otherwise (as did the plaintiff teacher).

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.