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30 No. 10 Disability Law Compliance Report NL 1

Disability Law Compliance Report

October 2022

Volume 30, Issue 10

Disability Law Compliance Report

FOURTH CIRCUIT PANEL HOLDS GENDER DYSPHORIA MAY BE DISABILITY UNDER ADA

In one of the most discussed ADA opinions in recent years, a majority panel of the United States Court of Appeals for the Fourth Circuit held, in Williams v. Kincaid, 45 F.4th 759 (4th Cir. 2022), that gender dysphoria may be disability within meaning of the ADA. The Fourth Circuit panel majority reasoned that while the ADA excludes “gender identity disorders not resulting from physical impairments,” “gender dysphoria” is a distinct condition not necessarily included with the literal words of the ADA’s exclusion. And, therefore, given the ambiguity of the statute as to whether “gender dysphoria” is encompassed within the meaning of the term “gender identity disorder,” the majority concluded that it was required to follow Congress’ mandate that the ADA be construed broadly to provide coverage.

Key Facts

• Kesha Williams, a transgender woman with gender dysphoria, spent six months incarcerated in the Fairfax County Adult Detention Center.
• Though prison deputies initially assigned Williams to women’s housing, they quickly moved her to men’s housing when they learned that she was transgender. There, she experienced delays in medical treatment for her gender dysphoria, harassment by other inmates, and persistent and intentional misgendering and harassment by prison deputies.
• Following her release, Williams filed an action alleging, in part, that Stacey Kincaid, the sheriff of Fairfax County, violated the ADA.
• Kincaid contended that the ADA afforded Williams no basis for relief because the statute excludes “gender dysphoria” from the definition of the term “disability.”
• The district court adopted this argument and dismissed the ADA claim.

Williams appealed to the Fourth Circuit.

Fourth Circuit’s Analysis

The Fourth Circuit first noted the following:

• The ADA defines the term “disability” broadly to include a physical or mental impairment that substantially limits one or more major life activities of such individual.
• Kincaid argued that the ADA excludes from the broad definition of “disability”—and thus from the statute’s protections—“gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders,” 42 U.S.C.A. § 12211(b)(1), and that “gender dysphoria” is such a condition.

After recognizing that the issue before it was one of first impression, the court emphasized that, in amending the ADA in 2008, Congress expressly stated that the statute was to be construed broadly

As stated by the majority:

After a series of Supreme Court decisions narrowing the ADA, Congress responded in 2008 by instructing courts in an amendment to the ADA that the definition of “disability” “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the [ADA’s] terms.” Id. § 12102(4)(A). In doing so, “Congress expressly directed courts to construe the amended [ADA] as broadly as possible.” Summers v. Altarum Inst., Corp., 740 F.3d 325, 332 (4th Cir. 2014). Moreover, because the 2008 amendments to the ADA were “intended to make it ‘easier for people with disabilities to obtain protection under the ADA,’” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572 (4th Cir. 2015) (quoting 29 C.F.R. § 1630.1(c)(4)), courts must construe the ADA’s exclusions narrowly. See Alexander v. Carrington Mortgage Servs., LLC, 23 F.4th 370, 374 (4th Cir. 2022).

Is Gender Dysphoria Categorically a “Gender Identity Disorder”?

Williams’ first argument on appeal was that her condition is not a “gender identity disorder” and so the exclusion from ADA protection of such a diagnosis does not affect ADA coverage as to her disability (gender dysphoria).

In addressing this contention, the Fourth Circuit expressed the following points:

• The text of the ADA does not define the term “gender identity disorders” and does not mention “gender dysphoria” at all. Thus, although the ADA specifically lists a number of exclusions from the definition of “disability,” that list does not include “gender dysphoria.”
• To determine whether “gender identity disorders” includes gender dysphoria, courts must look to the meaning of the ADA’s terms at the time of its enactment. Bostock v. Clayton County, Georgia, 140 S. Ct. 1731, 207 L. Ed. 2d 218, 2020 Fair Empl. Prac. Cas. (BNA) 220638, 104 Empl. Prac. Dec. (CCH) P 46540 (2020).
• That examination reveals that in 1990—the time of the ADA’s adoption—“gender identity disorders” did not include “gender dysphoria.”
• In fact, in 1990, the medical community did not acknowledge gender dysphoria either as an independent diagnosis or as a subset of any other condition.
• It did recognize, however, a class of other conditions that it characterized as “gender identity disorders” (the terminology used in the ADA).
- ◦ According to the then-current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), “[t]he essential feature” of a “gender identity disorder” was “an incongruence between assigned sex (i.e., the sex that is recorded on the birth certificate) and gender identity.”
- ◦ In 1990, the “gender identity disorder” diagnosis marked being transgender as a mental illness.
• In contrast, advances in medical understanding led the American Psychiatric Association (APA) in 2013 to remove “gender identity disorders” from the most recent DSM (5th ed. 2013) and added the diagnosis of “gender dysphoria” (a condition that did not exist as a diagnosis at the time of the passage of the ADA).

From this premise the Fourth Circuit panel majority concluded that “gender identity disorder” and “gender dysphoria” are two different terms with different meanings and while the former was excluded by the ADA, the latter was not.

As stated by the Fourth Circuit panel majority:

The very fact of revision suggests a meaningful difference, and the contrast between the definitions of the two terms—gender identity disorder and gender dysphoria—confirms that these revisions are not just semantic. Indeed, the definition of gender dysphoria differs dramatically from that of the now-rejected diagnosis of “gender identity disorder.” Rather than focusing exclusively on a person’s gender identity, the DSM-5 defines “gender dysphoria” as the “clinically significant distress” felt by some of those who experience “an incongruence between their gender identity and their assigned sex.”

NOTE:

The majority supported its conclusion by citing Grimm v. Gloucester County School Board, 972 F.3d 586, 381 Ed. Law Rep. 84 (4th Cir. 2020), as amended, (Aug. 28, 2020) and cert. denied, 141 S. Ct. 2878, 210 L. Ed. 2d 977 (2021) (recognizing that a diagnosis of gender dysphoria, unlike that of gender identity disorder, concerns itself primarily with distress and other disabling symptoms, rather than simply being transgender), and Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019), cert. denied, 141 S. Ct. 610, 208 L. Ed. 2d 197 (2020) (failure to follow an appropriate treatment plan for gender dysphoria can expose transgender individuals to a serious risk of psychological and physical harm).

Accordingly, in the view of the majority of the Fourth Circuit panel, the critical factual distinction between “gender identity disorder” and “gender dysphoria” is characterized by different symptoms—with the latter being characterized by significant clinical distress (something not necessarily associated with what was previously called “a gender identity disorder”).

As stated by the Fourth Circuit panel:

In sum, the APA’s removal of the “gender identity disorder” diagnosis and the addition of the “gender dysphoria” diagnosis to the DSM-5 reflected a significant shift in medical understanding. The obsolete diagnosis focused solely on cross-gender identification; the modern one on clinically significant distress. … Thus, the ADA excludes from its protection anything falling within the plain meaning of “gender identity disorders,” as that term was understood “at the time of its enactment.” Bostock, 140 S. Ct. at 1738. But nothing in the ADA, then or now, compels the conclusion that gender dysphoria constitutes a “gender identity disorder” excluded from ADA protection. For these reasons, we agree with Williams that, as a matter of statutory construction, gender dysphoria is not a gender identity disorder.

Given at least the reasonableness of its position that gender dysphoria is distinct from the gender identity disorders not covered by the ADA, the majority relied heavily on Congress’ directive that the ADA be construed broadly:

[G]iven Congress’ express instruction that courts construe the ADA in favor of maximum protection for those with disabilities, we could not adopt an unnecessarily restrictive reading of the ADA. To so hold would be for a court to take it upon itself to rewrite the statute in two impermissible ways: by penciling a new condition into the list of exclusions, and by erasing Congress’ command to construe the ADA as broadly as the text permits. We cannot add to the ADA’s list of exclusions when Congress has not chosen to do so itself.

Is Gender Dysphoria a Gender Identity Disorder Resulting from Physical Impairments?

Williams’ second argument on appeal was that her gender dysphoria has a known physical basis and therefore is not covered by the ADA’s exclusion even if gender dysphoria is assumed to be a subset of the term “gender identity disorder.” In response, Kincaid did not argue that gender dysphoria never results from a physical impairment but contended that Williams failed to explicitly plead that her gender dysphoria was the result of a physical impairment.

In addressing this issue, the Fourth Circuit panel majority first set forth the following principles:

• Though the statute itself does not define the phrase “physical impairments,” the Equal Employment Opportunity Commission (EEOC) has promulgated regulations defining the term expansively as “[a]ny physiological disorder or condition … affecting one or more body systems, such as neurological … and endocrine.”
• Courts must defer to the EEOC’s reasonable interpretations of ambiguous terms in the ADA.

Based on the foregoing, the majority then reasoned that:

In light of the broad scope of the ADA and the implementing regulations, we conclude that Williams has alleged sufficient facts to render plausible the inference that her gender dysphoria “result[s] from physical impairments.” 42 U.S.C. § 12211(b)(1). Williams alleges that the medical treatment for her gender dysphoria “consisted primarily of a hormone therapy, which she used to effectively manage and alleviate the gender dysphoria she experienced,” and that she had received this medical treatment for fifteen years. … And she alleges that without it, when the prison failed to provide this treatment, she experienced, inter alia, “emotional, psychological, and physical distress.” … These allegations suffice to raise “the reasonable inference” that Williams’ gender dysphoria results from a physical impairment. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In particular, the need for hormone therapy may well indicate that her gender dysphoria has some physical basis.

NOTE:

The majority noted that Williams had presented medical and scientific research identifying possible physical bases of gender dysphoria and that the Department of Justice (DOJ) has agreed that this emerging research renders the inference that gender dysphoria has a physical basis sufficiently plausible to survive a motion to dismiss. See, for example, Second Statement of Interest of the United States of America at 1-2, Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-4822 (E.D. Pa. Nov. 16, 2015), available at 2015 WL 9872493 (“In light of the evolving scientific evidence suggesting that gender dysphoria may have a physical basis, along with the remedial nature of the ADA and the relevant statutory and regulatory provisions directing that the term ‘disability’ and ‘physical impairment’ be read broadly, the [Gender Identity Disorder] Exclusion should be construed narrowly such that gender dysphoria falls outside its scope.”).

Accordingly, the Fourth Circuit panel majority determined that Williams had sufficiently alleged a physical impairment precluding the dismissal of her complaint.

NOTE:

The Fourth Circuit majority supported its conclusion by reasoning that if there were any doubt that the ADA’s exclusion provision does not foreclose Williams’ ADA claim on a motion to dismiss, the court was required to interpret that statute to permit that claim to proceed to avoid a serious constitutional question. As stated in the majority opinion:

When a statute “raises ‘a serious doubt’ as to its constitutionality,” we must “first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Zadvydas v. Davis, 533 U.S. 678, 689, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932)). … we have little trouble concluding that a law excluding from ADA protection both “gender identity disorders” and gender dysphoria would discriminate against transgender people as a class, implicating the Equal Protection Clause of the Fourteenth Amendment.

Dissenting Opinion

Judge Quattlebaum, who is a Trump appointee, filed a concurring and dissenting opinion. According to Judge Quattlebaum, the condition now called “gender dysphoria” was covered by the term “gender identity order” used by Congress in enacting the ADA:

[G]ender dysphoria is a “gender identity disorder” as that phrase was understood at the time Congress passed the ADA. And since “gender identity disorders not resulting from physical impairments” are excluded from the ADA, the district court appropriately dismissed Williams’ ADA claim. … [A]ccording to Williams, gender dysphoria refers more narrowly only to those who experience discomfort and distress from such incongruence. … But even if Williams is correct about such changes in understanding, linguistic drift cannot alter the meaning of words in the ADA when it was enacted. And at that time, the meaning of gender identity disorders included gender dysphoria as alleged by Williams.

In reaching his conclusion, Judge Quattlebaum reasoned as follows:

The ADA does not define “gender identity disorders.” Nor has that phrase been interpreted by the Supreme Court, our court or any of our sister circuits. Thus, in deciding the question we face today, we must look to the meaning of gender identity disorders at the time the statute was written. … What Williams alleges she experiences as a person with gender dysphoria—“discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics)”—falls precisely under the DSM-III-R’s description of, and diagnostic criteria for, gender identity disorders. In other words, when the ADA was signed into law, gender identity disorder was understood to include what Williams alleges to be gender dysphoria. Thus, Williams’ ADA claim must fail.

