Alaska Municipal Attorneys AssociationNovember 18-19, 2013

Anchorage, Alaska

Terrence S. WelchBrown & Hofmeister, L.L.P.

740 E. Campbell Road, Suite 800Richardson, Texas 75081

www.bhlaw.net

FROM SAME-SEX MARRIAGE TO OVERTIME FOR SYNCHING

MY BLACK BERRY: Recent Decisions Affecting the

Workplace

“The Times They Are A-changin’.”

— Bob Dylan

There have been significant decisions by the United States Supreme Court and other courts during the last several years that have rocked the workplace, resulting in discarding past notions of who is, or is not, married and how same-sex couples should be treated under the law by employers. Not surprisingly, there have been a multitude of cases that address more mundane issues, from overtime compensation under the Fair Labor Standards Act to obesity being considered a disability and the ongoing battle about what constitutes a reasonable accommodation under the ADA. The purpose of this paper is to provide a broad overview of recent cases and where applicable, actions by regulatory agencies in interpreting these new cases.

I. Same-Sex Marriage and the Death of DOMA

A. United States Supreme Court Cases

The two blockbuster United States Supreme Court cases on the topic of same sex marriage during the last term of the Court were United States v. Windsor,1 and Hollingsworth v. Perry.2 While not providing a detailed analysis of both of the cases, a brief review is nonetheless helpful.

Edith Windsor and Thea Spyer, a same-sex couple residing in New York, were lawfully married in Ontario, Canada in 2007. Ms. Spyer died in 2009, leaving her entire estate to Ms. Windsor. Ms. Windsor sought to claim the federal estate tax exemption for surviving spouses; however, she was barred from doing so by Section 3 of the Defense of Marriage Act (DOMA) (codified at 1 U.S.C. § 7),3 which provided that the term “spouse” only applies to a marriage between a man and woman. The Internal Revenue Service (IRS) found that the exemption did not apply to same-sex marriages, denied Ms. Windsor’s claim, and compelled her to pay $363,053 in estate taxes.

1 570 U.S. ___, 133 S.Ct. 2675 (2013).

2 570 U.S. ___, 133 S.Ct. 2652 (2013).

3 Section 3 of DOMA provides as follows:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

1 U.S.C. § 7.

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On November 9, 2010, a lawsuit was filed against the United States government in the United States District Court for the Southern District of New York, where Ms. Windsor sought a refund because DOMA singled out legally married same-sex couples for “differential treatment compared to other similarly situated couples without justification.” On February 23, 2011, U.S. Attorney General Eric Holder issued a statement from the Obama administration that agreed with the plaintiff’s position that DOMA violated the United States Constitution and said he would no longer defend the law in court. The Bipartisan Legal Advisory Group (BLAG) of the House of Representatives continued the defense of the law. On June 6, 2012, U.S. District Judge Barbara S. Jones ruled that Section 3 of DOMA was unconstitutional under the due process guarantees of the Fifth Amendment and ordered the federal government to issue the tax refund, including interest.4 The Second Circuit Court of Appeals affirmed the decision on October 18, 2012.5

BLAG and the U.S. Department of Justice (DOJ), as a nominal defendant, appealed the decision to the U.S. Supreme Court, which granted a writ of certiorari in December 2012. On March 27, 2013, the Supreme Court heard oral arguments and on June 26, 2013, issued a 5–4 decision declaring Section 3 of DOMA to be unconstitutional. The Court first held that although DOJ decided not to defend DOMA, the government retained a stake sufficient to support Article III jurisdiction because the unpaid refund is “a real and immediate economic injury.”6 Thus, there was a sufficient basis for the court to entertain jurisdiction over the case.7 DOMA was then determined to be unconstitutional as a deprivation of the equal liberty of persons under the Fifth Amendment. The Court noted that although the regulation of marriage has traditionally been within the authority of the states,8 DOMA, applicable to more than 1,000 federal statues and numerous federal regulations—such as Social Security, housing, taxes, criminal sanctions, copyright and veterans’ benefits—was directed to a class of persons that the laws of New York and 11 other states had sought to protect. 9 Justice Kennedy 4 833 F.Supp.2d 394 (S.D.N.Y. 2012).

5 699 F.3d 169 (2d Cir. 2012).

6 Windsor, 133 S.Ct. at 2686.

7 Interestingly, Justice Kennedy, writing for the majority, addressed the political nature of this case. “The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise. But this case is not routine. And the capable defense of the law by BLAG ensures that these prudential issues do not cloud the merits question, which is one of immediate importance to the Federal Government and to hundreds of thousands of persons. These circumstances support the Court’s decision to proceed to the merits.” Id. at 2689. 8 Id. at 2690-92.

9 Id. at 2694.

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wrote that DOMA is inconsistent with the principle that marriage laws may vary from state to state, but are consistent within each state. “The principal purpose [of DOMA] is to impose inequality . . . to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.”10 New York’s decision was a proper exercise of its sovereign authority and by seeking to injure the class New York sought to protect, DOMA violated basic due process and equal protection principles applicable to the federal government. Constitutional guarantees of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of the group. DOMA’s history and text indicated a purpose and practical effect to impose a disadvantage, a separate status, and a stigma upon those entering into same-sex marriages made lawful by the states. The law deprived some couples married under the laws of their states, but not others, of rights and responsibilities, creating two contradictory marriage regimes within the same state; it diminished the stability and predictability of basic personal relations. 11 Justice Kennedy concluded that

[DOMA] is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.12

On the same day that the Windsor opinion was issued, the Court also issued a second 5–4 decision in Hollingsworth v. Perry, a case related to California's constitutional amendment initiative barring same-sex marriage. The Hollingsworth decision effectively allowed same-sex marriages in that state to resume after the Court ruled that the proponents of the initiative lacked the requisite Article III standing to appeal in federal court based on its established interpretation of the case or controversy clause.

In 2008, the California Supreme Court held that limiting the official designation of marriage to opposite-sex couples violated the equal protection clause of the California Constitution.13 Later that year, state voters then passed a ballot initiative, Proposition 8, amending the state constitution to define marriage as a union between a man and a woman.14 Same-sex couples who wished to marry filed suit in federal court, challenging 10 Id.

