Sixth Circuit Rejects ADA Claims For Failure to Show a Disability or Failure to Accommodate

Last week, the Sixth Circuit Court of Appeals affirmed the summary judgment dismissal of an ADA claim on the grounds that the plaintiff failed to show that he was disabled, that the employer failed to provide him with a reasonable accommodation and that he had timely filed one of his claims within the 300 day limitations period.  Booth v. Nissan North America, Inc., No. 18-5985 (6^th Cir. 6-7-19).  The plaintiff’s physician indicated that he had some lifting and bending restrictions which, at worse, may have impacted his ability to perform a particular job.  “[J]ust because a plaintiff has work restrictions does not mean that he is disabled.”


According to the Court’s opinion, the plaintiff worked for more than a decade after his doctor gave him permanent medical restrictions on bending and reaching.  In 2015, he applied for a transfer, which was denied on account of those medical restrictions.  He sought reconsideration several times, but was again denied.  Shortly thereafter, the employer modified his assembly line position to require all of the employees to be able to perform four job functions instead of merely two.  When he informed the employer that the additional two job functions would violate his medical restrictions, he was temporarily kept in his two-function position.  In 2016, he was requested to update his medical restrictions with his physician because they were inconsistent with his current position.  He did so in 2017 and the physician modified the restrictions which would have prevented him from performing the additional job functions.  The plaintiff agreed with the restrictions and, once they had been modified, was able to perform the new job and continued to do so even throughout the litigation.


In November 2016, the plaintiff filed an EEOC Charge, which was dismissed for failure to show that he had a disability.  He filed a lawsuit challenging the failure to transfer him to the material handler position, and failing to accommodate his alleged disability.  The trial court granted the employer’s motion for summary judgment.


The plaintiff was informed in November 2015 that he would not be transferred into the material handler position because of his medical restrictions. Although he attempted to get that decision reversed, the supervisors and human resources explained to him that the decision would not change unless his medical restrictions changed.  He did not file his EEOC Charge until more than 365 days later even though the ADA requires Charges to be filed within 300 days.  His requests for reconsideration did not re-start the limitations period.


Even if his claim had been timely, the Court also found that he had failed to prove that he had a disability. Prior to the amendment of the ADA, the Court had made clear that “simply having a work restriction does not automatically render one disabled,  . . . .  nor does being unable to perform a discrete task or a specific job.”  After the ADA was amended, “an impairment that “substantially limits one major life activity need not limit other major life activities in order to be considered a disability.”

Even so, Congress did not modify the definition of the major life activity of working, and a plaintiff who alleges a work-related disability “is still required to show that her impairment limits her ability to ‘perform a class of jobs or broad range of jobs.’”   . . . . EEOC regulations explain that a plaintiff cannot claim a disability by simply “[d]emonstrating a substantial limitation in performing the unique aspects of a single specific job.”  29 C.F.R. § 1630, App. (2016).  That Booth’s neck injury and related work restrictions kept him from working in the material handling role does not resolve whether Booth is disabled under the ADA.  Rather than point to one job that he cannot perform, a plaintiff alleging a work-related disability must show that his condition precludes him from working in a class or broad range of jobs, “such as . . . assembly line jobs.”  Id.  Booth has not made that showing.  To the contrary, Booth concedes that he has worked without interruption on the assembly line since injuring his neck in 2004—and has continued to work there since this litigation began.  

The Court also rejected his timely failure to accommodate claim, which was based on the employer’s “pressure” to have his medical restrictions modified under threat of termination if he failed to do so.  

 However, the Court rejected this claim for the same reason as his refusal-to-transfer claim:  he could not show that he was disabled.   Moreover, he could not show that the employer failed to accommodate him because he continued to work uninterrupted even though the litigation. “Nor does Booth suggest that he misreported his symptoms or otherwise encouraged his doctor to modify the restrictions in order to preserve his job.  To the contrary, Booth testified that he does not disagree with his doctor’s revisions to his work restrictions.”


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.

Supreme Court Issues New Employment Decisions

As its term nears its annual close, the Supreme Court has issued a couple of opinions of interest to employers and employees.   What is surprising is that the Court was unanimous in both decisions.   This morning, the unanimous Supreme Court agreed that only federal law applied to off-shore drilling platforms under the Outer Continental Shelf Lands Act (“OCSLA”)  and that the laws of adjacent states only applied when applicable and there is no other federal law on the issue.   Parker Drilling Management Services Ltd v. Newton, No 18-389 (6-10-19).  Accordingly, only the Fair Labor Standards Act and not California wage and hour laws applied to the plaintiff’s class action claims that he was improperly not paid for standby-time when he could not leave his rig.    Last week, the Court ruled that a defendant employer’s failure to include an objection to a plaintiff’s failure to file a religious discrimination Charge of Discrimination with its Rule 12(b) defenses in a responsive pleading in a Title VII action forfeited the defense.  Therefore, the employer could not later challenge the court’s subject matter jurisdiction to defeat a claim for religious discrimination which had not been raised in her EEOC Charge (which had only asserted sexual harassment and retaliation).  Fort Bend County Texas v. Davis, No. 18-525 (6-3-19). “Title VII’s charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction). . . .  Prerequisites to suit like Title VII’s charge-filing instructions are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play.” In other words, “a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.”


