Court denies motion for summary judgment on alleged ADA violations involving employee's breast cancer
Madison County Record
U.S. District Judge David Herndon denied summary judgment to Gateway Regional Medical Center in an Oct. 30 ruling involving a suit brought by a former employee.
The lawsuit, filed by Carol Howard against the hospital and supervisor Mandi Handfelder, alleged violations of the Americans with Disabilities Act (ADA), and intentional emotional distress, claiming that the hospital refused to accommodate Howard's disability - breast cancer.
The defendants had argued in the motion that "this case involves nothing more that plaintiff’s hypersensitive reactions to objectively innocuous conduct, her unfounded assumptions regarding others’ actions and motivations, and her blatant disregard of the undisputed facts.”
Howard was an employee at Gateway's Veeder Clinic between 2014 and 2015. She was diagnosed with stage 2 breast cancer on Aug. 11, 2014.
As stated in the ruling, "that same day, Howard informed Handfelder of her breast cancer diagnosis," for which "Handfelder began harassing Howard as soon as she told Hanfelder about the cancer treatments."
After arriving 15 minutes late for work on Aug. 19, 2014, after an MRI scan, Howard was reprimanded by Handfelder, and broke into tears, fearing she would lose her job, the ruling states.
It goes on to state that right after starting chemotherapy, Howard told Handfelder she was protected by the ADA, for which Handfelder said she didn't know what it was. On Nov. 12, 2014, Howard requested 21 days of medical leave, which was approved. Another leave was requested on Jan. 28, 2015, being approved once again.
Almost a month later, Howard underwent a mastectomy and a breast reconstructive surgery. After the surgery, Howard told Handfelder that "that she would not return to work until Feb. 25, 2015." In light of that, Howard was advised to call hospital's human resources to apply for leave under Family and Medical Leave Act (FMLA).
The department did not answer the call. Nevertheless, Howard later found out she was not eligible, the ruling states.
Howard resigned on March 9, 2015, after having a request for accommodations ignored by her bosses, the ruling states.
Herndon dismissed the hospital's arguments for summary judgment, stating that "Howard has presented sufficient factual questions upon which a jury should be permitted to consider her claim for intentional infliction of emotional distress."
U.S. District Court for the Southern District of Illinois Case number 3:16-cv-01250-DRH-DGW
Winery Websites Must Comply With The Americans With Disability Act, But How?
Forbes
In a recent blog post the Napa and Sonoma law firm of Dickenson Peatman & Fogerty (DPF) a firm that deals with many legal aspects of the beverage alcohol industry explained, “ There is considerable ambiguity in the law as to which companies are required to make their websites Americans with Disability Act (ADA) compliant and what actually constitutes ADA compliance .”
US district court denies UPS Freight's request to vacate injunction relating to ADA
Legal News Line
An effort by UPS Freight, asking a federal court to vacate an injunction which prohibits the company from violating the Americans with Disability Act (ADA), was recently struck down in the U.S. District Court for the District of Kansas.
According to the U.S. Equal Employment Opportunity Commission (EEOC), the commission filed a lawsuit in 2017 against UPS for allegedly paying employees who were reassigned to "non-driving work" for certain reasons such as medical issues, 10 percent less than drivers not reassigned. The UPS policy was confirmed in a collective bargaining agreement (CBA) with the union, the EEOC said.
UPS argues that since the court issued the injunction, the company has reached a new CBA which is pending, however the federal court denied their request to vacate the injunction "under these tentative circumstances."
"The court's July judgment was well reasoned and its injunction both appropriate and justified under the law," EEOC St. Louis District regional attorney Andrea Baran said in a statement. "We are very pleased the court sided again with the commission and denied UPS Freight's ill-advised attempt to skirt its responsibilities under the ADA."
"This new order reinforces the importance of employers complying with the ADA and that doing so is not onerous," added EEOC senior trial attorney Grant Doty.
Settlement reached in NMU discrimination complaint
WNMU-FM
Northern Michigan University has reached a settlement with the U.S. Department of Justice after a student with a disability filed a complaint alleging discrimination.
The Mining Journal reports that the complaint filed in 2013 with the department's Civil Rights Division says the student told another student of her mental health struggles. The complaint alleges the university violated the Americans with Disabilities Act when it threatened to "dis-enroll" the student, require her to undergo a psychological assessment and sign a behavioral agreement.
WLUC-TV reports that the Justice Department found three current or former university students with similar allegations of discrimination.
The university must draft an ADA/Non-Discrimination Policy, modify a portion of the dean of students web page and develop a training program for faculty and staff within 60 days.
For The Disabled, Office Accessibility Is Often A Dealbreaker — But It Doesn't Have To Be
WBUR
Massachusetts law does not require all workplaces to be accessible to people with mobility impairments. It’s a problem advocates like me have been trying, unsuccessfully, to address for 18 years.