11 Id. at 2693.

12 Id. at 2695.

13 In re Marriage Cases, 43 Cal.4th 757; 76 Cal.Reptr.3d 683; 183 P.3d 384.

14 Hollingsworth, 133 S.Ct. at 2659.

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Proposition 8 as being in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.15 Not unlike the position taken by the Obama Administration in Windsor, California state officials refused to defend the law; however, the federal district court allowed the initiative’s official proponents to intervene and the court subsequently declared Proposition 8 unconstitutional and enjoined its enforcement.16 State officials declined to appeal but the intervenors opted to appeal. The Ninth Circuit certified a question about Article III standing, to which the California Supreme Court answered that the official proponents of a ballot initiative had authority to assert the state’s interest to defend the constitutionality of the initiative when public officials refuse to do so. The Ninth Circuit, relying on that answer, concluded that petitioners had standing and affirmed.17 The Supreme Court vacated and remanded, holding that the intervenors did not have the requisite Article III “case or controversy” standing to appeal. While the Court determined the intervenors had standing to initiate this case against the California officials responsible for enforcing Proposition 8, once the federal district court issued its order, they no longer had any injury to redress—they had won—and state officials chose not to appeal.18 The intervenors had not been ordered to do or refrain from doing anything and their “generalized grievance” was insufficient to confer standing. “Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law.”19

B. So How Is The Federal Government Responding?

Since late June, the Federal Government has been in the process of responding to Windsor. Not surprisingly, federal regulations are being revised accordingly. Federal guidelines have been amended as follows:

● Federal Taxes. On August 29, 2013, in Revenue Ruling 2013-17, the Department of the Treasury and the Internal Revenue Service (IRS) ruled that same-sex couples, legally married in jurisdictions that recognize their marriages, will be treated as married for federal tax purposes. The ruling applies regardless of whether the couple lives in a jurisdiction that recognizes same-sex marriage or a jurisdiction that does not recognize same-sex marriage. Under Revenue Ruling 2013-17, same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA and claiming the earned income tax credit or child tax credit.15 Id. at 2660.

16 Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010).

17 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).

18 Hollingsworth, 133 S.Ct. at 2662.

19 Id.

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Any same-sex marriage legally entered into in one of the 50 states, the District of Columbia, a U.S. territory or a foreign country will be covered by the ruling; however, the ruling does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law. Same-sex marriage partners may file amended tax returns and choose to be treated as married for federal tax purposes for one or more prior tax years still open under the statute of limitations. Generally, the statute of limitations for filing a refund claim is three years from the date the return was filed or two years from the date the tax was paid, whichever is later. As a result, refund claims can still be filed for tax years 2010, 2011 and 2012. Some taxpayers may have special circumstances, such as signing an agreement with the IRS to keep the statute of limitations open, that permit them to file refund claims for tax years 2009 and earlier. Additionally, employees who purchased same-sex spouse health insurance coverage from their employers on an after-tax basis may treat the amounts paid for that coverage as pre-tax and excludable from income.20

● Immigration. On July 1, 2013, Secretary of Homeland Security Janet Napolitano issued the following statement:

After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.21

USCIS has done exactly that, and visas and green cards now extend to same-sex spouses. An FAQ issued by USCIS provides the following information about immigration and same-sex marriages: U.S. citizens or lawful permanent residents in a same-sex marriage can now sponsor their spouses for a family-based immigrant visa; U.S. citizens who are engaged to be married to a foreign national of the same sex can file a fiancé or fiancée petition; and same-sex couples who were married in a U.S. state or a foreign country that recognizes same-sex marriage may file an immigrant visa petition for the spouse, because as a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, it will apply all relevant laws to determine the validity of a same-sex marriage. The

20 Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law is found at http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questions-for-Same-Sex-Married-Couples. 21 See http://www.dhs.gov/news/2013/07/01/statement-secretary-homeland-security-janet-napolitano-implementation-supreme-court.

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domicile state’s laws and policies on same-sex marriages will not bear on whether USCIS will recognize a marriage as valid.22

● Family and Medical Leave Act. The U.S. Department of Labor issued its Guidance (Fact Sheet #28F)23 in mid-August confirming that same-sex married couples are entitled to the same benefits of the Family and Medical Leave Act (FMLA) as heterosexual married couples. The Guidance indicates that FMLA spousal leave entitlements extend to same-sex spouses that reside in states that recognize same-sex marriages. DOL now defines “spouse” as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including “common law” marriage and same-sex marriage.” An employer located in a state that does not recognize same-sex marriage does not have to grant FMLA leave to a same-sex married employee to care for that employee’s same-sex spouse if the same-sex married couple does not reside in a state that recognizes same-sex marriage. There is nothing in the DOL Guidance, however, that precludes an employer from having its own internal leave policy allowing for leave for a same-sex spouse. Until there is further judicial review, there will be disparate treatment of same sex married couples for FMLA leave purposes that will turn on the place of residence—DOL’s interpretation is unique because it focuses solely on the residence of the employee and not where the employer is located.

● Other Federal Regulations. Below is a summary of other regulations from the federal government about same-sex marriage:

Employees may cover their same-sex spouses under health care plans provided by their employers without having to pay taxes on the value of such coverage.

Same-sex spouses have full rights to continuation health care coverage

under the Consolidated Omnibus Budget Reconciliation Act (COBRA) in the event of a participant’s termination of employment, divorce or legal separation.

Employees may receive tax-free reimbursement under flexible spending

accounts, health reimbursement arrangements and health savings accounts for qualified medical expenses incurred by same-sex spouses.

22 See USCIS Frequently Asked Questions (FAQ) about Implementation of the Supreme Court Ruling on the Defense of Marriage Act (updated on July 1, 2013), and found at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fbfe0b8497b9f310VgnVCM100000082ca60aRCRD

23 See http://www.dol.gov/whd/regs/compliance/whdfs28a.htm.

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Same-sex spouses are entitled to the same special enrollment right under the Health Insurance Portability and Accountability Act (HIPAA) as opposite-sex spouses.

Same-sex spouses are entitled to a 50 percent qualified joint and survivor annuity (QJSA) or a 75 percent qualified optional survivor annuity (QOSA) under a participant’s pension plan, and the spouse’s consent is required to pay pension benefits in any other form.

Same-sex spouses are entitled to a 50 percent qualified preretirement survivor annuity (QPSA) where the participant dies prior to commencing pension benefits, unless the spouse consents to waive the benefit.

Same-sex spouses are entitled to receive 100 percent of a participant’s

Section 401(k) account balance at death, unless the spouse consents to another beneficiary.

Same-sex spouses are clearly eligible to receive a qualified domestic

relations order (QDRO) apportioning pension benefits upon divorce.