In Davis, the plaintiff had filed a Charge of Discrimination with the EEOC alleging that she had been sexually harassed and retaliated against for complaining.  After her Charge had been filed, she was fired for missing work while she attended a church service even though she had previously objected to the work schedule as conflicting with the church service.  While she intended to amend her EEOC Intake Questionnaire, she never amended the formal Charge document which is sent to the employer at the beginning of an EEOC investigation.  The trial court granted summary judgment on all claims, but the Court of Appeals reversed judgment on the religious discrimination claim.  At that point, the employer raised for the first time that the plaintiff had not amended her Charge to include a claim for religious discrimination and this deprived the court of subject matter jurisdiction.   The trial court granted the employer’s motion to dismiss for lack of subject matter jurisdiction, but the Court of Appeals reversed on the grounds that filing a Charge is not a jurisdictional issue and the defense had been forfeited when it had not been raised earlier in the litigation.  Although the Court had previously refused to grant certiorari on the religious discrimination claim, it granted certiorari as to whether filing a Charge of Discrimination is a jurisdictional prerequisite to pursuing a civil action. 


Justice Ginsburg observed that “the word “jurisdictional” is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction).” 

The Court has therefore stressed the distinction between jurisdictional prescriptions and nonjurisdictional claim-processing rules, which “seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.”   . . .  A claim processing rule may be “mandatory” in the sense that a court must enforce the rule if a[n opposing] party “properly raise[s]” it.  But an objection based on a mandatory claim processing rule may be forfeited “if the party asserting the rule waits too long to raise the point.”

             . . .

            Title VII’s charge-filing requirement is not of jurisdictional cast.  Federal courts exercise jurisdiction over Title VII actions pursuant to 28 U. S. C. §1331’s grant of general federal-question jurisdiction, and Title VII’s own jurisdictional provision  . . . .Separate provisions of Title VII, §2000e–5(e)(1) and (f )(1), contain the Act’s charge-filing requirement.  Those provisions “d[o] not speak to a court’s authority,”  . . . , or “refer in any way to the jurisdiction of the district courts,”

             . . .

And recognizing that the charge-filing requirement is nonjurisdictional gives plaintiffs scant incentive to skirt the instruction.  Defendants, after all, have good reason promptly to raise an objection that may rid them of the lawsuit filed against them.  A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.

In sum, a rule may be mandatory without being jurisdictional, and Title VII’s charge-filing requirement fits that bill.

In short, employers may still move to dismiss claims where the plaintiff failed to file a Charge of Discrimination, but they raise and preserve that defense as required by Civil Rule 12(b) instead of waiting years to challenge the court’s subject matter jurisdiction.


In Newton, the plaintiff worked on drilling platforms off the coast of California.  His 14-day shifts consisted of 12-hour work hours (paid well above minimum wages) and 12 unpaid hours of standby time when he was required to remain on the platform.  He filed a class action in California state courts under California law challenging the failure to pay him and his co-workers for standby time.  While the parties acknowledged that the OCSLA applied, the plaintiff asserted that consistent state laws still applied on the Outer Continental Shelf (OCS).  The trial courts applied Fifth Circuit law that state law only applied when there were gaps in federal law and dismissed the claims because the FLSA did not leave gaps.   The Ninth Circuit reversed and held that state law continued to apply unless it was incompatible with federal law.  The statute itself provided that state laws applied ““to the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted . . . “


Justice Thomas explained that the statute’s use of “applicable” and “not inconsistent” required an interpretation that gave meaning to both terms.  If a state law applied merely because it was relevant and addressed the subject, then the statute would not need to only apply “applicable” state laws.   On the other hand, if state law only applied when there would gaps, it could be difficult to imagine how such a law could possibly be inconsistent when federal law was silent on the subject, although that could happen when federal law was intentionally silent on an issue or the law could be inconsistent with a federal law on a different issue.   In light of the fact that federal law had exclusive jurisdiction over the OCS, and there is no overlapping jurisdiction, “these provisions convince us that state laws can be ‘applicable and not inconsistent’ with federal law under §1333(a)(2)(A) only if federal law does not address the relevant issue.”


Federal law has exclusive jurisdiction and only borrows certain state laws when federal law is silent on the issue.   Also, in light of the supremacy of federal law and the lack of overlapping jurisdiction, it would make little sense to treat the OCS as a mere extension of the adjacent state where federal law only applies when it conflicts with state law.  Rather, the OCS is treated more like a federal enclave.


