ADA in the News October 11, 2018

Doctors With Disabilities Raise Awareness, Bring More Than Diversity

Bloomberg BNA

October is disability awareness month, and Labor Secretary Alexander Acosta kicked it off by noting the strong gains individuals with disabilities have made in employment.

This is great news for professionals in health-care fields, as they too are benefiting from growing workplace diversity and inclusion. A large network of doctors with disabilities, for example, is gaining visibility in hospitals and physician practices.

EEOC Sues Appalachian Wood Products, Inc. For Disability Discrimination

According to the EEOC's lawsuit, in June 2017, the company refused to hire an applicant for a factory position because he was taking medically prescribed suboxone without considering whether it affected his ability to do the job safely. The EEOC said that since at least October 2016, Appalachian Wood Products has unlawfully barred job applicants from certain positions if they were taking prescribed medications for drug addiction treatment, such as suboxone or methadone, without evaluating whether such medications affect their ability to perform the job safely. The lawsuit also charges that Appalachian Wood Products has unlawfully required applicants to disclose their use of medications prior to making conditional job offers and then refused to hire them into certain jobs or assigned them to less desirable positions based on their answers to these illegal medical inquiries.

Refusing to hire a qualified individual because of his disability, record of disability or because the employer perceives a person as being disabled violates the Americans with Disabilities Act (ADA). The ADA also places strict limits on employers when it comes to asking job applicants to answer medical questions, take a medical exam, or identify a disability. The EEOC filed suit (EEOC v. Appalachian Wood Products, Civil Action No. 3:18-cv-00198) in U.S. District Court for the Western District of Pennsylvania after first attempting to reach a pre-litigation settlement through its conciliation process.

Triton Management Services to Pay $110000 to Settle EEOC Disability Lawsuit

The National Law Review

Management Services Company Denied Medical Leave to Employee Then Fired Her, Federal Agency Charged

SAN DIEGO, Calif. –Triton Management Services, LLC, headquartered in Carlsbad, Calif., agreed to pay $110,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. 

According to the EEOC's lawsuit, an employee requiring medical attention and a leave of absence for a disability was denied leave and was instead fired.  The EEOC said Triton failed to provide the employee a reasonable accommodation for her disability.

Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), which makes it unlawful for an employer to fire-or otherwise discriminate against an employee due to a disability. 

The EEOC filed suit at the U.S. District Court for the Southern District of California (EEOC v. Triton, Inc., Case No.: 3:17-cv-02004-BAS-KSC), after first attempting to reach a voluntary, pre-litigation settlement through its conciliation process.

In addition to monetary relief, the three-year consent decree, which remains under the court’s jurisdiction during the term of the decree, includes injunctive relief intended to prevent further workplace discrimination. Triton will review and revise its written policies to achieve compliance with the ADA, provide regular training to all employees regarding the ADA, maintain a log detailing accommodation requests and complaints and conduct regular audits, and oversee recordkeeping and reporting requirements through a designated equal opportunity officer. The EEOC will monitor compliance with the terms of this agreement.

"It is important for employers not to let stereotyping dictate how they respond to individuals with physical or mental disabilities in the workplace," said Anna Park, regional attorney for the EEOC's Los Angeles District Office, which includes San Diego in its jurisdiction. "We commend Triton for resolving this case." 

Christopher Green, director of the EEOC’s San Diego Local Office, said, “We are encouraged that Triton is taking steps to put in place policies and practices that will protect and enhance the working conditions for all of their employees.”

Addressing emerging and developing issues in equal employment law, including issues involving the ADA is one of the six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employ­ment discrimination.

Bakery Says Employee's FMLA Claims Don't Rise to the Occasion


Under the Family Medical Leave Act (“FMLA”), employers are required to provide 12 weeks of unpaid leave to employees with certain family or medical issues. These issues include attending to serious health conditions that make the employee unable to work, or caring for newborns or family members.

A frequent dilemma that employers often face is what to do when an employee has exhausted all available FMLA leave and still cannot return to work. One employer, Gold Medal Bakery, currently finds itself in litigation surrounding this issue.

The dispute started when Robert Thompson, a baker and production technician, had knee replacement surgery in May 2016. He was approved for a three-month medical leave with a return date of August 9.

Thompson alleges that when it became clear he couldn’t return by August 9, he informed Gold Medal’s human resources department. On August 12, when he asked for five more days to submit a physician’s note, he was fired.

He then brought a lawsuit alleging that Gold Medal had violated the FMLA, as well as state and federal age and disability discrimination laws. Earlier this month, Gold Medal filed a motion for judgment on the pleadings, arguing that Thompson’s FMLA claim fails on its face.