Thus, according to Judge Quattlebaum, the majority was wrong in holding that gender dysphoria is a new, different diagnosis not encompassed by the phrase “gender identity disorders.” And he supported that conclusion by referencing the DSM-III-R:

But in attempting to distinguish between gender identity disorder and gender dysphoria, both Williams and the majority ignore the actual language of the DSM-III-R. That publication, which was in place in 1990, provides that, even in mild cases, gender identity disorders involve “discomfort and a sense of the inappropriateness about the assigned sex.” DSM-III-R at 71. It even lists such distress as the first diagnostic criteria for gender identity disorder. Id. At 73, 77. This language makes clear that Williams’ argument is incorrect. Gender identity disorders, as understood in 1990, included distress and discomfort from identifying as a gender different from the gender assigned at birth.

Judge Quattlebaum further reasoned that his conclusion was bolstered by the text of Section 12211(b)(1):

Significantly, Congress excluded gender identity disorders not resulting from a physical impairment. The plural use of the term should not be overlooked. This language indicates that Congress considered this class to include more than one diagnosis. Consistent with this, the DSM-III-R specified certain gender identity disorders. DSM-III-R at 71-78. But it also contains a category of “Gender Identity Disorder Not Otherwise Specified.” Id. At 77-78. Thus, whether gender dysphoria is new diagnosis or a replacement for gender identity disorder is not the point. Section 12211(b)(1)’s exclusion of gender identity disorders, as that phrase was understood at the time, included an alleged disability involving discomfort or distress caused by a discrepancy between one’s gender identity and the sex assigned at birth.

Judge Quattlebaum concluded:

In sum, the foundation of Williams’ position—that in 1990, gender identity disorder referred to individuals with cross-gender identification generally and not those that experience distress and discomfort from that identification—is belied by the actual language of the DSM-III-R. And it is further undermined by consistent references to gender identity disorder and gender dysphoria in dictionaries and medical publications from 1990 to present. Finally, it is inconsistent with the text of § 12211(b)(1).

Who Does A Tie Go To?

A fair reading of both opinions in this case requires the conclusion that both the majority and the dissent put forth reasonable arguments for their respective positions, and therefore the logical conclusion would have to be that the ADA’s exclusion of gender identity disorder is, at least, ambiguous as to whether it covers gender dysphoria.

Unlike the majority, Judge Quattlebaum chose to give no weight to Congress’ addition to the ADA in 2008 where it expressly stated that the term “disability” “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the [ADA’s] terms.” 42 U.S.C.A. § 12102(4)(A). Judge Quattlebaum simply stated that “those amendments do not persuade me.”

However, given two plausible constructions of the statute—one concluding that gender dysphoria is covered and one that it is not—the courts should follow Congress’ direction that the statute be liberally construed in favor of coverage. Therefore, while Judge Quattlebaum states that all he is doing is adhering to Congressional intent (under circumstances where that intent is unclear), he seems to be doing just the opposite—ignoring an express Congressional directive that coverage should be the default in the case of uncertainty. See Cannon v. Jacobs Field Services North America, Inc., 813 F.3d 586, 590, 32 A.D. Cas. (BNA) 793 (5th Cir. 2016) (recognizing that the 2008 amendments to the ADA “make it easier for people with disabilities to obtain protection under the ADA,” and that “[a] principal way in which Congress accomplished that goal was to broaden the definition of ‘disability’ ” (citing 29 C.F.R. § 1630.1(c)(4))).

30 No. 10 Disability Law Compliance Report NL 1

28 No. 10 Disability Law Compliance Report NL 2

Disability Law Compliance Report

October 2020

Volume 28, Issue 10

Disability Law Compliance Report

EMPLOYEE WHO WENT ON HUNTING TRIP DURING PERIOD OF REQUESTED LEAVE MAY STILL MAKE OUT FMLA CLAIM

In Pohutski v. Devon Facility Management, LLC, 2020 WL 4934331 (E.D. Mich. 2020), the United States District Court for the Eastern District of Michigan held that an employee who requested FMLA leave to go on a hunting trip could nevertheless make out a FMLA claim.

Key Facts

• Allen Pohutski worked for Devon Facility Management, LLC (Devon).
• In September of 2015, Pohutski injured his knee and over the next couple of months he suffered from disabling pain.
• He attended physical therapy approximately three times a week in September and October to treat his knee, and also required needle aspirations and cortisone injections.
• By November 12, 2015, Pohutski’s orthopedic surgeon, Dr. Kohen, had concluded that Pohutski was disabled by his knee injury and required surgery.
• About the same time, Pohutski asked Devon for time off to go on a hunting trip and he told his supervisor that if his request were denied, he would seek FMLA leave to cover the period of the trip.
• The leave was, in fact denied (on the grounds that Devon knew that the purpose of the leave was the hunting trip) and, as threatened, Pohutski then requested FMLA-protected leave from November 13, 2015, through November 24, 2015.
• Pohutski took the hunting trip (although he testified that he ultimately did not hunt) and upon his return, he was fired.

Pohutski sued claiming that his termination was in violation of his rights under the FMLA. Devon moved summary judgment, arguing that: (1) Pohutski could not establish a prima facie case, and (2) even if he could establish a prima facie case, he could not show that the reason for his termination was a pretext for unlawful discrimination in violation of the FMLA.

FMLA Claim—Entitlement to Leave

The court began by setting forth the general rule that, to establish a prima facie case of FMLA interference, a plaintiff must show that: (1) he or she was an eligible employee; (2) the defendant was an employer as defined under the FMLA; (3) the employee was entitled to leave under the FMLA; (4) the employee gave the employer notice of his or her intention to take leave; and (5) the employer denied the employee FMLA benefits to which he was entitled. Donald v. Sybra, Inc., 667 F.3d 757, 25 A.D. Cas. (BNA) 1444, 18 Wage & Hour Cas. 2d (BNA) 993, 161 Lab. Cas. (CCH) P 35984 (6th Cir. 2012); Killian v. Yorozu Automotive Tennessee, Inc., 454 F.3d 549, 11 Wage & Hour Cas. 2d (BNA) 1089, 153 Lab. Cas. (CCH) P 35164, 2006 FED App. 0255P (6th Cir. 2006). At issue in this case were elements 3, 4 and 5.

Devon’s first argument was that Pohutski had not presented sufficient evidence that he was entitled to leave under the FMLA in November 2015 (prima facie element 3). Devon contended that Pohutski’s “purported need for ‘rest and relaxation’ and ‘upcoming surgery’ (the bases for his FMLA request) were a ruse to take time off for his long pre-planned deer hunting vacation with his buddies.” According to Devon, the FMLA is available for medical necessity, not recreational outings (that is, the hunting trip).

The district court rejected Devon’s arguments reasoning as follows:

• Pohutski testified to his disabling pain and medical records supported that testimony.
• Pohutski testified that he mostly “stayed in the car” during the hunting trip because he “couldn’t walk.”

According to the district court, if a jury credited this evidence from Pohutski, it could reasonably conclude that his trip was not inconsistent with his claimed serious knee injury.

FMLA Claim—Notice

Next, Devon argued that Pohutski never gave notice of his intent to take leave for an FMLA-qualifying reason (prima facie element 4). According to Devon, Pohutski at first only asked for leave to go on the hunting trip and only requested medical leave after his initial request was denied.

In rejecting Devon’s argument, the district court reasoned as follows:

• Even if Pohutski first requested time off for non-medical leave, he presented sufficient evidence that he later asked for medical leave and that he made the extent of his knee injury known to Devon.
• In particular, Pohutski testified that he informed his supervisors, Jon Starkweather and Jamie Bostater, that he was incapacitated by his knee injury.
• Pohutski said that he specifically asked Starkweather for medical leave to care for his knee injury.
• Pohutski also submitted an email to Devon—dated November 13, 2015, the same day Pohutski took off work—informing Devon that he needed to take medical leave until November 24, 2015, to recover from his knee injury.

According to the district court, viewing the evidence in the light most favorable to Pohutski, a reasonable jury could find that Pohutski had established the fourth element of his prima facie case of FMLA interference—that he gave Devon notice of his intent to take leave for an FMLA-qualifying reason.

FMLA Claim—Denial of Leave

Finally, Devon argued that Pohutski had not presented sufficient evidence that Devon denied him an FMLA benefit—medical leave—to which he was entitled (prima facie element 5). See Tennial v. United Parcel Service, Inc., 840 F.3d 292, 33 A.D. Cas. (BNA) 62, 129 Fair Empl. Prac. Cas. (BNA) 1145, 26 Wage & Hour Cas. 2d (BNA) 1808, 100 Empl. Prac. Dec. (CCH) P 45664 (6th Cir. 2016) (a benefit is denied if an employer interferes with the FMLA-created right to medical leave or to reinstatement following the leave); Arban v. West Pub. Corp., 345 F.3d 390, 8 Wage & Hour Cas. 2d (BNA) 1793, 84 Empl. Prac. Dec. (CCH) P 41485, 148 Lab. Cas. (CCH) P 34752, 2003 FED App. 0341P (6th Cir. 2003).

Devon contended that it “did not interfere with” Pohutski’s right to medical leave or reinstatement following the leave because Pohutski “was not entitled to leave for an FMLA-qualifying reason.”

The district court rejected this argument on the ground that a reasonable jury could find that Pohutski had a serious health condition that entitled him to medical leave and that a jury could find that he was denied that FMLA-protected benefit when he was terminated.

Accordingly, the district court determined that Pohutski had established the fifth element of his prima facie case of FMLA interference—that Devon denied Pohutski FMLA benefits to which he was entitled.

Retaliation—Prima Facie Case

The district court next addressed whether Pohutski had established a prima facie case of FMLA retaliation.

NOTE:

To establish a prima facie case of FMLA retaliation, an employee must show that: (1) the employee was engaged in an activity protected by the FMLA; (2) the employer knew that the employee was exercising rights under the FMLA; (3) after learning of the employee’s exercise of FMLA rights, the employer took an employment action adverse to the employee; and (4) there was a causal connection between the protected FMLA activity and the adverse employment action. Donald v. Sybra, Inc., 667 F.3d 757, 25 A.D. Cas. (BNA) 1444, 18 Wage & Hour Cas. 2d (BNA) 993, 161 Lab. Cas. (CCH) P 35984 (6th Cir. 2012).

In concluding that Pohutski had presented sufficient evidence on each element of a prima facie case of retaliation, the court reasoned as follows:

• Pohutski had presented evidence that he needed medical leave for his knee injury and that he requested FMLA-protected leave.
• Pohutski had presented sufficient evidence for a reasonable jury to find that Devon knew that Pohutski was exercising his right to medical leave under the FMLA, based on his testimony that he told his supervisors about his injury and he presented an email to Devon informing the company that he was taking time off work due to his knee injury.
• Devon took an adverse employment action against him—firing him the day after he returned from leave—after Devon learned that Pohutski exercised his FMLA rights (that is, he went on the hunting trip).
• The temporal proximity between Pohutski’s leave and his termination supports an inference of causation at the prima facie stage. See Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d 274, 284, 18 Wage & Hour Cas. 2d (BNA) 1831 (6th Cir. 2012) (“Seeger has shown causality by a preponderance of the evidence through close temporal proximity that is suggestive of retaliation.”); Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 525, 102 Fair Empl. Prac. Cas. (BNA) 889, 90 Empl. Prac. Dec. (CCH) P 43093 (6th Cir. 2008) (“Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation.”).

Retaliation—Devon’s Articulated Nondiscriminatory Reason

Applying McDonnell Douglas, the court next turned to the issue of whether Devon had articulated a legitimate, nondiscriminatory reason for its actions.

According to Devon, Pohutski was terminated because:

Plaintiff engaged in unacceptable and insubordinate conduct when he failed to abide by his supervisor’s (Bostater) instruction to be at work after his request for unpaid time off was denied. Rather than appear for work, Plaintiff brazen[ly] went deer hunting. It is undisputed that Plaintiff’s request for unpaid time off was denied, and that he was told he was needed at work …. It is also undisputed that Plaintiff did not appear for work because he opted to go on the deer hunting trip with his buddies.