Same-sex spouses may roll over plan distributions to their own individual retirement account or employer plan, rather than only being able to roll over to an “inherited IRA” (which is subject to more restrictions).24

II. New Technology and Overtime Compensation

Under the Fair Labor Standards Act and its regulations, an employer must record and pay non-exempt employees for all hours “suffered or permitted to work,” without regard to the reason for the work.25 Hours worked includes time spent for the employer’s benefit, as well as time an employee cannot otherwise effectively use as his or her own, even if the employee is not actively engaged in performing a task.26 There is no such thing as “unauthorized” work; if management is aware the work is being done, the employer must record the hours and compensate the non-exempt employee

24 See http://about.bloomberglaw.com/practitioner-contributions/same-sex-marriage-and-erisa-in-the-windsor-era/.

25 29. C.F.R. § 785.11 (“Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.”).

26 29 C.F.R. § 785.7.

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accordingly.27 Nonetheless, in 1946 the United States Supreme Court created a “de minimis” exception to the general rule that non-exempt employees must be paid for all hours worked.28 Courts have noted that “[n]o rigid rule can be applied with mathematical certainty” when determining whether work time is de minimis for purposes of the Fair Labor Standards Act.29 Consequently, courts often employ a three-pronged test, considering: (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.30

The analytical and regulatory emphasis on “administrative difficulty,” “industrial realities,” and whether an employee’s working time is “practically ascertainable” in the context of the de minimis exception should serve as a signal to employers that they need to remain cognizant of the technological advances that are emerging to make it easier than ever to record hours worked. The U.S. Department of Labor even has an app to assist employees in independently tracking their hours, breaks and overtime.31

As a consequence of new technology, more cases are being filed about alleged entitlement to overtime compensation. A few representative cases follow:

● Kuebel v. Black & Decker.32 The plaintiff in this putative collective action was a Black & Decker employee whose job duties included travelling to various Home Depot stores. Black & Decker required this employee to synch his company-issued personal digital assistant (PDA) with Black & Decker’s server, which he would do several times a week by plugging it into his home computer. The employee sued for overtime compensation relating to his at-home work as well as other compensation issues. The employee admitted he never reported the overtime being claimed (and he thus submitted false timesheets) but testified he did so at his supervisor’s instruction. The court ruled the actual time spent working at home could be compensable and represented a fact issue for trial.

27 Id.

28 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946); see also 29 C.F.R. § 785.47 (“In recording working time under the [Fair Labor Standards] Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.”). 29 Lidow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984).

30 Reich v. Montfort, 144 F.3d 1329, 1333-34 (10th Cir. 1998); Lidow, supra note 66.

31 Press Release, U.S. Department of Labor, Keeping track of wages: The US Labor Department has an app for that! (May 9, 2011).

32 643 F.3d 352 (2d Cir. 2011).

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● Allen v. City of Chicago.33 Plaintiff Chicago police sergeant brought a wage-hour collective action claiming that he and other similarly-situated employees were required to use employer-issued PDAs and other electronic communication devices to perform work outside of normal working hours without receiving compensation, including overtime compensation. The court denied the City’s motion to dismiss because “whether the amount of time plaintiff worked off the clock is greater than a de minimis amount . . . is a matter of the proof of his claim, not a matter of the sufficiency and plausibility of his complaint.” The court questioned “the ability to treat on a class basis the broad range of situations in which police personnel may ‘respond’ to messages that are sent to them on PDAs, the extent to which those responses might constitute ‘work,’ and the extent to which work might not be compensable because it is ‘de minimis.’”

● West v. Verizon Communications, Inc.34 A personal account manager for Verizon sought overtime compensation on behalf of herself and all similarly situated meployees for work allegedly performed remotely using a company-issued BlackBerry. The court denied the collective action, but in a subsequent order, the court held that there were genuine issues of material fact whether the employee had worked the hours claimed. The difficulty for Verizon was that it had not required such employees to keep track of their work time nor did it track the hours these employees worked. Accordingly, when Verizon submitted evidence of Ms. West’s hours worked in the form of a list of the calls (incoming and outgoing) made on her BlackBerry (including the length of each call) and a list of the call log entries made by Ms. West on the Verizon website (including how many words each call log entry consisted of), Ms. West simply submitted her testimony that she did not work exclusively by BlackBerry. Considering the conflicting evidence, the court found that there was a fact issue.

Some employers have now adopted policies that explicitly require all non-exempt employees to record all of their time worked, even if it is just checking emails on their telephones. Such a policy also could prohibit employees from working “after hours,” thus prohibiting employees from checking emails on their phones. If an employee violates such a policy, the employee could be subject to disciplinary action. While this may seem harsh, with more collective actions being authorized by trial courts, large employers face ever increasing potential liability.

III. Obesity as a Disability

In the Equal Employment Opportunity Commission’s (EEOC) original ADA regulations, the EEOC determined that “except in rare circumstances, obesity is not considered a disabling impairment.”35 Cases generally required an individual to show

33 2011 WL 941383 (N.D. Ill. 2011).

34 2009 WL 2957963 (M.D. Fla. 2009).

35 29 C.F.R. § 1630.16 App. (§ 1630.2(j), “Substantially Limits”) (Pre-ADAAA text).

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some different underlying medical condition that is a disability and that causes obesity as a “symptom.” After the adoption of the Americans With Disabilities Act Amendments Act of 2008, the EEOC’s regulations still provide that “[t]he definition of the term “impairment” does not include physical characteristics such as . . . weight, . . . that are within “normal” range and are not the result of a physiological disorder.”36 Nevertheless, it is interesting to note that the EEOC may now consider obesity a disability under the ADAAA.

In 2010, in a case arising prior to the ADAAA, the EEOC filed a lawsuit in Louisiana against an employer, claiming that it had terminated an employee because of obesity. In a somewhat surprising ruling the federal district court sided with the plaintiff, finding that severe obesity may qualify as a disability, regardless of the cause.37

Lisa Harrison was slightly over five feet in height and weighed 527 pounds when she was fired from her job in 2007 at a Louisiana drug addiction treatment center. She had been hired in 1999 and at that time, Ms. Harrison weighed more than 400 pounds. She contended in her EEOC charge that she was “discriminated against in violation of the Americans with Disabilities Act (ADA), in that [she] was regarded as having a disability.” Ms. Harrison passed away on November 1, 2009, and the official cause of death listed on her death certificate was morbid obesity. Additionally, her death certificate listed hypertension, diabetes and congestive heart failure as other “significant conditions contributing to death.” While the court noted that Ms. Harrison was a qualified individual with a disability under the ADA, it noted that she “was severely obese, which is an impairment under the ADA [and] she was actually disabled as a result of her severe obesity because of the resulting diabetes and heart problems.” Additionally, there was evidence that Ms. Harrison “was regarded by Defendant as being substantially limited in the major life activities of walking, being mobile, and working,” and the court noted there was “sufficient evidence that supports the notion that [Defendant] regarded her as disabled based upon her supervisor's comments.” The key contested issue for trial was whether Ms. Harrison's disability was the cause of her termination from Family House.38 What is noteworthy about this case was that the EEOC filed suit on Harrison’s behalf and took an expansive view of obesity as a disability.