Gold Medal makes two main arguments in its motion. First, it asserts that Thompson is challenging its previously adopted policy that “[a]n employee failing to return to work on the scheduled return date after a FMLA leave will be considered to have voluntarily resigned.” This policy, it says, “fully complies with the FMLA.”

Gold Medal points out that the FMLA does not require an employer to do anything more than provide 12 weeks of unpaid leave. Once that leave is exhausted and the employee fails to return to work, it says, the termination of the employee—whether for “voluntary resignation” or otherwise—does not violate the FMLA.

Second, in the alternative, Gold Medal contends that Thompson undisputedly did not provide a certification as to his fitness for duty at the end of his leave, a failure which also allowed it to terminate his employment. Under this policy, it says, Thompson simply took too long to provide the required physician’s note.

We’ll be watching to see how the district court resolves these arguments. The most important takeaway for employers, however, is that Gold Medal is not moving for judgment on Thompson’s claims that it violated the Americans with Disabilities Act (“ADA”) by terminating him after twelve weeks of leave. Thus, Thompson’s disability discrimination claims will proceed to discovery.

As Thompson’s case shows, when an employer is confronted with an employee who does not return to work after a 12-week leave and claims a disabling medical problem, the employer should look beyond the FMLA to its obligations under the ADA. Under the ADA, the employer should examine whether the employee can return to work with or without a reasonable accommodation. The ADA may even require the employer to reassign the employee to another vacant position.

In short, because of the ADA, an employer can’t just rely on a policy that when FMLA leave is exhausted, it can terminate a potentially disabled employee with impunity—no matter how justified that policy may be under the FMLA.

As Effective Date For “Cooperative Dialogue” Approaches, New York City Issues Guidance

JD Supra

On October 15, 2018, amendments to the New York City Human Rights Law which require employers to engage in a “cooperative dialogue” with individuals with disabilities and others regarding their accommodation needs will go into effect. The New York City Commission on Human Rights has provided employers with guidance as to how these new amendments will be enforced.

Chipotle can't escape former employee's discrimination suit; Company says he was fired for poor performance

The Pennsylvania Record

On Sept. 20, the United States District Court for the Eastern District of Pennsylvania denied Chipotle Mexican Grill Inc.’s motion for summary judgment on a former employee’s claims the popular eatery discriminated and retaliated against him.

Mark Matero, who worked as an area manager and supervised a number of restaurants in the Philadelphia area, accused Chipotle of violating the Americans with Disabilities Act and the Family and Medical Leave Act. He also filed claims under the Pennsylvania Humans Relations Act and the Philadelphia Fair Practices Ordinances. 

He sued the restaurant claiming it fired him on his first day back at work from leave for back surgery. While Chipotle attempted to get summary judgment on the issue, the district court denied Chipotle’s request.

The court first determined Matero had to prove he had a disability protected under the ADA, that he’s a qualified individual, and that he experienced an “adverse employment action” as a result of the disability, the court stated. Chipotle disputed the last two qualifications concerning Matero, so those were the only two the court evaluated.

Chipotle said Matero wasn’t a qualified individual and noted it fired him because he didn’t train his restaurant teams correctly, he “failed miserably” to perform Chipotle’s regulations concerning food safety and dealing with cash, and that he kept low-performing workers on the payroll. 

Still, the court said Matero not only completed training but that his performance itself labeled him as a “reliable contributor.” He even earned a merit raise and bonus. Considering this, the court determined Matero is a qualified individual.

Concerning whether Matero’s disability is the reason he was fired, the court stated, “Numerous facts in the record raise an interference of discrimination.” 

For starters, his supervisor, Robert Anderson, admitted he didn’t remember giving Matero any notice that there was an issue with his performance before he left for surgery. Plus, Dismas Nyakundi, who took Anderson’s place as Matero’s supervisor while Matero was on leave, visited Matero’s restaurants during his absence and exposed multiple issues until it became obvious it was time to fire Matero. 

Still, Nyakundi never talked with Matero about his concerns. Instead, he fired him when he returned from his surgery. While Chipotle said it also fired Matero because he called an employee to come in to work two days after she vomited, allegedly violating a policy that says an employee has to take three days off for being sick, the court pointed out Nyakundi didn’t speak with Matero about it until he was firing him. The court said these issues have established Matero’s prima facie claims of discrimination.

The court next looked at prima facie concerning retaliation. It said the fact that Matero was fired on his first day returning has enough proximity to suggest retaliation under the ADA.

The court also said Matero proved he faced retaliation via the FMLA. While Chipotle said Matero never asked for FMLA leave, Matero said his petition to get time off for the surgery and recovery should have indicated to Chipotle he needed to take leave under the FMLA, and the court agreed. 

