Disabilities: Jury instruction immunizes employer from ADA claim
HR.BLR.com
This was a case about appropriate jury instructions under the ADA, but it nevertheless is instructive. Foremost, it teaches that there are no "per se" disabilities. When an employee claims that she has a disability, you should carefully analyze whether she has an impairment that substantially limits a major life activity. Having said that, you should probably err on the side of determining that the employee is disabled when there is doubt.
Further, although King Soopers prevailed in this lawsuit, it may have avoided liability only because Scavetta failed to present evidence of substantial impairment of particular systems. Had she presented evidence that her rheumatoid arthritis substantially limited the operation of her immune and/or musculoskeletal systems, she may have been able to convince the jury that she was disabled under the ADA.
If she had been able to meet that threshold requirement, the jury may have found the employer liable for failing to reasonably accommodate her. It is not advisable for an employer to rely on a technical failure of proof from the employee to prevail on an ADA lawsuit.
There is a substantial risk that the lawsuit might be lost, and even if the employer succeeds, it undoubtedly spent a substantial amount in attorneys' fees and litigation costs to prevail. The best practice is to engage in the interactive process in good faith to determine whether the employee is disabled and, if so, how to accommodate her.
Disability discrimination claim nixed by Texas court
HR.BLR.com
A recent disability discrimination case from the Austin Court of Appeals teaches us a valuable lesson: Facts matter; labels don't.
ADA requirements carry hefty price tag for school district
Brainerd Daily Dispatch
Meeting the Americans with Disabilities Act (ADA) requirements at three schools could cost about $813,000 for the Brainerd School District.
Most popular stories: P.F. Chang's, Papa John's face legal action
Nation's Restaurant News
P.F. Chang’s China Bistro Inc. was hit with a lawsuit that claims the company’s gluten-free menu pricing violates the Americans with Disabilities Act. In the lawsuit, moved last week to the U.S. District Court for Northern California in San Jose, Calif., plaintiff Anna Marie Phillips claimed P.F. Chang’s violates civil and disability rights by requiring gluten-free diners to pay higher prices. The suit seeks a class action on behalf of diners with celiac disease or gluten intolerance who ordered items from P.F. Chang’s gluten-free menu in California during the past four years. The restaurant company will not comment on any pending litigation, and the plaintiff’s lawyers did not return requests for comment.
Don't needle workers about vaccines
Crain's Chicago Business
A boss worried about an outbreak of measles in the workplace needs to tread lightly.
Reports of a growing number of measles cases have employers wondering what they should be doing. But federal and state laws can limit their ability to require workers to be vaccinated. And it may be risky to even ask staffers whether they've gotten a measles or other type of vaccination.
Nowhere to go: Lincoln man sues city over restroom access
13WMAZ
A local activist who drives a half-mile to go to the bathroom during city council meetings is suing the city to gain access to the restroom in the building where the meetings are held.
Byron Chapman, 62, uses a motorized wheelchair because of a spinal injury and complains that the restroom stalls at McBean Park Pavilion are too narrow to accommodate the chair.
Employment Law - February 2015
JD Supra
A New Boss Is Not a Reasonable Accommodation, Rules California Court
Why it matters: Granting summary judgment to an employer in a Fair Employment and Housing Act (FEHA) suit claiming disability discrimination, failure to accommodate, and failure to engage in the interactive process, a California federal court judge wrote that a new boss is not a reasonable accommodation. An employee alleged that her new boss treated her in “a negative and devaluing manner,” including inappropriate sexual comments, triggering a recurrence of mental health problems. While on medical leave, she told human resources she needed to have a new supervisor. The interactive process was unsuccessful and the plaintiff filed suit. The court tossed the discrimination claim, finding that the plaintiff was unable to prove she was otherwise qualified to perform the essential functions of her job because of her stated inability to work with her supervisor. Further, her failure to accommodate claim failed because her requested accommodation – a new supervisor – was unreasonable as a matter of law, the court said.