Not surprisingly, after the ADAAA’s effective date in 2009, the “regarded as” prong of a disability claim based on obesity is now an easier threshold than under pre-ADAAA case law. In Lowe v. American Eurocopter,39 a federal district court in Mississippi held that an obese receptionist, who alleged that her weight affected her

36 29 C.F.R. § 1630.16 App. (§ 1630.2(h), “Physical or Mental Impairment”).

37 EEOC v. Resources for Human Development, 2012 WL 669435 (E.D. La. 2012).

38 Id.

39 2010 WL 5232523 (N.D. Miss. 2010).

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ability to walk, could proceed with her “regarded as” having a disability claim40 because her former employer harassed her based on her use of disabled parking. She also alleged that (i) her weight affected the major life activity of walking (she was “unable to park and walk from the regular parking lot”); and (ii) her “[e]mployer was informed of this situation [referring to her obesity and her inability to walk from the regular parking lot].” The Court read this allegation as an attempt by the plaintiff “to show that her employer regarded her as having such a disability.” The court noted that under the ADAAA, an individual is now not required to demonstrate that the disability she is regarded as having is an actual qualified disability under the ADA or that it substantially limits a major life activity41; rather, the ADAAA requires a plaintiff to only show “that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Thus, a plaintiff now might be considered disabled due to obesity under the ADA if an employer perceived the employee’s weight as an impairment.42

IV. Is It a Reasonable Accommodation for Fern to Sit in a PlasticLawn Chair for Half of Her Shift?

Since the focus of any disability inquiry no longer rests on the interpretation of whether an individual is disabled, but instead whether (i) employers have complied with their statutory obligations and (ii) discrimination has occurred, the safer course is to assume that all employees suffer from no disabilities and if indeed there is an impairment, assume the ADA applies and the employee qualifies for some sort of reasonable accommodation. The purpose of the ADAAA, in part, was to broaden the restrictive definitions that often had been judicially imposed, of course including the Sutton trilogy43 of Supreme Court cases. As a consequence, in the cases determined to date, few defendants have been successful. One notable exception is EEOC v. Eckerd Corp.44

40 Under the ADA, as amended, a disability is “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).

41 See 42 U.S.C.A. §§ 12101(1)(C), (3).

42 Id.

43 The three “Sutton trilogy” cases are Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999).

44 2012 WL 2726766 (N.D. Ga. 2012).

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Fern Strickland began working as a cashier at Eckerd’s in 1992. In 2000, Ms. Strickland transferred to a different Eckerd’s store, where she continued to work as a cashier. Rite Aid purchased the Eckerd Corporation in June 2007, and Ms. Strickland worked as a cashier for the Rite Aid store from the date of the acquisition until she was terminated on January 29, 2009.

Ms. Strickland was diagnosed with osteoarthritis in both of her knees in June 2001. Her condition made it difficult for her to walk without the assistance of a cane or to stand for prolonged periods of time. At some point in 2001, Ms. Strickland began intermittently sitting in a chair at work to relieve pain in her knees, having knee replacement surgery in her right knee in 2006. Her knee pain nevertheless persisted and she continued to use the chair at work.

In March 2008, Larry Frisbie became the district manager of the Rite Aid store. Several months later, Mr. Frisbie and Human Resources Manager Linda Sheffield visited the store and observed Ms. Strickland sitting in a plastic lawn chair behind the counter. Ms. Sheffield was perplexed by this observation because Rite Aid generally did not permit cashiers to sit while they were on duty and she had never seen a cashier sitting in this manner. According to Mr. Frisbie, cashiers were required to productively work on the sales floor stocking, cleaning and performing other housekeeping and general store duties when they did not have a customer at the register.

When Mr. Frisbie and Ms. Sheffield asked Ms. Strickland why she was sitting behind the counter, Ms. Strickland informed them that she had provided Rite Aid a doctor’s note concerning her need to use the chair at work. Following the store visit, Ms. Sheffield checked Ms. Strickland’s file for a doctor’s note and found one from January 2007. The note stated that Ms. Strickland “requires a stool or chair to sit in at work . . . throughout the day, and most of the day due to severe arthritic symptoms.” After reviewing the note and speaking with Ms. Strickland, Ms. Sheffield determined that she needed more information about Ms. Strickland’s limitations as well as her work habits and ability to meet the requirements of the cashier position.

Upon further investigation, Ms. Sheffield was informed by the store manager, Robin Jean, that Ms. Strickland had been permitted to sit intermittently and at her discretion for several years due to her arthritic symptoms; however, Ms. Sheffield did not find any evidence that Eckerd or Rite Aid had ever formally approved a sitting accommodation for Ms. Strickland. Moreover, Ms. Sheffield surmised from her interview with Ms. Jean that Ms. Strickland’s frequent sitting was causing productivity and personnel problems for the store.

Based on her preliminary inquiries, Ms. Sheffield concluded that the 2007 doctor’s note was outdated and vague concerning Ms. Strickland’s precise limitations. Accordingly, Ms. Sheffield requested an updated and more specific doctor’s note regarding Ms. Strickland’s medical restrictions. Per Ms. Sheffield’s request, Ms. Strickland provided a doctor’s note in December 2008 stating that she “requires a chair

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at checkout and limited to 15 minutes or less at a time due to osteoarthritis.” In an accompanying handwritten note, Ms. Strickland indicated that “Dr. Ellis’s nurse ‘Allison’” could provide more information if necessary. In addition to requesting an updated doctor’s note, Ms. Sheffield asked Rite Aid Loss Prevention Manager Gibson to review security surveillance tapes over the register to determine how much time Ms. Strickland spent sitting idly and how much time she spent working productively. By mid-January 2009, Mr. Gibson had reviewed four days of video footage from the first week of January 2009 and he reported to Ms. Sheffield that, on those four days, Ms. Strickland was sitting down idly for about half of her shift. A loss prevention associate reviewed two additional days of tape and reported similar findings.

After reviewing the updated doctor’s note and the loss prevention reports, Ms. Sheffield determined that she and Mr. Frisbie needed to meet with Ms. Strickland to determine whether they could find an appropriate accommodation for her. They scheduled a meeting with Ms. Strickland on January 15, 2009. The stated purpose of the meeting was for Ms. Sheffield and Mr. Frisbie to engage in an interactive dialogue with Ms. Strickland so that they could better understand her restrictions and try to identify reasonable accommodations. During the meeting, Ms. Sheffield and Mr. Frisbie advised Ms. Strickland that they had received an updated doctor’s note, but that the note still was unclear about Ms. Strickland’s limitations. They also informed Ms. Strickland about the results of the loss prevention surveillance review indicating that Ms. Strickland was sitting down idly for about half of her shift. At some point in the meeting, Ms. Sheffield and Mr. Frisbie asked Ms. Strickland about the permanency of her requested sitting accommodation. Ms. Strickland responded that she would likely need the accommodation forever.