There, the Court held that “if a federal law addresses the issue at hand, then state law is not adopted as federal law on the OCS.”  In applying this standard, the  Court easily dismissed the state law wage and hour claims because the Fair Labor Standards Act already addressed those issues.  “Therefore, the California minimum wage is not adopted as federal law and does not apply on the OCS.”


Because the lower courts had not analyzed all of the plaintiff’s claims, the Court remanded the matter so that those issues could be examined under the standard announced in this case. 


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.

Ohio Supreme Court Denies Relief In Two Employment Cases

This week, the Ohio Supreme Court issued two per curiam decisions.  In the first, the Court concluded that there was “some evidence” showing that OPERS did not abuse its discretion when it denied pension benefits to an independent contractor psychiatrist hired by the Lucasville prison despite the amount of control that the prison exercised. State ex rel. Sales v. Ohio Pub. Emps. Retirement Bd., Slip Opinion No. 2019-Ohio-1568.  In the second decision, the Court ruled that the Cuyahoga County Common Pleas Court lacked jurisdiction to restrain the City of Cleveland from changing the starting time of its union firefighters from 8:30 a.m. to 7:00 a.m. because such matters are within the exclusive jurisdiction of SERB.  State ex rel. Cleveland v. Russo, Slip Opinion No. 2019-Ohio-1595.


According to the Court’s opinion, the pro se psychiatrist signed a Personal Services Contract with the prison which identified him as an independent contractor, required him to work 16 hours/week for up to 8 hours/day and required him to submit an invoice in order to be paid.  He was issued 1099 tax forms and did not receive any fringe benefits, or unemployment or workers compensation coverage.   The agreement was renewed several times.  After he terminated the contract, he sought service credits from the Public Employee Retirement System.  OPERS denied his application and appeal, as did a Franklin County magistrate, but the Court of Appeals reversed based on the amount of control the prison exercised over him.   The prison provided him with an office while he was there, provided him with some training, issued him a badge, provided him with malpractice coverage, set his work schedule, and required him to clock in and out.  The court acknowledged that it was unlikely that any psychiatrist could be an independent contractor under such conditions.  The Court reversed because the appeal was subject to an abuse of discretion standard that must affirm OPERS if there is any evidence that could support its decision.  The OPERS regulations distinguishing between employees and contractors favored independent contractor status because he was not carried on payroll, submitted invoices, received no fringe benefits and was identified as an independent contractor, etc. This was “some evidence” supporting the OPERS decision to deny service credit.


According to the Court’s opinion, the firefighter union had filed an unfair labor practice charge over the City’s intention to change the shift starting time.  It then filed for a temporary restraining order, which was granted on the grounds that the change could affect child custody arrangements.  The City sought a mandamus, which was granted because SERB possesses exclusive jurisdiction over disputes covered by the collective bargaining agreement.  No independent statutory or common law right supported the union’s requested relief.


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.

Sixth Circuit Mostly Affirms $5M FLSA Verdict

Yesterday, the Sixth Circuit Court of Appeals mostly affirmed an approximately $5M verdict in a FLSA collective action for unpaid overtime and liquidate damages due to 156 employees.  Pierce v. Wyndham Vacation Resorts Inc., No. 18-5258 (6^th Cir. 4-29-19).   After a 14-day bench trial with over 50 witnesses, the trial court determined that three categories of sales employees worked on average 52 hours per week, but were denied overtime pursuant to a practice and policy which was supported by testimony and exhibits from some management employees.  The employer attempted to dispute that it had a consistent policy by pointing to various reasons that employee time sheets were changed (i.e., failing to record time, working from home, leaving work early, etc.), but this evidence was used to reduce the alleged number of work hours and not to reject the existence of the policy and practice.  The divided Court determined that one category of sales employees should not have been included in the same class as the others because they had different functions, started work two hours later, were not required to attend the same events and meetings, and only had one representative testify, who did not support that his experiences and working hours were the same as other employees, etc. Instead, at the least, there should have been a separate sub-class with evidence supporting a verdict.  The case was remanded to recalculate damages.


According to the Court’s opinion, the employer had four locations in Tennessee involving the sale of time-share vacation properties.   It had three types of sales employees: front-line selling time-shares, inhouse selling upgraded timeshares to existing owners and discovery employees handling leases (but not time shares).  All of them were primarily paid on commissions, but were paid minimum wage draws based on hours worked.  In 2009, it began paying overtime.  The lawsuit was filed in 2013 alleging that the employer had a practice and policy of not paying overtime to the sales force by, among other things, directing employees to not record overtime and by modifying their time cards if they did so.