He also provided enough evidence that there was a direct connection between his leave and his firing, again, because he was first on his first day back. Plus, Matero said he asked Anderson if he needed to take a leave of absence for surgery, and Anderson said using sick and/or vacation time would be the best route. Still, Anderson said he never said that and instead claimed he referred Matero to Chipotle’s benefits team. The court said the jury can determine who’s telling the truth and denied the motion for summary judgment.

Laborer claims Edwin's Greenhouse Construction violated ADA, leading to wrongful termination

The Pennsylvania Record

A person with a disability is suing Edwin's Greenhouse Construction Inc., a greenhouse contractor, citing alleged violations of the Americans with Disabilities Act.

Jason Coefer filed a complaint on Sept. 14 in the U.S. District Court for the Eastern District of Pennsylvania against Edwin's Greenhouse Construction Inc. alleging the greenhouse contractor denied full access to individuals with disabilities.

According to the complaint, the plaintiff alleges he was subjected to a hostile work environment by his fellow employees during his employment with the defendant as a laborer, including being mocked about his speech and hearing, laughed at, intentionally called by a different nickname, and referred to as "a retard," in addition to being denied increases in salary prior to his termination on March 19 on the pre-text that he was not working fast enough. 

The plaintiff holds Edwin's Greenhouse Construction Inc. responsible because the defendant allegedly terminated plaintiff's employment as retaliation for his complaining of disability discrimination and harassment, and escalated their hostility towards plaintiff.

The plaintiff requests a trial by jury and seeks judgment against defendant for damages, and compensate plaintiff to back pay, front pay, salary, pay increases, bonuses, insurance, and benefits. He is represented by Adam Lease of Karpf, Karpf & Cerutti PC in Bensalem.

The U.S. District Court for the Eastern District of Pennsylvania Case No. is 18-cv-03975.

United States: Florida Court Dismisses Website Accessibility Case, Clarifying "Nexus" Requirement For Stating A Claim Under The ADA

Mondaq News Alerts

Seyfarth Synopsis: Florida court rules that plaintiff must allege more than being unable to learn about a brick-and-mortar business to state a claim that an allegedly inaccessible website violates the ADA.

Allegations that an inaccessible website prevents a blind plaintiff from "learning" about a brick-and-mortar location are insufficient to state an ADA claim, according to one recent federal court decision in Florida. In Price v. Everglades College, the plaintiff alleged that he called a private university to learn about the institution, but was directed instead to its website. While attempting to visit the website, he allegedly discovered that his screen reader software could not access information provided there, and Plaintiff thereafter filed suit under Title III of the ADA. Defendant filed a motion to dismiss on the grounds that Plaintiff had failed to state an ADA claim.

The Court granted the motion. It held that allegations that the plaintiff could not learn about the university were insufficient, and that instead the plaintiff had to plead facts sufficient to demonstrate that the alleged digital barriers prevented him from enjoying access to the university's brick-and-mortar facilities. Plaintiff did not allege, for example, that he could not apply to the university, pay tuition, or use the student portal.

Courts in the 11th Circuit have required that a nexus exist between the website at issue and a physical business location (some courts from other Circuits do not follow this approach). Price clarifies that a plaintiff cannot satisfy this nexus requirement in this jurisdiction by alleging "the mere existence of some connection or link" between the inaccessible website, on one hand, and a brick-and-mortar location, on the other.

The decision is welcome news for businesses barraged by increasing numbers of website accessibility lawsuits in recent months and a challenging litigation landscape in 2018. The decision is also noteworthy for institutions of higher learning, which have also been targeted in these cases as reported in the national news media. Decisions such as Price may be helpful in defending serial ADA website lawsuits filed by individuals with only tenuous connections to the businesses and institutions they sue.

Service dog evicted from Ocean Medical Center ER, Jackson woman says

Asbury Park Press

Nicole Sorchinski went to the emergency room in an ambulance late Saturday after having a seizure at her Jackson home. But she said she was so distraught by what happened there that she left without treatment, checking herself out against medical professionals' advice.

Nala, her service dog, was evicted from the emergency room at Ocean Medical Center, according to Sorchinski, who has seizures as a result of a traumatic brain injury suffered during a car crash three years ago.

'Unacceptable': Lack of accessibility for disabled students continues despite complaints, investigations

The Nevada Sagebrush (blog)

From blocked sidewalks and heavy doors to a lack of wheelchair ramps and construction sites all around campus, accessibility for people with disabilities is an ongoing conversation at the University of Nevada, Reno.

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