Pohutski argued that this reason for his termination does not satisfy Devon’s burden under McDonnell Douglas because the reason is intertwined with, and not independent of, Pohutski’s exercise of his rights under the FMLA. See Wallace v. FedEx Corp., 764 F.3d 571, 590, 23 Wage & Hour Cas. 2d (BNA) 342, 98 Empl. Prac. Dec. (CCH) P 45136, 164 Lab. Cas. (CCH) P 36258, 89 Fed. R. Serv. 3d 914 (6th Cir. 2014) (“In this case, the purported legitimate reason is intimately intertwined with the FMLA leave, and therefore, we reject FedEx’s contention” that it had offered an independent and legitimate reason for terminating plaintiff); Archey v. AT&T Mobility Services LLC, 2019 WL 1434654, at *8 (E.D. Ky. 2019) (“[T]o the extent [AT&T] claims it terminated [Archey] based, in part, on [her March 26th] absence[ ], which may have been FMLA-qualifying, that reason is ‘intimately intertwined’ with [Archey’s] potentially FMLA-qualifying leave. As such, Defendants have not demonstrated the requisite ‘independent, legitimate’ reason for Archey’s termination.”); Wellman v. Sutphen Corp., 16 Wage & Hour Cas. 2d (BNA) 118, 159 Lab. Cas. (CCH) P 35743, 2010 WL 1644018, at *11 (S.D. Ohio 2010) (“[T]his court cannot say based on the record before it and as a matter of law that Wellman’s alleged insubordination was unrelated to his exercise of FMLA rights and/or that Wellman’s dismissal would have occurred even absent Wellman’s exercise of FMLA rights.”).

The court determined that it did not have to address Pohutski’s “intertwined” argument but instead turned to the issue of pretext.

Retaliation—Pretext

Pohutski argued that he had shown that Devon’s proffered reason for terminating him—his alleged insubordination by not to appearing at work or providing a valid excuse—had no basis in fact.

According to Pohutski, the following assumptions by Devon were inaccurate: (1) that he did not have a serious knee injury that made leave a medical necessity; (2) that he did not request FMLA leave; (3) that even if he did request medical leave, such a request was a “ruse” for a hunting trip; and (4) that he went on the trip to hunt rather than to allow his knee to recover.

NOTE:

An employee can show pretext by offering evidence that: (1) the employer’s stated reason had no basis in fact; (2) the stated reason did not actually motivate the employer; or (3) the stated reason was insufficient to warrant the adverse employment action. Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 124 Fair Empl. Prac. Cas. (BNA) 513 (6th Cir. 2014).

The district court agreed with Pohutski that his evidence, when viewed in his favor and if credited by a jury, could support a finding that Devon was mistaken in the ways identified by Pohutski, and that a reasonable jury could find that Devon was wrong when it concluded that Pohutski was not entitled to FMLA leave and therefore he was insubordinate when he did not appear at work.

Honest Belief Rule

Devon countered that, even if it was mistaken about whether Pohutski was entitled to leave and/or was insubordinate, it was still entitled to summary judgment because it “honestly believed” that Pohutski had been insubordinate and thus was subject to termination.

The district court set forth the following principles relating to the “honest belief” rule:

• When an employer reasonably and honestly relies on particularized facts in making an employment decision, it is entitled to summary judgment on pretext even if its conclusion is later shown to be mistaken, foolish, trivial, or baseless. Chen v. Dow Chemical Co., 580 F.3d 394, 107 Fair Empl. Prac. Cas. (BNA) 272 (6th Cir. 2009); Clay v. United Parcel Service, Inc., 501 F.3d 695, 101 Fair Empl. Prac. Cas. (BNA) 673, 90 Empl. Prac. Dec. (CCH) P 43029 (6th Cir. 2007).
• The employer’s claim of honest belief is necessarily tied to the nature of its investigation and disciplinary decision process.
• The key inquiry is whether the employer made a reasonably informed and considered decision before taking the complained-of action. Michael v. Caterpillar Financial Services Corp., 496 F.3d 584, 101 Fair Empl. Prac. Cas. (BNA) 220, 90 Empl. Prac. Dec. (CCH) P 42914 (6th Cir. 2007); Smith v. Chrysler Corp., 155 F.3d 799, 8 A.D. Cas. (BNA) 1084, 1998 FED App. 0288P (6th Cir. 1998).
• The employer must point to particularized facts upon which it reasonably relied.
• Courts do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Allen v. Highlands Hosp. Corp., 545 F.3d 387, 104 Fair Empl. Prac. Cas. (BNA) 934, 91 Empl. Prac. Dec. (CCH) P 43353 (6th Cir. 2008).
• To defeat a summary judgment motion in such circumstances, the plaintiff must produce sufficient evidence from which the jury could reasonably reject the defendants’ explanation and infer that the defendants did not honestly believe in the proffered nondiscriminatory reason for its adverse employment action. Braithwaite v. Timken Co., 258 F.3d 488, 86 Fair Empl. Prac. Cas. (BNA) 404, 83 Empl. Prac. Dec. (CCH) P 41142, 2001 FED App. 0227P (6th Cir. 2001). For example, the plaintiff may produce evidence that an error by the employer was too obvious to be unintentional.
• An employee’s bare assertion that the employer’s proffered reason has no basis in fact is insufficient to call an employer’s honest belief into question and fails to create a genuine issue of material fact. Seeger v. Cincinnati Bell Telephone Co., LLC, 681 F.3d 274, 18 Wage & Hour Cas. 2d (BNA) 1831 (6th Cir. 2012); Joostberns v. United Parcel Services, Inc., 166 Fed. Appx. 783, 2006 FED App. 0019N (6th Cir. 2006); Tingle v. Arbors at Hilliard, 692 F.3d 523, 115 Fair Empl. Prac. Cas. (BNA) 1680, 34 I.E.R. Cas. (BNA) 469 (6th Cir. 2012).

Applying the foregoing here, Devon argued that it made a reasonably informed and considered decision before taking the adverse action against Pohutski.

Pohutski countered that Devon may not invoke the honest-belief rule because it did not conduct a sufficient investigation before it terminated his employment.

In agreeing with Pohutski, the district court held:

The Court agrees that Devon is not entitled to summary judgment under the honest-belief rule. … A jury could fairly conclude that (1) Devon acted unreasonably in assuming that a note from a physician was fraudulent and (2) it was incumbent upon Devon to conduct at least some minimal inquiry into the validity of the note and the disability determination by Dr. Kohen that was reflected on the note. And if Devon had made that inquiry, it would have learned that Dr. Kohen had, in fact, declared Pohutski to be disabled before Pohutski took time off work.

Devon argued that it reasonably chose not to investigate Pohutski’s email further because Pohutski “made ‘brazen’ admissions to his supervisor that he would go on the hunting trip one way or another and get a note from his doctor.” But the district court concluded that a jury viewing the evidence in Pohutski’s favor could reasonably reject this explanation because it seems to assume—without sufficient factual support—that Pohutski could have obtained a disability certificate from Dr. Kohen even if he was not disabled.

Accordingly, the district court denied Devon’s motion for summary judgment.

28 No. 10 Disability Law Compliance Report NL 2

ELEVENTH CIRCUIT ADDRESSES EQUIVALENT POSITIONS FOR PURPOSES OF FMLA

In Simmons v. William B. Henghold, M.D., P.A., 2020 WL 949641 (11th Cir. 2020), the United States Court of Appeals for the Eleventh Circuit held that a factual dispute existed as to whether a nurse had been reinstated to an equivalent position after returning from FMLA leave.

Key Facts

• Amelie Simmons worked for William B. Henghold M.D., P.A. (Henghold P.A.) as its director of nursing.
• In addition to surgical duties, Simmons had administrative responsibilities such as: (1) hiring and managing Henghold P.A.’s nursing staff; (2) creating educational materials for Henghold P.A.’s physicians and staff; (3) managing inventory and supplies; and (4) ensuring that Henghold P.A. complied with certain federal regulations.
• According to Henghold P.A.’s Chief Executive Officer Cynthia Huss, Simmons performance “exceeded expectations.”
• In the fall of 2016, Dr. Henghold and Huss purportedly discussed bringing on a full-time administrator which may have resulted in a reallocation of some of Simmons’ job duties.
• At some point during her employment at Henghold P.A., Simmons and Dr. Henghold began an extramarital affair that lasted for about three years.
• Simmons learned in January 2017 that Dr. Henghold was simultaneously having an affair with another staff member. Simmons’ relationship with Dr. Henghold quickly fell apart after that revelation, though Dr. Henghold did assure Simmons that her job was “secure.”
• After the affair was revealed, Huss spoke with Simmons several times during the week of January 15, 2017, about Simmons’ future at the practice.
• As a result of these conversations, Simmons and Huss agreed that Simmons would take a leave of absence.
• On January 16, 2017, Henghold P.A. posted an opening for a new director of nursing and Simmons’ replacement, Tracey Soule, was hired on March 6, 2017.
• According to Huss, she hired Soule because she thought Simmons was not returning to the practice.
• At some point in mid-March 2017, Soule was promoted to Henghold P.A.’s chief nursing officer, a new position something along the lines of the job which Dr. Henghold and Huss had discussed creating in 2016.
- ◦ This new job was basically responsible for overseeing the practice’s clinics and their personnel and encompassing some of the job duties previously performed by Simmons.
• Meanwhile, Simmons was still employed by Henghold P.A.
• On February 7, 2017, amidst discussions about severance from the practice, counsel for Henghold P.A. informed Simmons’ counsel that the Henghold P.A. expected Simmons to return to work on February 20, 2017, or else it would assume that Simmons had resigned.
• A week later, on February 14, 2017, Simmons’ counsel replied that Simmons was not resigning and had no plans to do so. To the contrary, Simmons’ counsel stated that she was still on indefinite leave to address the mental anguish and anxiety resulting from the situation with Dr. Henghold, and that Henghold P.A.’s attempts to rush Simmons back were in violation of the FMLA.
• Henghold P.A.’s counsel replied later that day that Simmons’ counsel’s email was the first indication that the practice has received to suggest that Simmons is possibly suffering from a “serious health condition” that would implicate the FMLA.
• The parties spent the next month exchanging the requisite FMLA paperwork, and on March 10, 2017, Simmons’ counsel informed Henghold P.A.’s counsel that Simmons was ready to return to work.
• Simmons’ counsel requested information about Simmons’ duties and responsibilities when she returned and Simmons asked similar questions of Huss.
• Huss eventually texted Simmons that Henghold P.A. had “hired a Chief Nursing Officer” but that Simmons would have the “same schedule & duties” she had before her leave of absence.
- ◦ This text occurred around the same time that Soule was promoted to serve as the chief nursing officer.
• On March 27, 2017, Simmons met with Huss, Soule, and Dr. Elias Ayli to discuss Simmons’ return to the practice.
- ◦ According to Simmons, Huss said at that meeting that Soule was strictly in charge of all nursing responsibilities—which had been Simmons’ “number one job description.”
- ◦ Soule testified that she understood that Simmons would have reported to her and that Soule would have decided which responsibilities to keep and which ones to delegate to Simmons.
• A few hours after the meeting ended, Simmons resigned.

Simmons sued Henghold P.A. and various individuals alleging, in part, violations of the FMLA. The district court granted the defendants summary judgment and Simmons appealed to the Eleventh Circuit.

Eleventh Circuit’s Analysis

The Eleventh Circuit started its analysis by setting forth the following general principles under the FMLA:

• Following a period of FMLA leave, an employee has the right to return to her job and “be restored by the employer to the position of employment held by the employee when the leave commenced,” or to an equivalent position.
• To prove FMLA interference, an employee must demonstrate that she was denied a benefit to which she was entitled under the FMLA.
• An employee does not need to allege that the employer intended to deprive the employee of her FMLA rights; the employer’s motives are irrelevant. Strickland v. Water Works and Sewer Bd. of City of Birmingham, 239 F.3d 1199, 25 Employee Benefits Cas. (BNA) 2050, 6 Wage & Hour Cas. 2d (BNA) 1185, 79 Empl. Prac. Dec. (CCH) P 40375, 142 Lab. Cas. (CCH) P 34196, 190 A.L.R. Fed. 787 (11th Cir. 2001).
• Simmons’ interference claim therefore has two elements—she must establish by a preponderance of the evidence that: (1) she was entitled to a benefit under the FMLA; and (2) that her employer denied her that benefit. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 15 Wage & Hour Cas. 2d (BNA) 1879, 159 Lab. Cas. (CCH) P 35735 (11th Cir. 2010).

NOTE:

The test for equivalence is strict. Generally, an equivalent position will be one that is virtually identical to the employee’s former position in terms of pay, benefits and working conditions, including privileges, perquisites and status and that involves the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority. See Daugherty v. Wabash Center, Inc., 577 F.3d 747, 15 Wage & Hour Cas. 2d (BNA) 365, 92 Empl. Prac. Dec. (CCH) P 43648, 158 Lab. Cas. (CCH) P 35622 (7th Cir. 2009); Breneisen v. Motorola, Inc., 512 F.3d 972, 13 Wage & Hour Cas. 2d (BNA) 257, 155 Lab. Cas. (CCH) P 35383 (7th Cir. 2008); Xula v. Chase Bank, J.P. Morgan Chase, 2019 Wage & Hour Cas. 2d (BNA) 426926, 2019 WL 5788074 (N.D. Ill. 2019).