All of the testifying plaintiffs consistently said that Wyndham required them to underreport their time or altered their recorded time.  They all provided an average of the number of hours they worked each week, ranging from 50 to 80 hours per week, and their basis for that number:  the mandatory morning meeting, tours throughout the day, frequent late-night work and special events, and six- or seven day work weeks.  But, through it all, they didn’t worry about keeping an accurate account of their hours because the company told them it would recoup any overtime pay from their commissions.  

The administrative manager at the Nashville location testified that upper management instructed that sales employees could not be paid overtime and that managers should alter employees’ timecards to show no more than 40 hours per week.  The vice president of sales and marketing at the two Smoky Mountain locations acknowledged that Wyndham performed an audit that showed that salespeople worked off the clock.  Several emails from managers also mentioned Wyndham’s no-overtime-pay policy.  The evidence thus showed that Wyndham executed an across-the-board time-shaving policy that failed to compensate the employees for the hours they worked.

The trial court concluded that the employees worked on average 52 hours/week, awarded $2,512,962 in unpaid overtime and an equal amount in liquidated damages.  Attorney fees for the prevailing employees were not mentioned, but will not be insignificant.


The Court rejected the employer’s challenge to the class certification, with one exception.  It agreed that the discovery employees were not similarly situated because they did not sell time-shares like the other employees, were not required to attend all of the same events or work the same hours or work the same days.  In addition, they were not required to report to work until approximately two hours after the other employees and the testimony was unclear about when they could leave. While they may have stayed later, there was no evidence on that point.   “At the least, the court should have created a separate subclass for the discovery employees.”


“To determine whether plaintiffs are similarly situated, we consider (1) ‘the factual and employment settings of the individual[ ] plaintiffs,’ (2) ‘the different defenses to which the plaintiffs may be subject,’ and (3) ‘the degree of fairness and procedural impact of certifying the action as a collective action.’” The trial court had treated them as one class because they were subjected to the same alleged overtime policy.   While the front-line and inhouse sales employees sold the same product (to different types of customers), they also reported to work at approximately the same time for the same meeting, gave tours, attended events, worked the same days, were compensated the same and recorded time in the same payroll system.  As mentioned, the discovery sales employees had different working hours.


The Court rejected the employer’s attempt to argue that there was not a consistent policy of avoiding overtime because of all of the different reasons that employee time cards were modified.  In light of the evidence introduced, that claim was rejected.  Instead, the Court found that these various explanations could be part of the same policy and practice.  In addition, this evidence was used to reduce the number of alleged overtime hours.


The Court also rejected the employer’s attempt to discredit the employee testimony because it was permitted to depose and call any witnesses it wanted and almost 30% of the employees testified (which is a far greater percentage than in prior successful lawsuits).


The Court also rejected the employer’s expert (who was the only testifying expert) because the expert relied heavily on employee time sheets, which the employees testified were meaningless in light of the employer’s direction to not record overtime and the practice of modifying time sheets that reflected overtime.


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.

EEOC Releases 2018 Fiscal Year Enforcement Statistics

Earlier this month, the EEOC released its annual enforcement statistics for the fiscal year that ended on September 30, 2018.  It received 76,418 Charges in the last fiscal year and 3% of those were filed in Ohio.    Retaliation remains the most common form of allegation made in Charges of Discrimination, being asserted in over half of all charges filed.  About the same percentage of Charges were filed on the basis of race, sex and disability (approximately 32% each).   Similar to last year, age discrimination was asserted in only 22% of Charges and the remaining issues were only in the single digits.   (Obviously, Charges may contain more than one type of allegation).   The EEOC reported receiving 7,609 sexual harassment charges - a 13.6 percent increase from FY 2017 - and obtained $56.6 million in monetary benefits for victims of sexual harassment.

The EEOC also reported that it resolved 90,558 charges of discrimination (compared to the 76,418 filed).  In November, the EEOC reported a 19.5% reduction in backlog of private sector charges to 49,607 (its lowest in 12 years) and reported that it had filed 199 lawsuits. The EEOC secured approximately $505M and other relief for over 67,860 victims of discrimination in the workplace in the last fiscal year through litigation. It has 302 active cases on its docket.



As for the pre-litigation resolution of Charges, 6.1% were resolved through settlement and 5.6% were withdrawn by the Charging Party (without a formal settlement) with benefits.  Fourteen percent were administratively closed (which likely means that the Charging Party could not be located or had stopped returning calls). Over 70% of Charges were dismissed for lacking probable cause (i.e., lacked merit or proof).   All of these statistics are similar with the prior year.   Only 3.5% of Charges (approximately 3,113 of the Charges) were found after an investigation to assert probable cause of discrimination.  This is an increase over last year.   Less than half of these Charges were successfully conciliated prior to litigation.  The EEOC’s resolution of Charges in the last fiscal year (prior to litigation) resulted in the recovery of $354M for Charging Parties, which is consistent with recoveries in recent years.

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.