Shortly after the January 15 meeting, Ms. Strickland provided Ms. Sheffield and Mr. Frisbie a new note from her doctor stating that she “needs to sit at least 30 minutes per hour worked throughout the work day.” The new note was consistent with the amount of time that Ms. Strickland had been observed to be sitting idly on video surveillance tapes; however, the note did not provide a rationale for the half-time sitting restriction or a more specific assessment of Ms. Strickland’s limitations, as requested by Ms. Sheffield and Mr. Frisbie. Based on their most recent discussions with Ms. Strickland and the new doctor’s note, Ms. Sheffield and Mr. Frisbie concluded that they still needed more information about Ms. Strickland’s restrictions and needs to identify a reasonable accommodation.

On January 19, 2009, Ms. Sheffield faxed a written cashier job description to Dr. Ellis and asked him to review it to ensure that Ms. Strickland was medically capable of performing the essential functions of the job. The purpose of Ms. Sheffield’s request was to determine whether Ms. Strickland’s doctor could recommend any accommodation other than the “very restrictive 50% sitting accommodation” requested by Ms. Strickland and indicated by the doctor’s most recent note. Dr. Ellis never responded to Ms. Sheffield’s job description inquiry and Ms. Strickland admitted that she never asked Dr. Ellis to provide the requested information or otherwise followed up to see if he had responded to Ms. Sheffield’s inquiry.

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Within the next several days, Ms. Sheffield concluded that Rite Aid could not provide Ms. Strickland with the sitting accommodation that she had requested. Mr. Frisbie, as well as Ms. Sheffield’s direct supervisor, concurred. Mr. Frisbie and Ms. Sheffield met with Ms. Strickland on January 29, 2009, to tell her that Rite Aid would not allow her to sit for half of each hour that she worked. Per Ms. Sheffield’s recommendation and accommodation decision, Ms. Strickland was not permitted to continue working on January 29, 2009, and Ms. Strickland was terminated on that date.

In her lawsuit (filed on her behalf by the EEOC), Ms. Strickland contended that (i) she was not provided a reasonable accommodation for her disability, and (ii) was then terminated on account of her disability, in violation of the ADA. To prevail on her reasonable accommodation claim, Ms. Strickland was required to prove that she had a disability (which was assumed here) and that she was qualified for the Rite Aid cashier position. She also had to prove that the defendant failed to provide a reasonable accommodation for her disability. For the defendant to avoid liability, it was required to show that Ms. Strickland’s accommodation would impose an undue hardship on its business or operations. Not surprisingly, the defendant contended that Ms. Strickland was not a qualified individual because she could not perform the essential functions of the cashier position, either with or without a reasonable accommodation. Moreover, the defendant asserted that Ms. Strickland’s requested accommodation of sitting for half of every hour she worked would impose an undue hardship on its business.

The court determined there was no question that the cashier job at issue here had significant physical requirements and that the defendant’s written job description for the cashier position included several customer service and housekeeping duties that are physically demanding, including unloading merchandise, stocking shelves and end-caps, building merchandise displays, and ensuring that the store is always clean and visually pleasing. To accomplish those duties, the job description specified that cashiers must be able, among other things, to (1) regularly stand dynamically for long periods of time without a break, (2) regularly walk about, (3) occasionally stand statically for long periods of time without a break, and (4) occasionally lift and carry up to fifty pounds. Consistent with the written job description, the store manager and district manager testified that cashiers were expected to productively work on the sales floor, rather than sit idly, when they did not have a customer at the register. According to Mr. Frisbie, cashiers spent much of their time at work walking customers to a department, cleaning, stocking shelves, unloading trucks, implementing price changes and performing other inventory duties throughout the store. For that reason, cashiers were not permitted to sit while on duty and they were expected to stay busy doing tasks that generally required movement around the store.

The court, crediting Ms. Strickland’s testimony and her doctor’s assessments, wrote that Ms. Strickland did not meet the physical requirements described in the written job description, and could not perform many of the tasks identified by her employer as essential, without an accommodation. The determinative question was whether Ms. Strickland could perform the essential job functions with a reasonable accommodation,

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and the court wrote that the EEOC had not met that burden with respect to Ms. Strickland.

The only accommodation that Ms. Strickland ever identified was to be allowed to sit in a chair for at least half of her work day and the EEOC did not explain how sitting idly for half of the work day would enable Ms. Strickland to (1) work productively on the sales floor when there is not a customer at the register, or (2) meet the physical demands required to assist with truck unloads and perform regular stocking, cleaning and inventory-related duties. In fact, the court wrote that the sitting accommodation would simply eliminate, rather than enable Ms. Strickland to perform, many of the essential functions of the cashier job and that the proposed accommodation was per se unreasonable.

The EEOC also argued that the accommodation was nevertheless required by the ADA because Ms. Strickland had been allowed to sit for the last eight years of her employment without incident. The defendant conceded that Ms. Strickland began using a chair intermittently at work in 2002, but during the first five years that Ms. Strickland was allowed to sit, her store was operating as an Eckerd rather than as a Rite Aid. When Rite Aid purchased Eckerd in 2007, it reduced the payroll budget and correspondingly increased the expectations of its cashiers. Assuming that the sitting accommodation was reasonable for an Eckerd cashier, it was not necessarily feasible once the store became a Rite Aid, as evidenced by the fact that Mr. Frisbie and Ms. Sheffield began questioning Ms. Strickland about her sitting within about a year of the acquisition. In any case, the court wrote, it is well-settled that an employer’s previous willingness to provide a certain accommodation does not establish that the accommodation is reasonable or required. Additionally, the EEOC contended that the functions that Ms. Strickland was unable to perform were not essential because she was not personally asked to do them during the last several years of her employment. On this point, the store manager testified that she exempted Ms. Strickland from any physically demanding tasks and that she allowed her to sit frequently during the work day. The court determined that as with any other type of voluntary accommodation, an employer does not concede that a job function is unessential by temporarily removing the function from a disabled employee’s duties.