NOTE:

Equivalency generally presents a fact question for the jury. See, for example, Haskell v. CentraCare Health System—Long Prairie, 952 F. Supp. 2d 838, 20 Wage & Hour Cas. 2d (BNA) 1701 (D. Minn. 2013); Reid-Falcone v. Luzerne County Community College, 10 Wage & Hour Cas. 2d (BNA) 1221, 151 Lab. Cas. (CCH) P 35010, 2005 WL 1527792 (M.D. Pa. 2005); Parker v. Hanhemann University Hosp., 234 F. Supp. 2d 478, 8 Wage & Hour Cas. 2d (BNA) 706, 84 Empl. Prac. Dec. (CCH) P 41401, 147 Lab. Cas. (CCH) P 34677 (D.N.J. 2002).

Simmons argued on appeal that she was not returned to an equivalent position at Henghold P.A. following her FMLA leave. She focused on the fact that Soule, as the practice’s chief nursing officer, took over some of Simmons’ prior director of nursing responsibilities.

For example, Simmons testified that: (1) she had been responsible for managing Henghold P.A.’s nurses, yet when Simmons was to return, Soule had been placed in charge of that duty; (2) Simmons had created education materials for physicians and staff, but Soule was charged with that responsibility; (3) Simmons previously oversaw management of the practice’s inventory but Soule was assigned that task; and (4) Simmons had been responsible for ensuring that Henghold P.A. was compliant with federal regulations, but that became Soule’s job.

The defendants countered that Simmons’ arguments were rooted in speculation because she abruptly quit the practice and that Simmons would have retained most of her former duties if she had stayed.

In rejecting the defendants’ argument, the Eleventh Circuit held:

While Simmons’s abrupt resignation from Henghold P.A. leaves some uncertainty as to her role at the practice, the record reveals that her claims are based on more than speculation and guesswork. Soule testified that she thought that she and Simmons would have done similar work if Simmons had come back, but Soule would have done the work “at a different level” than Simmons and “would have been doing higher level responsibilities.” … And even though Soule testified that she and Huss never discussed how Soule and Simmons would have split up various responsibilities—such as managing Henghold P.A.’s nurses, creating education materials, overseeing inventory, and ensuring adherence to regulatory requirements—Soule testified that she understood that she would have picked the tasks she wanted to do and “would have delegated [other responsibilities] to [Simmons].” … On its face, the described position is different from Simmons’s position before she took FMLA leave, where, according to Simmons’s testimony, she was responsible for all of those duties.

…

Because Simmons raises evidence from which a reasonable jury could conclude that she returned to a position after her FMLA leave that was not equivalent to her former job, this claim cannot be resolved at the summary-judgment stage.

NOTE:

Henghold P.A. had relied on cases holding that de minimis changes do not render positions different for FMLA purposes. See, for example, Hillstrom v. Best Western TLC Hotel, 265 F. Supp. 2d 117, 8 Wage & Hour Cas. 2d (BNA) 1379 (D. Mass. 2003), aff’d, 354 F.3d 27, 9 Wage & Hour Cas. 2d (BNA) 331, 84 Empl. Prac. Dec. (CCH) P 41564, 149 Lab. Cas. (CCH) P 34793 (1st Cir. 2003) (finding that change in chain-of-command and adjustment of employee’s title were de minimis changes that did not violate the FMLA); Corbett v. Richmond Metropolitan Transportation Authority, 203 F. Supp. 3d 699, 2016 A.D. Cas. (BNA) 277502 (E.D. Va. 2016) (change in reporting structure and loss of two minor duties were de minimis changes that did not violate the FMLA).

NOTE:

The defendants also argued that the change in the reporting structure and the alleged “discretion” of Soule to direct Simmons’ work did not mean that Simmons’ new position was not equivalent to her prior job. See, for example, Csicsmann v. Sallada, 211 Fed. Appx. 163, 12 Wage & Hour Cas. 2d (BNA) 113 (4th Cir. 2006) (finding that new, “less prestigious” and “less visible” position with varying duties was the same or equivalent for FMLA purposes where the employee received the same salary, title, bonus eligibility, health care and retirement benefits).

NOTE:

Simmons had argued that one of the facts that showed that she had not been reinstated to an equivalent position was that she would have had a different physical location within the office. The defendants contended that such a fact was not relevant to the equivalence determination. See, for example, Fannin v. United Space Alliance, L.L.C., 185 L.R.R.M. (BNA) 3239, 2009 WL 139878, at *15 (M.D. Fla. 2009), aff’d in part, 392 Fed. Appx. 788, 189 L.R.R.M. (BNA) 2672 (11th Cir. 2010) (finding that “reassignment to a different office or sharing office space has been held to be de minimis or intangible aspect of a job …”) (citing Wooten v. St. Francis Medical Center, 108 Fed. Appx. 888, 891 (5th Cir. 2004), that assignment to a “less desirable office” does not constitute an adverse employment action); Montgomery v. Maryland, 266 F.3d 334, 7 Wage & Hour Cas. 2d (BNA) 513, 81 Empl. Prac. Dec. (CCH) P 40841, 144 Lab. Cas. (CCH) P 34372 (4th Cir. 2001), cert. granted, judgment vacated on other grounds, 535 U.S. 1075, 122 S. Ct. 1958, 152 L. Ed. 2d 1019, 7 Wage & Hour Cas. 2d (BNA) 1888 (2002) (employer had not violated the FMLA when upon return from leave the employee no longer had her own office and had to share space); Hillstrom v. Best Western TLC Hotel, 265 F. Supp. 2d 117, 127, 8 Wage & Hour Cas. 2d (BNA) 1379 (D. Mass. 2003), aff’d, 354 F.3d 27, 9 Wage & Hour Cas. 2d (BNA) 331, 84 Empl. Prac. Dec. (CCH) P 41564, 149 Lab. Cas. (CCH) P 34793 (1st Cir. 2003) (court “cannot believe Congress, in enacting the FMLA, intended to make a federal case out of office space”).

Henghold P.A.’s Affirmative Defense

The Eleventh Circuit next turned to the second basis on which the district court granted summary judgment to Henghold P.A.—that the practice could prove it would have made the same decision had Simmons not exercised her FMLA rights. According to Henghold P.A., it hired Soule because of an extraordinary growth in its practice and that the change in Simmons’ duties would have occurred whether or not she had taken FMLA leave.

NOTE:

See, for example, Strickland v. Water Works and Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1208, 25 Employee Benefits Cas. (BNA) 2050, 6 Wage & Hour Cas. 2d (BNA) 1185, 79 Empl. Prac. Dec. (CCH) P 40375, 142 Lab. Cas. (CCH) P 34196, 190 A.L.R. Fed. 787 (11th Cir. 2001) (“[I]f an employer can show that it refused to reinstate the employee for a reason wholly unrelated to the FMLA leave, the employer is not liable.”); Parris v. Miami Herald Pub. Co., 216 F.3d 1298, 1301 n.1, 6 Wage & Hour Cas. 2d (BNA) 303, 78 Empl. Prac. Dec. (CCH) P 40132, 141 Lab. Cas. (CCH) P 34125 (11th Cir. 2000) (“[I]f an employer interferes with an employee’s right to reinstatement under the FMLA, the employer bears the burden of proving that the employee would have been laid off during the FMLA period for reasons unrelated to the employee’s condition, and therefore is not entitled to restoration.”).

In reversing the district court on this conclusion, the Eleventh Circuit reasoned as follows:

• The record does not establish beyond dispute that Henghold P.A. would have made this decision had Simmons not taken FMLA leave. Martin v. Brevard County Public Schools, 543 F.3d 1261, 237 Ed. Law Rep. 598, 14 Wage & Hour Cas. 2d (BNA) 1, 156 Lab. Cas. (CCH) P 35487 (11th Cir. 2008).
• Much of Henghold P.A.’s growth took place in 2015 and 2016. By the practice’s own measure, Simmons seems to have handled those changes well: the practice rewarded her with a raise, and three months later, she received an overwhelmingly favorable review, which noted that she had “exceeded all expectations.”
• While the defendants’ predictions about Henghold P.A.’s growth ultimately turned out to be accurate, much of that growth came several months (if not more) after Soule became the chief nursing officer.
• If Soule was hired to fill a long-needed administrative role, as Dr. Henghold testified, that would support the defendants’ argument. But if she was hired to replace Simmons as Henghold P.A.’s director of nursing because Huss did not think Simmons was coming back to work, that may suggest that Henghold P.A. had not intended to hire another employee at the time.

For the foregoing reasons, the Eleventh Circuit vacated the district court’s grant of summary judgment and remanded the case for further proceedings.

NOTE:

An often cited case in this area is Donahoo v. Master Data Center, 282 F. Supp. 2d 540, 8 Wage & Hour Cas. 2d (BNA) 1631 (E.D. Mich. 2003). The plaintiff in Donahoo worked as a computer analyst prior to taking leave under the FMLA. Upon returning to work, the plaintiff was assigned a data-entry position. The district court held that the positions were not equivalent:

Defendant argues that Plaintiff’s new position carried equal pay and benefits to her former position and therefore the two are equivalent. While that may be true, the regulation also requires equivalent status, and the two positions were not equivalent in terms of status: a data-entry job is not as sophisticated, nor does it require a similar level of training and education, as a computer analyst.

NOTE:

Compare the results in Simmons with other decisions holding that the plaintiffs were offered equivalent positions because any differences were de minimis. See, for example, Smith v. East Baton Rouge Parish School Bd., 453 F.3d 650, 210 Ed. Law Rep. 913, 11 Wage & Hour Cas. 2d (BNA) 994, 152 Lab. Cas. (CCH) P 35154 (5th Cir. 2006) (reduction in travel a de minimis difference); Oby v. Baton Rouge Marriott, 329 F. Supp. 2d 772, 9 Wage & Hour Cas. 2d (BNA) 1519 (M.D. La. 2004) (no evidence that change in supervisory responsibilities was significant).

NOTE:

The defendants in Simmons relied on a number of cases standing for the proposition that summary judgment is proper on an employer’s FMLA interference affirmative defense where the employee cannot present true evidence to refute the reasons for the employers’ decisions. See, for example, Vira v. Crowley Liner Services, Inc., 723 Fed. Appx. 888, 130 Fair Empl. Prac. Cas. (BNA) 1199, 2018 Wage & Hour Cas. 2d (BNA) 36099 (11th Cir. 2018) (summary judgment proper on FMLA interference claim where employee was terminated due to financially motivated layoffs and where employee could not refute employer’s stated reasons); Jarvela v. Crete Carrier Corp., 776 F.3d 822, 31 A.D. Cas. (BNA) 313, 24 Wage & Hour Cas. 2d (BNA) 178 (11th Cir. 2015) (summary judgment proper on FMLA interference claim where employer presented evidence that it would have terminated plaintiff’s employment regardless of his use of FMLA leave and where plaintiff could not present evidence to challenge or contradict defendant’s stated reasons); Leach v. State Farm Mut. Auto. Ins. Co., 431 Fed. Appx. 771, 17 Wage & Hour Cas. 2d (BNA) 1423 (11th Cir. 2011) (summary judgment proper on FMLA interference claim where employer would have terminated employee’s employment regardless of FMLA leave and where employee could not present any evidence to refute employer’s decisions); Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 15 Wage & Hour Cas. 2d (BNA) 1857, 93 Empl. Prac. Dec. (CCH) P 43856, 159 Lab. Cas. (CCH) P 35734, 76 Fed. R. Serv. 3d 799 (11th Cir. 2010) (summary judgment proper on FMLA interference claim where employer would have terminated employee’s employment regardless of FMLA leave and where employee could not present any evidence to refute employer’s decisions); Cabrera v. Town of Lady Lake, Florida, 2013 WL 12092573 (M.D. Fla. 2013), aff’d, 556 Fed. Appx. 801, 22 Wage & Hour Cas. 2d (BNA) 15 (11th Cir. 2014) (summary judgment proper on FMLA interference claim where employer stated affirmative reasons for not returning employee to her position and where employee could offer no evidence, other than temporal proximity, to refute employer’s reasons); Morro v. DGMB Casino LLC, 112 F. Supp. 3d 260, 2015 L.R.R.M. (BNA) 185463, 2015 Wage & Hour Cas. 2d (BNA) 209109 (D.N.J. 2015) (summary judgment proper on FMLA interference claim where employee’s position was eliminated due to reorganization based on a business decision while employee was on FMLA leave); Murray v. JELD-WEN, Inc., 922 F. Supp. 2d 497, 21 Wage & Hour Cas. 2d (BNA) 1145 (M.D. Pa. 2013) (summary judgment proper on FMLA interference claim where employee was not reinstated after FMLA leave because of downsizing, and where plaintiff could not produce evidence to refute defendant’s reasons).