The Massachusetts Architectural Board (AAB) is the state board tasked with ensuring that spaces are accessible. A bill that would expand the power of the AAB, to cover employee spaces, has repeatedly gotten stuck in the Massachusetts legislature.
In the last legislative session, disability rights advocates finally learned the origin of our opposition: big business and real estate interests.
Perhaps these interests are motivated by a concern for their profits or a perception of costs associated with making employee spaces accessible. But this position is short-sighted in light of the economic benefit of providing more people with disabilities with the opportunity to work and pay taxes, and get off of public benefits. It’s also a fact that the effect of their work is to deny equal access to employment, which is a civil right.
Anyone could land in a wheelchair — because of an accident, an assault, disease or the aging process. What happens to those people if they can no longer work, because state law doesn’t require that they are able to access workspaces?
American Airlines Will Allow Fliers with Nut Allergies to Board Early to Wipe Down Their Seating Area
AviationPros.com
Passengers with nut allergies soon will be able to board American Airlines flights early to give them time to wipe down their seats and tray tables to get rid of nut crumbs or dust.
Disabled People With Chronic Health Issues Face A World Of Inaccessibility
HuffPost
“If you aren’t disabled and haven’t thought about these issues before, it’s time to take a look around. After all, disability is eventually guaranteed to all of us.”
New Jersey Plaintiff Failed to Prove His Obesity Met Standard of an ADA Disability - NWCDN New Jersey Member
WorkersCompensation.com
Richard Helmrich worked as an Assistant Director of Food and Beverage at Mountain Creek Resort. He was a large man, six-feet-tall with a body mass index between 40.27 and 47.53, above the threshold for obesity. During his employment with the Resort he informed his boss of his weight and heart conditions. His doctor diagnosed him as medically obese. He provided his boss with a note that his cardiologist prepared for him, restricting the amount of weight that he was medically permitted to lift.
Helmrich testified that several individual defendants at the Resort regularly made observations about his weight, some of them by the owner himself within earshot of other employees. One comment was that Helmrich needed to lose weight; another was that he needed to work harder at the gym to lose weight. Yet another comment was that he was still fat. Some of the comments were made in front of others, who would laugh at Helmrich’s expense.
On one occasion Helmrich notified his supervisor of one of these incidents in accordance with the Resort’s harassment policy. A chef at the Resort said that Helmrich was “too large” and not “attractive” enough to approach customers’ tables in the restaurant. Notwithstanding these kinds of comments, Helmrich never filed a formal complaint with Human Resources.
Helmrich did receive a written warning in July 2014 for poor performance. He believed that his boss, Mr. Polchinksi, was delegating additional duties to him beyond the scope of his job and holding him to a higher standard than his subordinates. He did not, however, tell anyone in supervision that he was being treated differently because of his weight.
Matters came to a head in December 2014 when his boss was promoted, thereby opening up the position of Director of Food and Beverage. Helmrich was not told about the vacancy or encouraged to apply. An employee who used to work under Helmrich by the name of Heaps was chosen for the position. When that occurred, Helmrich met with supervision to ask why he was not considered for the position of Director of Food and Beverage. He argued that he had the qualifications, holding an associate’s degree in hospitality management from Art Institute of New York.
Helmrich did not allege that he was denied the position due to his weight. The company advised Helmrich that he was not chosen for the promotion because he failed to improve his work performance after the July 2014 written warning. The company told Helmrich that he was a good asset and a “great second man in command.” He was assured that he would be trained for future growth.
Helmrich resigned from his position on December 29, 2014 due to his perception of a hostile work environment. He sued under both the ADA and New Jersey Law Against Discrimination. The District Court noted that the United States Third Circuit has not expressly adopted obesity as a disability that substantially limits a major life activity. The Court said, “Without excluding the possibility that obesity may under other circumstances constitute a disability under the ADA, the Court finds that it does not here.” The Court observed that Helmrich never claimed that his obesity “substantially limits one or more major life activities.” The Court added that although Helmrich had a weight lifting restriction, he did not dispute that his weight does not make it more difficult for him to stand, walk, bend or complete other movements necessary for him to work.
The Court next considered whether the Resort regarded Helmrich as being disabled. “There is no question, therefore, that Defendants ‘regarded’ Plaintiff as obese.” The Court said that is not enough because there was no evidence that the Resort perceived him as having an impairment. “Plaintiff does not argue that his weight limited his ability to stand, walk, bend, or complete other movements necessary for him to work.” The Court said that none of the defendants perceived Helmrich’s weight as physically interfering with his ability to do his job. The Court found that there was insufficient evidence to prove the Resort regarded Helmrich as having a disability under the ADA.
The case is instructive. It may be found at Helmrich v. Mountain Creek Resort Inc., (D.N.J. October 15, 2018). It shows that unfortunate remarks like those directed at the plaintiff may not be actionable in court if the plaintiff never tells anyone about them in HR or supervision of files a formal complaint.