Finally, the last effort by the EEOC was to suggest that the defendant was liable under the ADA as a result of its failure to discuss alternative accommodations that might have enabled Ms. Strickland to perform the essential functions of her job. The court disposed of this contention summarily, holding the Eleventh Circuit has held that an employer has no affirmative duty even to engage in an interactive process where the disabled employee fails to identify a reasonable accommodation—the only accommodation that Ms. Strickland identified during her employment with the defendant was per se unreasonable. The court wrote that “[e]ven now, neither Strickland nor the EEOC can point to any accommodation that would enable Strickland to perform the essential functions of the cashier job. Given Strickland’s acknowledged physical limitations, it is doubtful that any such accommodation exists.” To the extent that the ADA required an interactive process in this case, it was determined that the defendant

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clearly met its burden in that regard—Mr. Frisbie and Ms. Sheffield conducted an investigation during which they gathered information from various sources concerning Ms. Strickland’s condition, her work habits, and her ability to perform the cashier job in spite of her physical limitations. They subsequently met with Ms. Strickland several times, at least once with the express purpose of identifying and discussing potential accommodations. Having fully engaged in a dialogue with Ms. Strickland about her limitations and ability to be accommodated, the court wrote that the defendant was not liable under the ADA for failing to consider accommodations that Ms. Strickland herself never identified or requested.

Based on the foregoing, the district court concluded that the sitting accommodation requested by Ms. Strickland was not only unreasonable, it was patently incompatible with the essential functions of the cashier job as identified by management and routinely performed by every other cashier except Ms. Strickland. It was undisputed that Ms. Strickland never identified an alternative reasonable accommodation, and there was no indication that such an accommodation exists. Accordingly, Ms. Strickland was not a “qualified individual” under the ADA.

The court next addressed the “undue hardship” defense. An accommodation is an undue hardship when it can only be accomplished with “significant difficulty or expense” to the employer.45 To determine whether that is the case, a court considers several factors, including the nature and cost of the accommodation and its impact on an employer’s operations and workforce.46 Accommodations that result in other employees having to work harder or longer are often denied on the ground of undue hardship.47

The EEOC acknowledged that Rite Aid operates on a lean staffing model. There are generally only one or two cashiers and a store manager or other supervisor on duty during any given shift. In addition to checking out customers at the register, cashiers are responsible for a number of other customer service and housekeeping duties, including unloading merchandise, stocking shelves, cleaning, working in the photo lab, and assisting customers with their shopping needs. To fulfill those duties, cashiers are expected to productively work on the sales floor any time they do not have a customer at the register. The court noted that given the defendant’s business model, having a cashier sit idly for half of her shift would necessarily cause productively and morale issues. In fact, there was undisputed evidence that Ms. Strickland’s sitting interfered with the defendant’s operations in a number of ways. Ms. Strickland admitted that she (1) did not work in the photo lab, (2) only mopped the floor two or three times during her

45 See 42 U.S.C. § 12111(10)(A).

46 Id. at § 12111(10)(B).

47 See Dey v. Milwaukee Forge, 957 F.Supp. 1043, 1052 (E.D. Wis. 1996) (“An accommodation that would result in other employees having to work harder or longer is not required under the ADA”); and Pate v. Baker Tanks Gulf S., Inc., 34 F.Supp.2d 411, 417 (W.D.La.1999)(holding same).

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entire Eckerd/Rite Aid employment, and (3) helped stock only a small fraction of the store, and there was testimony that other Rite Aid employees became frustrated by Ms. Strickland’s low productivity.

The EEOC countered that the sitting accommodation was essentially cost-free because Ms. Strickland purchased her own chair, and that the defendant can easily absorb any impact associated with the accommodation because it is a large corporation with over 4,700 stores and 80,000 employees. The court held that these arguments failed to account for the true cost of the accommodation and its impact on the particular store where Ms. Strickland worked. Every employee, including Ms. Strickland, testified that the cashier job required frequent movement throughout the store in order to accomplish a variety of tasks that are essential to the operations of the store. At any given time, there were only one or two cashiers who are available to perform the required work. While Ms. Strickland was sitting, the work was either being done solely by one person or not being done at all. The court wrote that the defendant’s size does not ameliorate the impact of that arrangement on the productivity and morale of the specific store. Therefore, the requested sitting accommodation met the definition of “undue hardship” under the ADA.

V. Plaintiffs Almost Always Get Their ADA Day in Court The news for plaintiffs is much better. Although Rite Aid ultimately prevailed in

the district court, courts around the nation have been far more sympathetic to plaintiffs, at least allowing them to have their day in court to attempt to prove some sort of disability discrimination. Again, many cases are unreported, but do serve to show that courts are far more sympathetic to plaintiffs’ disability discrimination claims after the ADAAA than before its adoption.

In LaPier v. Prince George’s County,48 Steven LaPier began training as a student officer at the Police Department sometime in October 2008. Mr. LaPier alleged in his lawsuit that he witnessed “what he considered inappropriate and unprofessional conduct by the police instructors” from the “very first day of the Academy.” He alleged various examples of this conduct—e.g., the instructors’ use of “foul language”; the instructors’ forcing the cadets to fold clothes for weeks; an instructor’s punching a hole in a wall and “telling” a cadet to pay for it; and the instructors’ forcing students to change in a parking lot “at some point during the winter months.” Although Mr. LaPier alleged that he and other student officers were subjected to “demeaning and dehumanizing treatment” on a daily basis, he alleged no details regarding such treatment. He also alleged that he communicated these concerns to Major David Morris who, at some point, communicated them to “appropriate personnel” at the Department.

On April 9, 2009, Mr. LaPier passed out during a training run. One or more doctors diagnosed him with Osler–Weber–Rendu syndrome, which is a chronic blood disorder that causes decreased oxygen in the blood. Mr. LaPier resumed his normal

48 2012 WL 1552780 (D. Md. 2012).

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training activities after a weeklong period during which his doctors advised him to perform only light work. In a letter dated May 5, 2009, one of Mr. LaPier’s doctors informed the County that Mr. LaPier was fit to resume normal training activities.

The County’s Medical Advisory Board (MAB) met on June 4, 2009. The MAB reviewed Mr. LaPier’s medical records, determined him to be unfit for duty, and recommended his separation from the Police Department. The Police Chief advised Mr. LaPier of the Board’s recommendation in a letter that the Chief signed on June 9, 2009, and delivered on June 18, 2009. Mr. LaPier appealed to the County Personnel Board the MAB’s recommendation that the Chief terminate him. Mr. LaPier was represented by legal counsel during this appeal and was permitted to produce witness testimony on his behalf. Mr. LaPier also alleged that the Personnel Board made a decision and transmitted it to the County’s law office for review, but that the County’s law office unjustifiably failed to permit the Personnel Board’s decision to issue.