28 No. 4 Disability Law Compliance Report NL 3

SECOND CIRCUIT ADDRESSES STRESS MIGRAINES AS DISABLING CONDITION

In Woolf v. Strada, 949 F.3d 89 (2d Cir. 2020), for additional opinion, see, 792 Fed. Appx. 143 (2d Cir. 2020), the United States Court of Appeals for the Second Circuit held that an employee who suffered from migraines and who admitted he could perform the essential functions of his position if he were transferred to another supervisor was not disabled within the meaning of the ADA.

Key Facts

• Ronald Woolf worked for Bloomberg L.P. as a sales representative.
• Woolf suffered migraines that left him temporarily incapacitated, which impaired his work ability and his life activities more generally.
• Woolf’s migraines were related to his stress at work.
• Throughout his time at Bloomberg, Woolf’s migraines worsened as he received various performance reviews that placed him within the lower third of employees at the company.
• Starting in 2012 and throughout 2013, Woolf was notified of concerns about underperformance.
• Woolf inquired about the possibility of transferring within the company.
• Woolf was told that an employee must be in good standing to transfer internally. Shortly thereafter, Woolf received a verbal warning about his performance and was told that he had to show “immediate and sustained improvement.”
• Woolf responded with a 19-page memorandum rebutting the review and explaining that the warning “was not necessary or even warranted.”
• In April 2013, Woolf notified Bloomberg’s Human Resources Department and his supervisors that he was having severe migraines and had been unable to complete a certain work task. Woolf also inquired again about his options for transferring.
• Woolf’s migraines continued and, in May 2013, he explained to Bloomberg’s Human Resources Department that his migraine condition could potentially result in serious health consequences.
• Woolf’s treating neurologist identified work-related stress as “the primary trigger” for Woolf’s migraines, and that, absent a “change [in] his current work environment,” “a medical leave of absence … alone will not significantly mitigate this stress.”
• On May 31, 2013, Woolf requested that, instead of being transferred to a new position, he be permitted to continue performing his same job as a sales representative without being managed by his current supervisors.
• Bloomberg did not transfer Woolf, but immediately granted his request for medical leave.
• Between May and November 2013, Woolf was granted intermittent medical leave with full pay.
• However, following another low performance review and a written warning in September 2013, Woolf was fired from his job on January 10, 2014.

Woolf brought suit alleging, in part, that Bloomberg had violated the ADA by failing to provide Woolf with a reasonable accommodation and by firing him. The district court granted Bloomberg summary judgment based on Woolf’s admission that he was able to do the exact same job he had been doing if managed by different supervisors. Woolf appealed to the Second Circuit.

Was Woolf Disabled?

On appeal, Woolf contended that he was substantially limited in the major life activity of working.

NOTE:

Several factors may be considered in determining if a person is limited in the life function of working, such as the geographic area where the person has reasonable access to work, the number of jobs with similar training, knowledge, skills or abilities in that area where the person would also be disqualified, and the job that the person was disqualified from. See Jasany v. U.S. Postal Service, 755 F.2d 1244, 1 A.D. Cas. (BNA) 706, 37 Fair Empl. Prac. Cas. (BNA) 210, 36 Empl. Prac. Dec. (CCH) P 35070 (6th Cir. 1985); Boike v. Akal Security, Inc., 2019 WL 4747735 (E.D. Mich. 2019).

NOTE:

Courts generally hold that the inability to work under a particular supervisor is not a disability within the meaning of the ADA. For example, in Weiler v. Household Finance Corp., 101 F.3d 519, 524, 19 A.D.D. 53, 6 A.D. Cas. (BNA) 106 (7th Cir. 1996), the Seventh Circuit rejected the argument that a person is disabled where the alleged disability was linked only to working alongside particular colleagues or supervisors in a particular job or work location. The court in Weiler stated: “[W]ith respect to the major life activity of working, ‘substantially limits’ must mean significantly restricts the ability to perform a class of jobs or a broad range of jobs in various classes. [Plaintiff] claims she can do her job, but not while being supervised by [a particular supervisor]. If [Plaintiff] can do the same job for another supervisor, she can do the job, and does not qualify under the ADA.” See also Knight v. McCarthy, 2020 WL 759891 (E.D. Va. 2020) (stress and anxiety resulting from a plaintiff’s poor relationship with a supervisor is not a disability); Summers v. Target Corporation, 382 F. Supp. 3d 842, 2019 A.D. Cas. (BNA) 175994 (E.D. Wis. 2019); Scott v. Kaneland Community Unit School Dist. No. 302, 898 F. Supp. 2d 1001, 291 Ed. Law Rep. 256 (N.D. Ill. 2012) (plaintiff-teacher failed to establish that severe attention deficit disorder and depression qualified as a disability because plaintiff was able to perform as a teacher, just not at his current school district because certain supervisors worsened his issues); Pack v. Illinois Department of Healthcare and Family Services, 31 A.D. Cas. (BNA) 407, 2015 WL 507555 (N.D. Ill. 2015); Benson v. California Correctional Peace Officers Ass’n, 2010 WL 682285 (E.D. Cal. 2010).

NOTE:

For a case holding that migraines may be a disabling condition, see Bethscheider v. Westar Energy, 2017 A.D. Cas. (BNA) 10930, 2017 WL 131608 (D. Kan. 2017). For a case in which migraines were held not to constitute a disabling condition, see Allen v. SouthCrest Hosp., 455 Fed. Appx. 827, 25 A.D. Cas. (BNA) 1702 (10th Cir. 2011).

The Second Circuit started its analysis of this issue by setting forth the following general rules:

• To establish a prima facie case of discrimination under the ADA, a plaintiff must show by a preponderance of the evidence that: (1) the employer is subject to the ADA; (2) he or she was disabled within the meaning of the ADA; (3) he or she was otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) he or she suffered an adverse employment action because of his or her disability.
• To establish a prima facie case for failure to provide a reasonable accommodation, a plaintiff also must satisfy the first three factors above, but for the fourth factor, he or she must show by a preponderance of the evidence that the employer refused to make a reasonable accommodation.
• The ADA defines “disability” to include, among other things, “a physical or mental impairment that substantially limits one or more major life activities.”

The Second Circuit concluded, as did the district court, that Woolf’s own admissions made clear that his migraines were related to the stress caused by working under his direct supervisors and that Woolf believed he could perform the same job if he were transferred to a different location or if he were managed by different supervisors. Nevertheless, Woolf contended that he was disabled in the life function of working because his condition would have been alleviated by a transfer.

In responding to this argument, the Second Circuit reasoned:

Woolf’s argument that his condition could be accommodated with a reassignment or transfer conflates two separate inquiries: on the one hand, whether the employee has a disability in the first instance and, on the other hand, whether the employee can perform the job with a reasonable accommodation. As the District Court correctly concluded, under this Court’s precedent, “where a plaintiff’s condition leaves him unable to perform only a single, specific job, ‘he has failed to establish a substantial impairment to his major life activity of working.’ ” That is this case.

Woolf argued, however that the requirements for establishing a substantially limited in the life function of working were changed by Congress’ 2008 ADA Amendments Act (ADAAA). Woolf stressed that in those amendments, Congress instructed courts that the definition of disability should be construed in favor of broad coverage of individuals, and that an impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability.

In rejecting that argument, the Second Circuit reasoned as follows:

• Nothing in the ADAAA’s text, or its legislative history for that matter, suggests that Congress intended to modify, let alone abandon altogether, the well-established understanding that an employee’s inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
• This longstanding, common-sense principle of law recognizes that employees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a “disability.”
• Rather, an employee alleging a substantial limitation in the major life activity of working must show that the limitation affects the ability to perform a class or broad range of jobs.
• Had Congress intended to change this fundamental principle of law in the ADA’s regulatory scheme, Congress could have done so.
• Congress does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.
• The court declined to read a limitation into the statute that was so clearly not enacted by Congress.
• Even after the ADAAA’s enactment in 2008, the court has continued to hold, in non-precedential summary orders, that an impairment does not rise to the level of a “disability” if it only impairs the employee’s ability to perform his or her current job.
• District courts in the Second Circuit have followed suit, and the EEOC’s most recent interpretive guidance on this subject has reinforced that ongoing understanding of the ADA’s definition of disability.
• Every circuit that has addressed this question in the aftermath of the ADAAA has held that Congress’ amendments did not change the fact that a plaintiff alleging a work-related disability must show that his condition precludes him from working in a class or broad range of jobs.

Based on the foregoing, the Second Circuit held:

Accordingly, we join our sister Circuits in holding that the ADAAA did not alter or erode our well-settled understanding that the inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. As relevant here, because Woolf does not attempt to show that his work-induced impairment substantially limited his ability to work in a class or broad range of jobs, no reasonable factfinder could conclude that Woolf has a “disability” within the meaning of the ADA.

NOTE:

See, for example, Booth v. Nissan North America, Inc., 927 F.3d 387, 2019 A.D. Cas. (BNA) 210627 (6th Cir. 2019), cert. denied, 205 L. Ed. 2d 271, 2019 WL 5686496 (U.S. 2019); Mancini v. City of Providence by and through Lombardi, 909 F.3d 32, 34 A.D. Cas. (BNA) 89, 102 Fed. R. Serv. 3d 185 (1st Cir. 2018); Nurriddin v. Bolden, 818 F.3d 751, 2016 Fair Empl. Prac. Cas. (BNA) 106421, 100 Empl. Prac. Dec. (CCH) P 45530 (D.C. Cir. 2016); Carothers v. County of Cook, 808 F.3d 1140, 32 A.D. Cas. (BNA) 731, 128 Fair Empl. Prac. Cas. (BNA) 784 (7th Cir. 2015); Allen v. SouthCrest Hosp., 455 Fed. Appx. 827, 25 A.D. Cas. (BNA) 1702 (10th Cir. 2011) (summary order). See also Mazzeo v. Mnuchin, 751 Fed. Appx. 13, 2018 A.D. Cas. (BNA) 337941, 2018 Fair Empl. Prac. Cas. (BNA) 337941 (2d Cir. 2018) (summary order); Xinwa Chang v. MetroPlus Health Plan, 590 Fed. Appx. 74 (2d Cir. 2015) (summary order); Price v. Mount Sinai Hosp., 458 Fed. Appx. 49 (2d Cir. 2012) (summary order) (holding that limitations on plaintiff’s ability to perform her particular job were “insufficient to satisfy the ADA’s disability,” but referring to pre-ADAAA law); Xinwa Chang v. MetroPlus Health Plan, 2014 WL 842635 (S.D. N.Y. 2014), judgment aff’d, 590 Fed. Appx. 74 (2d Cir. 2015); Davitt v. Rockland County Dept. of Mental Health, 2013 WL 1091982 (S.D. N.Y. 2013).

Failure-to-Accommodate Claim Under the ADA

The Second Circuit further ruled that even assuming that Woolf had a disability within the meaning of the ADA because his migraines substantially limited his vision, speech, and concentration, he failed to identify a suitable position that was open, that he was qualified for, and to which he could have been transferred. Accordingly, the court held that even if Woolf had a disability, no rational factfinder could conclude that Woolf carried his burden to make a prima facie case under the ADA.

NOTE:

The Second Circuit relied on McBride v. BIC Consumer Products Mfg. Co., Inc., 583 F.3d 92, 22 A.D. Cas. (BNA) 650 (2d Cir. 2009), in which the plaintiff argued that a transfer to a new position would be the only effective accommodation of her condition. The court concluded in McBride that the plaintiff had provided no evidence that she possessed the requisite educational background or professional skills and experience for the positions at issue. See also Wang v. HP, Inc., 2020 A.D. Cas. (BNA) 49042, 2020 WL 674352 (D. Conn. 2020) (holding that the record did not permit an inference that a vacant position existed); Moxley v. New York, 2019 WL 5788440 (W.D. N.Y. 2019) (employee failed to show vacant position for which she could be transferred).

NOTE:

The Second Circuit also affirmed the district court’s grant of summary judgment on Woolf’s retaliation claims under the ADA and FMLA on the ground that even if Woolf could make out a prima facie case of retaliation, Woolf failed to produce evidence demonstrating that Bloomberg’s professed non-retaliatory reason for his dismissal and any other adverse employment action (Woolf’s lengthy history of performance deficiencies) was pretextual. It similarly affirmed the lower court’s ruling on Woolf’s FMLA interference claim on the grounds that there was no question that all of Woolf’s requests for leave were granted and Woolf failed to produce any evidence that his supervisors dissuaded him from taking any leave or penalized him for doing so.