Detailed discussion: Marlene Alsup worked for U.S. Bancorp for several years as a regional manager before rising to the level of vice president and “performed her duties in a highly satisfactory manner.” In September 2012, however, Alsup was assigned a new boss. From the beginning, Alsup said he treated her “in a negative and devaluing manner” and made comments she found offensive and of an unwelcome sexual nature.
The new boss caused her history of mental illness to resurface, and she began to suffer panic attacks not only at work but also during off hours, as well as experiencing sleeping problems, inability to concentrate, and a feeling of hypervigilance.
A December 2013 write-up from her boss triggered serious problems, and her therapist placed her on a medical leave of absence. The doctor also informed the employer that Alsup had a diagnosis of Bipolar II and should be accommodated with “a switch in supervisors.”
Over the next few months, a human resources employee repeatedly reached out to Alsup. In multiple conversations and e-mails, Alsup said she could only work with a transfer away from the boss or a new supervisor in her existing position. U.S. Bancorp denied her requests.
Alsup filed suit under FEHA, claiming that the employer discriminated against her on the basis of her disability, failed to accommodate her disability, and failed to engage in the interactive process.
U.S. District Court Judge Kimberly J. Mueller disagreed.
“[I]n order to make out a prima facie case for disability discrimination under the FEHA, plaintiff must allege she could perform the essential duties of the job with or without reasonable accommodation,” the court said. “Because the plaintiff’s claimed disability stems from her inability to get along with her supervisor, and the only effect it had on her job was to render her unable to work with that supervisor, she has not and cannot allege she could perform the duties of her job with or without reasonable accommodations.”
Turning to Alsup’s failure to accommodate claim, Judge Mueller held that the request for a new boss was unreasonable as a matter of law. Lacking California precedent on the issue, the court looked outside the state and found “the overwhelming majority of courts have held a plaintiff may not couch a request for transfer as an accommodation for her disability, and many specifically hold that a transfer is an unreasonable accommodation as a matter of law,” citing decisions from the Third U.S. Circuit Court of Appeals and federal courts in the District of Columbia, Florida, Georgia, Illinois, and Pennsylvania.
Even without the case law, the court said the plaintiff failed to state a claim. “Plaintiff’s work environment could not have been modified or adjusted in a manner that would have enabled the plaintiff to perform the functions of her job,” the judge wrote. “Because the plaintiff here alleges the only possible accommodation would have been her transfer to a different supervisor, and has made no allegations that her workplace could have been modified or adjusted such that she could perform the essential functions of her job, she does not state a claim for failure to accommodate.”
Finally, Judge Mueller dismissed the plaintiff’s failure to engage in the interactive process claim. An HR employee repeatedly attempted to engage the plaintiff in the process, the court said, and tried to explore options for accommodations like applying for vacant positions with the bank. Reviewing the facts in the light most favorable to the plaintiff, “it may be an issue of fact whether the plaintiff refused to engage with defendant to determine a reasonable accommodation; however, defendant fulfilled its duty to engage in a timely, good faith interactive process with plaintiff for the purposes of determining effective reasonable accommodations,” the court concluded.
The judge also rejected Alsup’s implications that due to her mental illness, the employer should have engaged in the interactive process with someone other than her.
While the court dismissed the suit in its entirety, it did so with leave to amend.
To read the order in Alsup v. U.S. Bancorp, click here.
Working During FMLA Leave Can Violate Statute
Why it matters: Where are the boundaries for contact with an employee on leave pursuant to the Family and Medical Leave Act (FMLA)? Acknowledging that no bright-line rule exists regarding employee contact during FMLA leave, a federal court judge in Texas ruled that an employee who alleged she was required to work while on leave sufficiently alleged a violation of the statute. The employee claimed that during her leave, her supervisor required her to perform 20 to 40 hours of work. When she returned to work, she resigned and filed a suit alleging FMLA interference, among other claims. Denying the employer’s motion for summary judgment, the court attempted to draw a line. “[R]easonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference,” the court wrote. Employers should use care when contacting employees on FMLA leave.