On June 17, the day before Mr. LaPier received the termination letter, he learned of a cheating scandal in which instructors were spoon-feeding exam answers to police cadets. Apparently, on the same day, Mr. LaPier informed Major Morris of his discovery, who in turn informed the Chief.

On October 14, 2010, Mr. LaPier filed a complaint containing six counts. While not addressing the civil rights violations alleged by Mr. LaPier in his lawsuit, he asserted a claim for violations of the ADA and ADAAA, along with a claim for violation of the Rehabilitation Act of 1973.

In brief, the County argued that Mr. LaPier was not a qualified individual with a disability under the ADAAA. An individual can show that he is disabled in three ways, only two of which are relevant to this case, under the ADAAA. An individual can show that he suffers from “a physical . . . impairment that substantially limits one or more major life activities of such individual.”49 Alternatively, an individual can show that his employer regarded him as having such an impairment.50

Under the ADAAA, the court noted that an individual has an actual disability where he suffers from a physical impairment that substantially limits at least one major life activity.51 One can divide this definition of disability into three prongs: (1) whether someone suffers from a physical impairment; (2) whether the physical impairment limits at least one of the person’s major life activities; and (3) whether such limitation is substantial.

In this case, the court determined that Mr. LaPier had adequately alleged that he

49 42 U.S.C. § 12102(1)(A).

50 Id. § 12102(1)(C).

51 See id. § 12102(1)(A).

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had a physical impairment—a chronic blood disorder. Further, the court wrote that Mr. LaPier had sufficiently stated that this impairment limited a major life activity. The ADAAA defines “major life activities” to include “breathing,” as well as “respiratory” and “circulatory” functions.52 Here, Mr. LaPier had alleged that he passed out on account of a chronic blood disorder that causes decreased oxygen in the blood, and at a minimum, the court noted that this event would seem to implicate breathing, respiration, and/or circulation.

Therefore, the only question for the court was whether Mr. LaPier had satisfactorily stated that his blood disorder “substantially” limited a major life activity. As the court noted, the ADAAA does not define the phrase “substantially limits.” In an attempt to fill this gap, the court reviewed the ADAAA’s legislative history and concluded that “although the [ADAAA] evinces Congress’s intent to lower the threshold for demonstrating a disability, the impairment’s severity must rise above a floor of material restriction.”

Here, at a minimum, the court determined that Mr. LaPier had suitably asserted that his blood disorder substantially limited the major life activities of breathing, respiration, and/or circulation. “To reiterate, Plaintiff alleges that he suffers from a chronic blood disorder that, inter alia, causes decreased oxygen in the blood. Plaintiff maintains that he has experienced ‘bleeding events’ from his adolescence. Plaintiff further avers, and Defendants do not dispute, that Plaintiff lost consciousness during a training activity. In light of these allegations, it is plausible that Plaintiff’s blood disorder limits his ability to engage in major life activities (e.g., breathing) compared to most people in the general population. Anything less would make a mockery of the ADAAA’s mandate that ‘[t]he definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.’”53 Accordingly, the court held that Mr. LaPier had stated a cognizable claim for actual disability.

The next issue addressed by the district court related to Mr. LaPier’s allegation of a perceived disability. The ADAAA provides that disability means being “regarded as” having an impairment that substantially limits at least one major life activity.54 An employee may satisfy this definition by showing that his employer subjected him to discrimination “because of a . . . perceived . . . impairment whether or not the impairment limits or is perceived to limit a major life activity.”55 Here, Mr. LaPier alleged that the County perceived him as disabled because he provided the County with

52 Id. § 12102(2)(A)-(B).

53 See 42 U.S.C. § 12102(4)(A); see also 29 C.F.R. § 1630.2(j)(1)(i) (“‘Substantially limits’ is not meant to be a demanding standard.”).

54 See 42 U.S.C. § 12102(1).

55 Id. § 12102(3)(A).

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medical documentation of his blood disorder and the County relied on such documentation in determining him to be physically unfit for duty. The County did not dispute these assertions.

Instead, the County contended that Mr. LaPier’s blood disorder was “transitory and minor” and, therefore, did not fall under the ADAAA’s “regarded as” definition of disability.56 The court wrote that the foregoing discussion, however, demonstrated that Mr. LaPier had adequately alleged that his blood disorder was more than minor. Moreover, the ADAAA defines “transitory impairments” as those with “an actual or expected duration of 6 months or less.”57 In this case, by contrast, Mr. LaPier maintained that he has suffered from his blood disorder since he was an adolescent. Therefore, the court determined that the County’s argument was without merit and that Mr. LaPier had stated a cognizable claim for perceived disability.

Alternatively, the County contended that Mr. LaPier had failed to state a prima facie case for disability discrimination. In this case, as the court explained, Mr. LaPier had suitably asserted that he came within the ADA’s protected class because he had stated a cognizable claim that he is disabled under the ADAAA. Although Mr. LaPier’s allegations were “somewhat sparse,” they sufficed to state that Mr. LaPier was performing at a level that met the County’s legitimate expectations. Nevertheless, in light of these admittedly sparse allegations, the court held that Mr. LaPier had stated a facially plausible claim that he can satisfy the elements of a prima facie case. The court also held that because Mr. LaPier had stated a cognizable claim for disability discrimination under the ADAAA, “it forcibly follows that he has stated a cognizable claim for disability discrimination under the Rehabilitation Act.”

VI. Recent ADA Cases: Mostly Victories for Plaintiffs

Below is a listing of cases where plaintiffs generally have been successful, at least by “lowering the bar” to survive motions to dismiss and other pleas.

● Gibbs v. ADS Alliance Data Sys.58 The court denied defendant’s motion for summary judgment and held that carpal tunnel syndrome that is debilitating in one hand may constitute a disability under the ADAAA. The court stated that under the new law, “Congress intended to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis and that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.”

56 See id. § 12103(3)(B).

57 Id.

58 2011 WL 3205779 (D. Kan. 2011).

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● Kinney v. Century Services Corp.59 Plaintiff had isolated bouts of depression, which was debilitating when active, but did not impact her work performance when it was inactive. The district court denied defendant’s motion for summary judgment and held that although intermittent depressive episodes were clearly not a disability prior to the ADAAA’s enactment, plaintiff’s depression raised a genuine issue of fact as to whether she is a qualified individual under the Amendments Act.

● Feldman v. Law Enforcement Assoc.60 One plaintiff had episodic multiple sclerosis and the other plaintiff had TIA, or “mini-stroke.” The court found that the multiple sclerosis was clearly a disability under the ADAAA since the statute specifically states that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” In addition, the recent EEOC regulations for the Amendments Act specifically list MS as a disability. As to the plaintiff suffering from TIA, the court held that “while the duration of [plaintiff’s] impairment may have been relatively short, the effects of the impairment were significant”, and therefore, he also alleged sufficient facts at the initial stage of the case.