28 No. 4 Disability Law Compliance Report NL 1

27 No. 1 Disability Law Compliance Report NL 2

Disability Law Compliance Report

January 2019

Volume 27, Issue 1

Disability Law Compliance Report

EMPLOYER DID NOT VIOLATE FMLA BY TERMINATING INJURED EMPLOYEE BEFORE SHE BECAME COVERED BY ACT

In Jones v. Metropolitan Water Reclamation District of Greater Chicago, 2018 WL 1508529 (N.D. Ill. 2018), the United States District Court for the Northern District of Illinois held that an employer did not violate the FMLA when it terminated a probationary employee after she notified it she needed time off for a workplace injury.

Key Facts

• Monica Jones was hired by the Metropolitan Water Reclamation District of Greater Chicago (MWRD) as a diversity officer beginning on September 8, 2015.
• Regina Berry, diversity administrator of MWRD, was Jones’ immediate supervisor.
• On Friday, July 15, 2015, Jones was in the office elevator when a coworker carrying an oversized display case struck her in the chest, causing Jones to suffer serious chest contusions.
• Over the ensuing weeks, Jones needed time off relating to this injury.
• Also during this time, Berry began to conclude that Jones’ work performance was unsatisfactory.
• On Thursday, July 28, Jones experienced sharp pain during work and scheduled an emergency doctor’s appointment. The doctor issued a “Patient Status Report” recommending she take off two weeks of work to recover from her injury.
• Jones emailed Berry a copy of the report that night. The email to Berry explained:

My doctor is not allowing me to return to work for the next two weeks. I have a attached a soft copy for your review. Do I need to fill out FMLA paperwork for this time? Or is it notated that the Workers Comp claim is in process? Or is this marked as a medical necessity and for time used?…
• Jones then called Berry and left a voicemail about the doctor’s note, the need for time off, and initiating the FMLA process.
• Jones did not work from Friday, July 29 through Wednesday, August 3.
• On Thursday, August 4, Berry called Jones to inform her she was being fired for “unsatisfactory progress.”
• Jones also received a letter from MWRD dated August 4, explaining that Berry had recommended the termination based on Jones’ unsatisfactory services during her probationary period.
• September 8, 2016, would have marked 12 months’ employment at MWRD for Jones. Jones’ period of recovery for the work-related injury ultimately lasted until October 22, 2016.

Jones sued MWRD alleging interference and retaliation under the FMLA. MWRD moved to dismiss on the ground that Jones had not worked the requisite time for FMLA coverage.

District Court’s Analysis

The district court started its analysis by setting forth the following general rules under the FMLA:

• “Eligible employee” is defined in the statute as an employee who has been employed for at least 12 months by the employer and who has at least 1,250 hours of service with such employer during the previous 12-month period. 29 U.S.C.A. § 2611(2)(A).
• The determination of whether an employee meets the hours of service requirement and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. 29 C.F.R. § 825.110(d).

In this case, there was no dispute that Jones had not worked for MWRD for 12 months—and therefore was not an “eligible employee”—on July 28, 2016, when she inquired about taking leave. Jones argued, however, that she was nonetheless protected under the FMLA because her request was for future leave, and the FMLA protects a pre-eligibility request for post-eligibility leave.

The district court first noted that while the Seventh Circuit had not directly addressed whether a pre-eligibility request for post-eligibility leave is protected under the FMLA, the United States District Court for the Northern District of Illinois had, in Reynolds v. Inter-Industry Conference on Auto Collision Repair, 594 F. Supp. 2d 925, 14 Wage & Hour Cas. 2d (BNA) 1430, 157 Lab. Cas. (CCH) P 35538 (N.D. Ill. 2009), as amended, (Jan. 22, 2009). In Reynolds, the plaintiff’s wife went into labor on August 8, 2006. The plaintiff took off eight days’ leave and returned to work on August 16, 2006, at which point he requested additional leave starting in November 2006 to help care for his newborn son. The plaintiff was fired the same day. He would have become eligible for FMLA leave on August 25, 2006. The district court held that “under the FMLA, an employer may not terminate an employee who has worked less than twelve months for requesting foreseeable future leave that the employee will be eligible for and entitled to at the time the leave is to begin.” Reynolds, 594 F. Supp. 2d at 930. In reaching its decision, the court looked to the FMLA notice provisions, which require that an employee notify an employer of foreseeable leave. The court reasoned that it would be “illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave which would, in turn, expose them to retaliation, or interference, for which they have no remedy.” Reynolds, 594 F. Supp. 2d at 928.

The district court next noted that the Eleventh Circuit had reached a similar result in Pereda v. Brookdale Senior Living Communities, Inc., 666 F.3d 1269, 18 Wage & Hour Cas. 2d (BNA) 1003, 95 Empl. Prac. Dec. (CCH) P 44415, 161 Lab. Cas. (CCH) P 35981 (11th Cir. 2012). In Pereda, the plaintiff-employee, Kathryn Pereda, advised the defendant-employer, Brookdale Senior Living Communities (Brookdale), that she was pregnant and would be requesting FMLA leave in the future. When Pereda notified Brookdale of her pregnancy, she had not been employed long enough to be FMLA-eligible, but she expected to be eligible by her due date. Citing performance-related reasons, Brookdale terminated Pereda in early September 2009, before she became eligible for FMLA leave; Pereda brought FMLA interference and retaliation claims against Brookdale. The district court dismissed Pereda’s complaint, reasoning that Brookdale could not have interfered with Pereda’s rights because Pereda was not entitled to FMLA leave at the time she notified Brookdale of her pregnancy. The district court further reasoned because Pereda was not eligible for FMLA leave at the time, she could not have been engaged in statutorily protected activity, as required to bring a retaliation claim. However, the Eleventh Circuit in Pereda reversed the district court’s judgment, holding “a pre-eligible employee has a cause of action if an employer terminates her in order to avoid having to accommodate that employee with rightful FMLA leave rights once that employee becomes eligible.” Pereda, 666 F.3d at 1275. The Eleventh Circuit explained that narrowly interpreting which employees are protected under such circumstances would “permit an employer to evade the FMLA by blacklisting an employee that the employer suspects is likely to take advantage of the Act. ” Pereda, 666 F.3d at 1275. The Eleventh Circuit further reasoned that, “[u]nder the FMLA an employee need not be currently exercising her rights or currently eligible for FMLA leave in order to be protected from retaliation.” Pereda, 666 F.3d at 1276.

NOTE:

Other courts have held the same. See, for example, Wehrley v. American Family Mut. Ins. Co., 513 Fed. Appx. 733, 742, 28 A.D. Cas. (BNA) 620, 21 Wage & Hour Cas. 2d (BNA) 476 (10th Cir. 2013) (“[G]iving an employer notice of intent to take FMLA leave, at least where the employee qualifies for that leave, is protected activity for purposes of an FMLA retaliation.”); Potts v. Franklin Elec. Co., 153 Lab. Cas. (CCH) P 35186, 2006 WL 2474964, at *3 (E.D. Okla. 2006) (“[W]here the employee, before he or she becomes eligible for FMLA leave, is putting the employer on notice of his or her intent to take FMLA leave after they become eligible for FMLA coverage, logic requires that the FMLA be read to require that the employee be permitted to make a charge against the employer for an adverse-employment action.”); Beffert v. Pennsylvania Dept. of Public Welfare, 10 Wage & Hour Cas. 2d (BNA) 1755, 2005 WL 906362, at *3 (E.D. Pa. 2005) (“Since the FMLA contemplates notice of leave in advance of becoming an eligible employee, the statute necessarily must protect from retaliation those currently non-eligible employees who give such notice of leave to commence once they become eligible employees.”).

The district court then stated that it found these decisions to be persuasive as to their facts:

After all, the purpose of the notice requirements is to protect the employer and allow him to “minimize the disruptive effect of an unscheduled leave on his business.” Aubuchon v. Knauf Fiberglass GmbH, 359 F.3d 950, 951 (7th Cir. 2004). Denying protection to ineligible employees that give advance notice of FMLA-eligible leave would frustrate this purpose. An employer cannot reasonably expect an employee to provide such notice without protection from retaliation. Therefore, the Court agrees that the FMLA protects a pre-eligibility request for post-eligibility leave.

Nevertheless, the district court concluded that dismissal of Jones’ complaint was required based on the following reasoning:

• Jones had not alleged that she made a request for post-eligibility leave—that is, leave to occur during a time in which she would have been eligible for FMLA leave.
• When Jones’ doctor recommended that Jones take leave on July 28, 2016, Jones was still five weeks from becoming eligible for FMLA leave.
• The facts as alleged show only that Jones requested an immediate two weeks’ leave and mentioned the need for time off generally.
• Such requests are not protected. See Basden v. Professional Transp., Inc., 714 F.3d 1034, 1039, 27 A.D. Cas. (BNA) 1580, 20 Wage & Hour Cas. 2d (BNA) 1017 (7th Cir. 2013) (“There can be no doubt that the request—made by an ineligible employee for leave that would begin when she would still have been ineligible—is not protected by the FMLA.”).
• Jones’ failure to show she put MWRD on notice that she was requesting leave to be taken once she became eligible distinguishes her claim from those in the cases she cites in support of her claims. Compare Reynolds, 594 F. Supp. 2d at 926 (plaintiff who would become eligible in August requested time off starting November); Pereda, 666 F.2d at 1271 (plaintiff who would become eligible in October requested leave starting in November); Morkoetter v. Sonoco Products Co., 936 F. Supp. 2d 995, 997 (N.D. Ind. 2013) (plaintiff alleged his employer “knew that [he] had plans to take medical leave after becoming eligible for FMLA leave”) (emphasis in original); Sine v. Rockhill Mennonite Home, 275 F. Supp. 3d 538, 2017 Wage & Hour Cas. 2d (BNA) 258935 (E.D. Pa. 2017) (reasonable to conclude from the facts alleged that the plaintiff was putting the defendant on notice that she was scheduling surgery to take place after her one-year work anniversary).

Accordingly, the district court dismissed Jones’ FMLA interference claim without prejudice.

NOTE:

Jones also argued that the MWRD interfered with her FMLA rights not only by terminating her employment but also by failing to provide her an eligibility notice as required by the regulations promulgated pursuant to the FMLA. The district court concluded that while failure to follow the notice requirements may constitute an interference with employee’s FMLA rights, there can be no interference if Jones had no right to FMLA leave (which was the case here). Darst v. Interstate Brands Corp., 512 F.3d 903, 13 Wage & Hour Cas. 2d (BNA) 265, 155 Lab. Cas. (CCH) P 35385 (7th Cir. 2008). See also Brown v. Pitt Ohio Exp., LLC, 21 Wage & Hour Cas. 2d (BNA) 563, 2013 WL 5221483 (N.D. Ill. 2013) (interference claim based on failure to provide proper notice eligibility failed where employee was not an “eligible” or entitled to right under the FMLA).

NOTE:

As to Jones’ retaliation claim, the district court concluded that Jones failed to allege she was entitled to FMLA protection and, therefore, that she engaged in a statutorily protected activity. See Nicholson v. Pulte Homes Corp., 690 F.3d 819, 19 Wage & Hour Cas. 2d (BNA) 737, 162 Lab. Cas. (CCH) P 36053 (7th Cir. 2012) (retaliation claim failed where employee failed to show he engaged in FMLA-protected activity); Smith v. Hope School, 560 F.3d 694, 14 Wage & Hour Cas. 2d (BNA) 1185, 92 Empl. Prac. Dec. (CCH) P 43532, 157 Lab. Cas. (CCH) P 35562 (7th Cir. 2009) (employee could not have been fired for asserting rights under the FMLA where her request for leave was not protected); King v. Ford Motor Company, 2015 WL 5722606 (N.D. Ill. 2015), judgment aff’d, 872 F.3d 833, 130 Fair Empl. Prac. Cas. (BNA) 787, 27 Wage & Hour Cas. 2d (BNA) 813, 101 Empl. Prac. Dec. (CCH) P 45898 (7th Cir. 2017) (retaliation claim failed where employee was not eligible for FMLA protection when she requested leave); Brown, 2013 WL 5221483 at *3 (retaliation claim failed where employee was not “eligible” under FMLA either at time of the request or commencement of the requested leave).