A manager in the Ethics & Compliance Department at Genon Energy Systems, Joan Smith-Schrenk was charged with investigating, monitoring, and reporting potential regulatory or ethical violations. The department was busy and Smith-Schrenk worked 50 to 60 hours per week.
Although Smith-Schrenk’s work performance was generally satisfactory, her supervisor expressed concern regarding her communication skills. During one review, she provided the employee with a development plan.
Smith-Schrenk began missing work in order to take care of her mother as well as deal with her own health issues. A cyst on her neck began enlarging and an inconclusive biopsy led her to schedule surgery. Her supervisor recommended the surgeon for the procedure and the two often discussed Smith-Schrenk’s mother’s medical issues.
According to Smith-Schrenk, however, her supervisor was “immediately hostile” when she requested intermittent FMLA leave to care for her mother and increased her workload. Although all of the employee’s requests were granted, her absences caused disruption in the department. Her supervisor also noted that her communication problems were not improving and drafted a coaching plan.
Before she could present the plan, however, Smith-Schrenk took full-time FMLA leave. During her leave, she said her supervisor continued to call and e-mail her, requiring her to perform work assignments, including updating compliance cases, revising a safety review project, and dropping off files at the office – a total of 20 to 40 hours.
When Smith-Schrenk returned to work, she heard that a position similar to hers had been posted for employment. She was also presented with the previously prepared coaching plan. Citing the hostile work environment, Smith-Schrenk resigned and filed a lawsuit alleging violations of the FMLA as well as the Americans with Disabilities Act (ADA).
Reviewing the facts on the employer’s motion for summary judgment, the court said the plaintiff had not “set forth the type of repeated or extreme conduct that would constitute a hostile work environment.” For one thing, the busy department had legitimate reasons for posting a new position given the undisputed heavy workload. Even Smith-Schrenk’s subjective beliefs about her supervisor’s actions were outweighed by the facts that all her requests for leave were granted and the supervisor provided a referral for her surgeon.
The plaintiff also failed to offer sufficient evidence of a constructive discharge, U.S. District Court Judge Gray H. Miller wrote. The coaching plan was drafted prior to her FMLA leave and the job posting was based on the department’s needs.
“A reasonable employee would not have felt compelled to resign amidst these conditions,” the court said, and “receiving a performance plan upon her return does not amount to harassing conduct.”
Smith-Schrenk’s FMLA interference claim, however, survived. Although Genon argued that any work performed by the plaintiff was de minimis and done voluntarily, the court said that “asking or requiring an employee to work while on leave can cross the line into interference.”
Reviewing case law on the issue, the court found the general consensus to be that “reasonable contact limited to inquiries about the location of files or passing along institutional or status knowledge will not interfere with an employee’s [FMLA] rights; however, asking or requiring an employee to perform work while on leave can constitute interference.”
For example, courts have found that taking occasional calls about a job while on leave is a “professional courtesy” that does not interfere with FMLA rights; nor does contacting an employee on leave about issues like her decision to accept another position within the company, the execution of documents related to the decision, and ongoing salary negotiations. On the other end of the spectrum, mandating that the plaintiff respond to regular phone calls may constitute FMLA interference, as could checking in with the plaintiff on the sales leads he was expected to generate during his leave.
“By requesting an employee work during FMLA leave, an employer not only discourages the employee from using such leave, but precludes her from using such leave during that period of time,” Judge Miller said. “In sum, the employer has failed to ‘respect’ the employee’s FMLA ‘entitlements.’ ”
While Genon disputed that the plaintiff was asked to work or deliver files to the office, “this only creates a genuine issue of material fact precluding summary judgment on plaintiff’s FMLA interference claim,” the court said.
Therefore, the court dismissed the plaintiff’s suit except for the FMLA interference claim.
To read the opinion in Smith-Schrenk v. Genon Energy Systems, click here.