● Chamberlain v. Valley Health Sys.61 Plaintiff adequately alleged that she was “regarded as” disabled as a result of her visual field defect which made fine visual tasks more difficult. The court denied summary judgment and held that the issue of whether the employer believed that plaintiff’s impairment “was both transitory and minor must be decided by a jury” given that plaintiff submitted an affidavit stating that one of her supervisors insisted that plaintiff was completely unable to work as a result of her vision problem.

● Cohen v. CHLN, Inc.62 Plaintiff alleged that he suffered from debilitating back and leg pain for nearly four months before his termination. The court denied summary judgment and held that under the less restrictive standards of the ADAAA, plaintiff has offered sufficient evidence to raise an issue of fact as to whether he was disabled at the time of his termination. While defendant claimed that his condition was of too short a duration, the court disagreed and found that the ADAAA mandates no strict durational requirements for plaintiffs alleging an actual disability.

● Norton v. Assisted Living Concepts, Inc.63 The court denied summary judgment and held that renal cancer qualified as a disability under the ADAAA. The fact that plaintiff’s cancer was in remission when he returned to work is of no consequence since there is no dispute that renal cancer, “when active,” constitutes a physical 59 2011 WL 3476569 (S.D. Ind. 2011).

60 779 F.Supp.2d 472 (E.D.N.C. 2011).

61 781 F.Supp.2d 305 (W.D. Va. 2011).

62 2011 WL 2713737 (E.D. Pa. 2011).

63 786 F.Supp.2d 1173 (E.D. Tex. 2011).

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impairment under the statute. Moreover, cancer, when active, substantially limits the major life activity of normal cell growth, as defined by the statute and the EEOC regulations regarding the Amendments Act. See also Meinelt v. P.F. Chang’s China Bistro, Inc.64

● Coffman v. Robert J. Young Co., Inc.65 A copy center operator (and 15-year employee) was seriously injured in a non-work related accident. She was placed on FMLA leave and subsequently received both short-term and long-term disability benefits. Even though she was given a “return to work” date with certain lifting limitations, she was terminated because (1) she could not perform the tasks of her position, (2) the company needed to fill the position and (3) “due to [her] long term disability.” The court held that the plaintiff had sufficiently pleaded a physical impairment that substantially limited the major life activity of working and the defendant had terminated her employment as a result of her impairment.

● Rico v. Xcel Energy, Inc.66 Plaintiff suffered a work-related back injury as an apprentice lineman and after surgery, he returned to work with “modest lifting restrictions” and “no utility pole climbing.” He subsequently requested a transfer, which was denied, where he would not lift or climb poles. Instead, he was recommended for long-term disability benefits and terminated, and he applied for an open position in competition with other job applicants. He was offered a lower-paying job with a loss of seniority. Plaintiff’s allegations of a violation of the ADA, as amended by the ADAAAA, withstood a motion to dismiss because plaintiff sufficiently pleaded he was disabled.

● Harty v. City of Sanford.67 After having received knee injuries and a 40% disability rating from the VA while in the Navy, plaintiff accepted a job with the city as an equipment operator. After a pre-employment physical, it was determined that he could perform all essential job functions. After 2 weeks on the job, he applied for and was offered a foreman’s job, with no additional fit-for-duty examination being conducted. He injured his knee while assisting a bricklayer and was placed on light duty. After returning to work full-time with restrictions on squatting, kneeling, running and jumping, among others, a fit-for-duty evaluation was performed, and it was determined that he could not perform all of the essential functions of a foreman and he was terminated. The employer’s motion for summary judgment was denied because there was evidence the plaintiff was disabled and a qualified individual who could perform essential job functions.

64 2011 U.S. Dist. LEXIS 57303 (S.D. Tex. 2011) (denying summary judgment where plaintiff had an operable brain tumor).

65 2011 WL 2174465 (M.D. Tenn. 2011).

66 893 F.Supp.2d 1165 (D.N.M. 2012). 67 2012 WL 3243282 (M.D. Fla. 2012).

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● Johnson v. Farmers Ins. Exchange.68 Under the broad definition of disability in the ADAAA, the plaintiff’s allegations that she suffered from sleep apnea were sufficient to state a claim that she had a disability that substantially limited a major life activity. As a consequence, the defendant’s motion to dismiss was denied.

● Farina v. Branford Bd. of Educ.69 Since the ADAAA lowered the threshold requirement to establish a disability, and specifically included lifting as a major life activity, “it is possible that even a relatively minor lifting restriction could qualify as a disability within the statute.” In this case, the lawsuit of a tenured elementary school teacher who had substantial performance issues and was often tardy to work did not survive a motion for summary judgment because of factual insufficiencies in her pleadings.

● Phelps v. Balfour Commemorative Brands, Inc.70 Although the plaintiff alleged she suffered from arthritis, bursitis, obesity, tendonitis, diabetes and anemia and was often sick and hospitalized, she made no factual statements as to the nature of her disability and did not show that her impairment substantially limited one or more major life activities. Consequently, she failed to establish a prima facie case for discrimination and also could not show a failure to accommodate a disability.

● Fierro v. Knight Transportation.71 Terminated truck driver requested that he not be sent over-the-road because of important medical appointments and that he be granted leave from work to seek medical attention. The plaintiff alleged that he had adenoid cystic carcinoma, a form of cancer, but failed to plead any facts giving rise to an inference that his cancer substantially limited one or more major life activities. He also failed to plead sufficient facts regarding the timing of his termination relative to his alleged cancer as well as facts that his employer had notice of the disability and failed to accommodate; however, the plaintiff did plead sufficient facts that he was perceived by his employer to have cancer, thus stating a cause of action for discriminatory discharge.

● Nayak v. St. Vincent Hospital and Health Care Center, Inc.72 Hospital OB/GYN resident delivered one of two twins (one passed away during pregnancy) and experienced serious post-partum difficulties. Her contract was not renewed and she alleged it was a result of her pregnancy complications. The court determined the resident had sufficiently pleaded a plausible claim for disability discrimination but had not adequately pleaded a “regarded as” disabled claim of discrimination.

68 2012 WL 95387 (W.D. Okla. 2012).

69 2010 WL 3829160 (D. Conn. 2010).

70 2013 WL 653542 (W.D. Ky. 2013).

71 2012 WL 4321304 (W.D. Tex. 2012).

72 2013 WL 121838 (S.D. Ind. 2013).

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