NOTE:

Another relevant case in this context is Hurley v. Kent of Naples, Inc., 746 F.3d 1161, 22 Wage & Hour Cas. 2d (BNA) 318 (11th Cir. 2014). In that case, the plaintiff-employee, Patrick Hurley, had been the CEO of the defendant-employer, Kent of Naples, Inc. Kent of Naples was a subsidiary of Kent Security Services, Inc. Hurley brought FMLA interference and retaliation claims against Kent of Naples, Kent Security Services, and Gil Neuman, the CEO of Kent Security Services, after Hurley was terminated following a dispute with Neuman. The dispute centered around Hurley’s proposed vacation schedule for the next two years, which included 11 weeks of leave. Hurley indicated to Neuman this proposed leave was medically necessary, but the parties had conflicting accounts of whether Hurley specifically mentioned he was suffering from depression and anxiety. At trial, a jury found Hurley was not terminated because he had requested leave, but nevertheless awarded him $200,000 in damages. The defendants moved for judgment as a matter of law, on the ground Hurley’s proposed leave did not qualify for protection under the FMLA, and moved for a new trial or remittitur based on the jury’s inconsistent verdict. The district court denied the motions and entered judgment in Hurley’s favor for a total award of over $1,000,000. Hurley, 746 F.3d at 1165-1166. On appeal, the Eleventh Circuit reversed the district court’s order on the defendants’ motion for judgment as a matter of law, vacated the district court’s judgment, and remanded with instructions to enter judgment in the defendants’ favor. In holding that the defendants were entitled to judgment as a matter of law, the Eleventh Circuit found Hurley had not met his burden of proving his medical conditions qualified for protection under the FMLA, and rejected Hurley’s argument that he could bring FMLA claims without actually qualifying for leave:

[W]e find unconvincing Hurley’s argument that he only needed to provide notice of potentially qualifying leave. We agree with Hurley that the evidence supported a finding that he provided sufficient notice. Under the FMLA, an employee is required to provide notice when the need for leave is foreseeable. 29 U.S.C. § 2612(e). That said, notice is only relevant to an FMLA claim if the noticed leave is protected by the FMLA. Giving an employer notice of unqualified leave does not trigger the FMLA’s protection. Otherwise, the FMLA would apply to every leave request.

Hurley, 746 F.3d at 1165-1166 (alteration added). See also Allen v. Progress Energy, Inc., 15 Wage & Hour Cas. 2d (BNA) 1199, 92 Empl. Prac. Dec. (CCH) P 43495, 2009 WL 425966. At *8 (M.D. Fla. 2009) (granting summary judgment in favor of employer on employee’s retaliation claim because “[e]mployees who are not entitled to FMLA leave may not bring a retaliation claim under the Act based on their attempt to take leave” (alteration added; citations omitted)); Johnson v. Baptist Health South Florida, Inc., 2017 Wage & Hour Cas. 2d (BNA) 204575, 2017 WL 2988275 (S.D. Fla. 2017).

27 No. 1 Disability Law Compliance Report NL 2

28 No. 9 Disability Law Compliance Report NL 3

Disability Law Compliance Report

September 2020

Volume 28, Issue 9

Disability Law Compliance Report

DISTRICT COURT HOLDS THAT TEMPORARY LIGHT-DUTY POSITIONS AND SHORT-TERM LEAVE MAY HAVE BEEN REASONABLE ACCOMMODATION

In Sample v. Board of Commissioners of Starke County, Indiana, 2020 A.D. Cas. (BNA) 271221, 2020 WL 4194142 (N.D. Ind. 2020), the United States District Court for the Northern District of Indiana held that an employer was not entitled to summary judgment on an employee’s ADA claim where the employee contended that all he needed as a reasonable accommodation was either a short-term light-duty position or a short period of time following the exhaustion of his leave provided under the employer’s policies. The district court did, however, grant the employer summary judgement on the employee’s FMLA claim on the ground that the employee was not harmed by the employer’s alleged misconduct.

Key Facts

• Bill Sample worked as a truck driver for the Starke County Highway Department.
• On March 15, 2017, Sample sustained a severe arm injury at work, which required surgery and more than six months of follow-up care from an orthopedic surgeon.
• Sample’s doctor ordered him off work from March 20, 2017 to May 21, 2017.
• After that, the doctor authorized Sample to return to work in a supervisory position only. Highway Department Superintendent Stephen Ritzler identified a possible part-time work crew that Sample could supervise, but the work crew never materialized.
• Sample’s employment was terminated six months after the onset of his disability, pursuant to the county’s disability leave policy.
• Sample’s doctor released him to return to work without restrictions on October 6, 2017, six and a half months after the onset of his disability.
• Sample filed a charge with the EEOC in November 2017.
• In March 2018, the highway department advertised positions for truck drivers, and Sample applied. Sample was interviewed, but not hired.

Sample sued the county under the FMLA and the ADA. Both parties moved for summary judgment.

FMLA Interference

Sample argued that his FMLA rights were interfered with because the county counted 12 weeks of the time he was off under workers’ compensation as leave under the FMLA without informing him of that designation. The county argued that it should be granted summary judgment on Sample’s FMLA interference claim because he suffered no harm.

The county relied upon Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 122 S. Ct. 1155, 152 L. Ed. 2d 167, 27 Employee Benefits Cas. (BNA) 1865, 7 Wage & Hour Cas. 2d (BNA) 1153, 82 Empl. Prac. Dec. (CCH) P 40921, 145 Lab. Cas. (CCH) P 34457 (2002). In Ragsdale, the employee took 30 weeks of leave, the maximum allowed under the employer’s unpaid leave policy. After the employee exhausted her leave and was terminated, the employee sued, arguing that she was entitled to 12 weeks of leave under the FMLA because her employer had failed to notify her that 12 of the 30 weeks would count against her FMLA entitlement. The employee relied on a “penalty provision” in the FMLA regulations, which provided that, if an employee takes medical leave “and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.” The U.S. Supreme Court invalidated the “penalty provision,” reasoning that it was beyond the power of the Secretary of Labor and inconsistent with the remedial nature of the FMLA. The Court further concluded that the penalty was “unconnected to any prejudice the employee might have suffered from the employer’s lapse” in designating the leave as FMLA leave. In addition, the Court reasoned that the regulation “amends the FMLA’s most fundamental substantive guarantee—the employee’s entitlement to ‘a total of 12 workweeks of leave during any 12-month period.’ ” According to the Supreme Court, the effect of the regulation was to give “certain employees a right to more than 12 weeks of FMLA-compliant leave in a given 1-year period.” For these reasons, the Court invalidated the regulation and denied the employee’s claim that the employer had violated her FMLA rights by failing to notify her that 12 weeks of her leave taken pursuant to the employer’s unpaid leave policy would count toward her FMLA leave. See also Lafata v. Church of Christ Home for Aged, 325 Fed. Appx. 416, 21 A.D. Cas. (BNA) 1756 (6th Cir. 2009).

Sample relied on Schober v. SMC Pneumatics, Inc., 2000 WL 1911684 (S.D. Ind. 2000), a decision generally cited for the proposition that misleading or giving incorrect information to an employee by an employer about the employee’s FMLA rights or obligations constitutes interference if the incorrect information causes the employee to forfeit FMLA protection.

NOTE:

See also Kanios v. UST, Inc., 2005 WL 3579161, at *10-11 (D. Conn. 2005) (denying a motion for summary judgment on an interference claim on the basis that plaintiff “may be able to prove that [the defendant] interfered with her FMLA rights by intentionally overstating the amount of leave available to her,” thereby misinforming her of when she needed to return to work in order to secure the benefit of the right to reinstatement); Edwards v. Dialysis Clinic, Inc., 423 F. Supp. 2d 789, 795-796 (S.D. Ohio 2006) (“An employer can be held liable for interference with FMLA entitlements if it incorrectly advises an employee regarding her leave rights” and if the error prejudiced the employee); Mora v. Chem-Tronics, Inc., 16 F. Supp. 2d 1192, 1228-1229, 5 Wage & Hour Cas. 2d (BNA) 475, 138 Lab. Cas. (CCH) P 33882 (S.D. Cal. 1998) (“This Court holds that a Plaintiff can be discouraged from taking absences whether or not s/he knows that such absences could be covered by the FMLA as opposed to other arrangements an employer might make. The bottom line is a Plaintiff is discouraged from doing something that he or she would like to do, but does not do because of a lack of or misinformation.”); Spagnoli v. Brown & Brown Metro, Inc., 2007 WL 2362602, at *12-13 (D.N.J. 2007) (holding there were triable issues of fact on an FMLA interference claim “as to whether Plaintiff was given reason to believe that her absence was deemed covered under FMLA” where plaintiff was never given notice that she had exceeded allowable FMLA leave and employer ensured her that her absence would “have no impact on her job”).

In rejecting Sample’s reliance on Schober, the district court first noted that the decision was written a year before the U.S. Supreme Court decided Ragsdale. More importantly, according to the district court, the Schober opinion dealt with motions in imine rather than with substantive law.

The district court then held that Sample could not show harm because he would have been terminated even if 12 weeks of his workers’ compensation disability leave had been designated as FMLA leave.

As stated by the district court:

Workers’ compensation leave and FMLA leave may run concurrently if the employer provides proper notice and designates the leave. 29 C.F.R. § 825.702(d)(2). Failure to designate leave as FMLA leave doesn’t subject an employer to liability unless the employee can show that the failure to designate prejudiced him. Ridings v. Riverside Med. Ctr., 537 F.3d 755, 762 (7th Cir. 2008) (citing Ragsdale, 535 U.S. at 94, 122 S.Ct. 1155). An employee may be unable to show harm if his serious health condition prevented him from returning to work by the end of the period he would’ve been entitled to FMLA leave. 29 CFR 825.301(e).

According to the district court, Sample was restricted to either no work or only supervisory work for 14 weeks and one day. He presented no evidence that there was a supervisory-only position available for him to fill or that the highway department had a practice of creating supervisory positions, as distinct from light-duty positions, for workers.

Sample contended that he was, in fact, prejudiced because had 12 weeks of the leave not been designated as FMLA leave, he would not have been terminated in September: he still would have 12 weeks of FMLA leave available when his six months of workers’ compensation leave expired.

In rejecting this argument, the district court set for the following reasoning:

• FMLA leave may run concurrently with other leave, and the employee handbook’s disability policy starts the clock for both at the onset of disability.
• The law generally allows an employer to run FMLA leave concurrently with other types of leave as long as the employer provides notice and designates the leave. 29 C.F.R. § 825.702(d)(2).
• The county’s handbook provides that any paid time taken during FMLA leave will be considered part of the leave.
• Sample had notice that any FMLA leave would run concurrently with his workers’ compensation disability leave.
• Therefore, Sample was not prejudiced by the county’s failure to designate the leave as FMLA leave because the FMLA leave would elapse while he still had workers’ compensation leave.

Accordingly, because Sample could not show harm resulting from the county’s alleged interference with his rights under the FMLA, the court granted the county’s motion for summary judgment on the FMLA interference claim.

ADA Failure to Accommodate—Was Sample a Qualified Individual?

The district court next turned to Sample’s ADA failure to accommodate claim. After first determining that there was a dispute of fact as to whether Sample could have performed the essential functions of his position, the district court turned to the county’s argument that it did not fail to accommodate Sample because it was not required to create a light-duty position (which Sample would have required during the period before he was fully released to return to work without restrictions).

In responding to this argument, the district court first set forth the following legal points:

• The county is correct that ADA does not require an employer to create a light-duty position for an injured employee. See Watson v. Lithonia Lighting, 304 F.3d 749, 13 A.D. Cas. (BNA) 969 (7th Cir. 2002).
• A plaintiff must show that a vacant position existed for which he was qualified. Ozlowski v. Henderson, 237 F.3d 837, 11 A.D. Cas. (BNA) 671 (7th Cir. 2001).
• But an employer with a policy of creating light-duty positions for employees must do so for all employees. Severson v. Heartland Woodcraft, Inc., 872 F.3d 476, 33 A.D. Cas. (BNA) 1113, 101 Empl. Prac. Dec. (CCH) P 45882, 168 Lab. Cas. (CCH) P 36561 (7th Cir. 2017), cert. denied, 138 S. Ct. 1441, 200 L. Ed. 2d 717 (2018) (citing Gratzl v. Office of Chief Judges of 12th, 18th, 19th, and 22nd Judicial Circuits, 601 F.3d 674, 22 A.D. Cas. (BNA) 1865 (7th Cir. 2010)).

The district court then noted that while the county’s handbook suggested otherwise, a number of Sample’s coworkers testified that that it was the highway department’s routine practice to find light-duty work for an injured driver. Based on this evidence, the court concluded that there was a genuine issue of fact as to whether the highway department had an unwritten policy of creating light-duty jobs, or if the temporary jobs given to the other workers were simply “acts of grace” for which the county should not be punished. Severson, 872 F.3d at 483.

ADA Failure to Accommodate—Unable to Return to Work

The county next argued that since Sample did not have a date on which he would be cleared to return to his full duties, it was not required to provide Sample with light-duty work for an indefinite period of time. The county relied on Malabarba v. Chicago Tribune Co., 149 F.3d 690, 8 A.D. Cas. (BNA) 1505 (7th Cir. 1998).

NOTE:

In Malabarba, the Seventh Circuit held that the qualifications of an injured worker should be measured against his original position, rather than a temporary position assigned as a result of his injury. It concluded that, to hold otherwise would be to depart from a long-standing recognition that the ADA does not require that employers transform temporary work assignments into permanent positions. The employer in Malabarba had attempted to find permanent work for an employee, who had injured his back and leg, in approximately four separate positions, before terminating him. It was uncontested that the employee in Malabarba could not perform all the functions or was not otherwise qualified for all of the positions that the defendant employer attempted to find for him.

In rejecting the county’s reliance on Malabarba, the district court held:

Malabarba and its progeny relate to whether an individual is a qualified individual rather than whether a person’s limitations have a definite end. Those cases don’t show that the County wasn’t required to make reasonable accommodations simply because it was unclear when Mr. Sample would be able to return to working without accommodation.

ADA Failure to Accommodate—Interactive Process

The district court next turned to the county argument that Sample was responsible for the breakdown of the interactive process.

The court set forth the following general principles of this issue:

• Once an employee discloses that he is qualified individual with a disability, the ADA requires that the employer “engage with the employee in an ‘interactive process’ to determine the appropriate accommodation under the circumstances.” E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 805, 16 A.D. Cas. (BNA) 1761 (7th Cir. 2005).
• The interactive process the ADA foresees is not an end in itself; rather it is a means for determining what reasonable accommodations are available to allow a disabled individual to perform the essential job functions of the position sought. Rehling v. City of Chicago, 207 F.3d 1009, 10 A.D. Cas. (BNA) 589, 54 Fed. R. Evid. Serv. 52 (7th Cir. 2000), amended, (Apr. 4, 2000).
• Failure to engage in interactive process is only actionable if it prevents identification of an appropriate accommodation for a qualified individual. Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055, 29 A.D. Cas. (BNA) 17, 21 Wage & Hour Cas. 2d (BNA) 1315 (7th Cir. 2014).

The county argued that its identification of a position for Sample supervising a part-time crew precludes a finding that the county violated the ADA. In rejecting this contention, the district court reasoned that while its identification of a potential job for Sample is an indication that it was engaging in the interactive process, it did not relieve the county of responsibility for continuing the process when that job was not forthcoming.

The county also argued that Sample failed to request a specific accommodation, so the county had no duty to engage in the interactive process. The county relied on Jackson v. City of Chicago, 414 F.3d 806, 16 A.D. Cas. (BNA) 1601 (7th Cir. 2005) (the breakdown of the interactive process was caused by Jackson’s failure to identify her physical limitations or provide any medical record when the city repeatedly reached out).

The district court distinguished Jackson and similar cases on the ground that the plaintiff in those cases failed in many ways beyond not requesting a specific accommodation. In contrast, Sample provided medical records sufficient to allow the county to determine what accommodations might be required.

As stated by the court:

It is failure to help the employer identify a specific accommodation, not failing to request a specific accommodation, that causes a breakdown. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005) (citing Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d 1130, 1137 (7th Cir. 1996)).

ADA Failure to Accommodate—Additional Short-term Leave

The district court further noted that Sample had asked for a reasonable accommodation—an additional period of short term leave in order to obtain a full release to return to work.

The court stated as follows on this issue:

An employer isn’t required to give an employee unlimited time off as an accommodation. Severson, 872 F.3d at 481. But since the work status reports submitted to the County by Mr. Sample’s doctor included consistent improvements, a reasonable jury could find that Mr. Sample only required “a short leave of absence … [which is] analogous to a part-time or modified work schedule, two of the examples listed in § 12111(9).” Severson, 872 F.3d at 481.

NOTE:

See also Robert v. Board of County Com’rs of Brown County, Kans., 691 F.3d 1211, 26 A.D. Cas. (BNA) 1300, 19 Wage & Hour Cas. 2d (BNA) 1024 (10th Cir. 2012); Fogleman v. Greater Hazleton Health Alliance, 122 Fed. Appx. 581 (3d Cir. 2004); Humphrey v. Memorial Hospitals Ass’n, 239 F.3d 1128, 11 A.D. Cas. (BNA) 765 (9th Cir. 2001); Criado v. IBM Corp., 145 F.3d 437, 8 A.D. Cas. (BNA) 336 (1st Cir. 1998).

100% Healed Policy

Sample argued that the highway department has a 100% healed policy that violates the ADA.

According to the district court:

Such a policy “constitutes a per se violation of the ADA because it ‘prevents individual assessment … [and] necessarily operates to exclude disabled people that are qualified to work.’ ” Mazzacone v. Tyson Fresh Meats, Inc., 195 F. Supp. 3d 1022, 1029 (N.D. Ind. 2016) (quoting Steffen v. Donahoe, 680 F.3d 738, 748 (7th Cir. 2012)).

In concluding that there were material facts in dispute on this issue, the district court stated as follows:

Mr. Ritzler did say that Mr. Sample was terminated because he couldn’t return to 100% work, but he also testified that he looked for other work Mr. Sample could perform. And the handbook specifically states that, when possible and appropriate, the County would cooperate with a doctor’s written order to place an employee on light-duty work. There is a genuine question of whether the County applied a 100% healed policy against Mr. Sample.

ADA Retaliation

Sample contended that the county retaliated by failing to accommodate. The district court rejected that argument on the ground that most courts addressing the issue have found that failure to accommodate cannot serve as an adverse action for an ADA retaliation. See, for example, Avet v. Dart, 2016 A.D. Cas. (BNA) 57060, 2016 WL 757961 (N.D. Ill. 2016); Moore-Fotso v. Board of Education of the City of Chicago, 211 F. Supp. 3d 1012, 341 Ed. Law Rep. 848 (N.D. Ill. 2016), appeal dismissed, 755 Fed. Appx. 587 (7th Cir. 2019); Pack v. Illinois Department of Healthcare and Family Services, 30 A.D. Cas. (BNA) 1105, 2014 WL 3704917 (N.D. Ill. 2014); Sheahan v. Dart, 2015 A.D. Cas. (BNA) 182139, 2015 WL 1915246 (N.D. Ill. 2015); Pagliaroni v. Daimler Chrysler Corp., 33 Nat’l Disability Law Rep. P 142, 2006 WL 2668157 (E.D. Wis. 2006); Imbody v. C & R Plating Corp., 21 A.D. Cas. (BNA) 1336, 2009 WL 196251 (N.D. Ind. 2009).

Sample also alleged retaliation in the county’s failure to rehire him. After concluding that the temporal connection between the filing of his EEOC charge and his failure to be hired was insufficient by itself to raise an issue of triable fact, the district court noted that Sample offered his sworn statement that Ritzler said the county’s attorney instructed him to not hire Sample because Sample had filed the charge with the EEOC. Ritzler denied that statement, but according to the district court, the evidence raised a question of fact as to whether there was a causal connection between Sample’s charge and the county’s decision to not rehire him.

NOTE:

The district court also rejected the county’s reliance on Guzman v. Brown County, 884 F.3d 633, 33 A.D. Cas. (BNA) 1613, 27 Wage & Hour Cas. 2d (BNA) 1097, 168 Lab. Cas. (CCH) P 36606 (7th Cir. 2018), for the proposition that Sample could not bring a retaliation claim based on the county’s post-termination conduct. The district court relied on Baines v. Walgreen Co., 863 F.3d 656, 130 Fair Empl. Prac. Cas. (BNA) 462, 101 Empl. Prac. Dec. (CCH) P 45837, 103 Fed. R. Evid. Serv. 1145 (7th Cir. 2017), in which the Seventh Circuit had called a refusal to rehire an adverse action in the context of a Title VII retaliation claim.

Accordingly, the district court granted summary judgment to the county on Sample’s FMLA claim but allowed the ADA claim to proceed to trial.

28 No. 9 Disability Law Compliance Report NL 3

26 No. 4 Disability Law Compliance Report NL 2
Disability Law Compliance Report
| April 2018
Volume 26, Issue 4
Disability Law Compliance Report

EMPLOYER JUSTIFIED IN TERMINATING EMPLOYEE WHO WAS UNABLE TO RETURN TO WORK AFTER EXTENDED LEAVE
In Gardenhire v. Manville, 2018 A.D. Cas. (BNA) 40927, 2018 Wage & Hour Cas. 2d (BNA) 40927, 2018 WL 739379 (10th Cir. 2018), the United States Court of Appeals for the Tenth Circuit held that an employer was not obligated to grant further leave after an employee had been absent from work for approximately nine months.
Key Facts
• Jimmy Gardenhire worked for Johns Manville (JM) as an inspector-packer.
• His position required that he prepare, remove, pack, scrap or otherwise dispose of all insulation material coming from the production line.
• In December 2012, Gardenhire broke his left elbow while ice skating. An orthopedic surgeon imposed work restrictions of one-handed jobs only and no left-handed lifting for four weeks.
• Consequently, Gardenhire began taking FMLA leave and short-term disability leave.
• After Gardenhire’s FMLA leave expired, his doctor, Dr. James Bogener, provided a medical note dated April 17, 2013, extending the restrictions for six more weeks.
• On June 5, Dr. Bogener again extended Gardenhire’s restrictions for six weeks.
• On July 29, JM’s regional human resources manager, Shirley Vawter, sent Gardenhire a letter, seeking information about his expected return to work on August 8. She instructed Gardenhire to discuss with his physician his day-to-day job responsibilities and she attached a “Request for Medical Information for Reasonable Accommodation” form.
• On August 9, Dr. Bogener completed the reasonable accommodation form, stating that Gardenhire could perform one-handed jobs only, with no lifting using the left hand for at least six additional weeks.
• Vawter considered whether JM could reasonably accommodate Gardenhire’s restrictions, but ultimately concluded no reasonable accommodation was available. She then decided to terminate Gardenhire, effective August 30, 2013.
• Nearly eight months later, in April 2014, Gardenhire contacted Dr. Bogener and requested a full work release, retroactive to September 1, 2013. Based on the information Gardenhire provided, Dr. Bogener signed a return to work form indicating Gardenhire felt he was ready to return to work on September 1, 2013.
Gardenhire brought suit under the ADA and FMLA. The district court granted JM summary judgment and Gardenhire appealed to the Tenth Circuit.
Tenth Circuit’s Analysis
The Tenth Circuit started its analysis by setting forth the following general principles relating to the burden of proof under the ADA.
• When a claim alleging a violation of the ADA is based on circumstantial evidence, courts apply the familiar McDonnell Douglas burden-shifting framework. Williams v. FedEx Corporate Services, 849 F.3d 889, 33 A.D. Cas. (BNA) 481 (10th Cir. 2017).
• Under that framework, a plaintiff must first establish a prima facie case of discrimination by showing that: (1) he or she is disabled (or perceived as disabled) as defined by the ADA, (2) he or she is qualified to perform the essential functions of his job with or without reasonable accommodation, and (3) he or she suffered discrimination as a result of his or her disability.
• The failure to provide reasonable accommodations constitutes disability discrimination under the ADA. Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154, 9 A.D. Cas. (BNA) 738 (10th Cir. 1999).
Gardenhire argued that his medical restriction on lifting with his left arm did not prevent the performance of his job’s essential functions. In rejecting this contention, the Tenth Circuit reasoned as follows:
The written job description for the inspector-packer position states that the employee must “remove … all material coming from the machine” and “[s]et aside defective material.” … Gardenhire testified that the removal of materials, which typically weigh between “25 to 55 pounds,” … was accomplished by “grab[bing] them” and “lift[ing] them” with his “arms,” … Although he could sometimes use just one arm, the job at other times “required [him] to use two hands … to be able to lift some material from one area to the next” and to “throw it to another location.” … We conclude that no reasonable jury could find that Gardenhire was able to perform the essential functions of his job using just one arm.
Reasonable Accommodations
Gardenhire next argued that he could perform the essential functions of his position with a reasonable accommodation. On this issue the Tenth Circuit set forth the following general legal principles:
• The determination of whether a requested accommodation is reasonable must be made on the facts of each case taking into consideration the particular individual’s disability and employment position. Punt v. Kelly Services, 862 F.3d 1040, 33 A.D. Cas. (BNA) 919 (10th Cir. 2017).
• An employee’s request to be relieved from an essential function of his position is not, as a matter of law, a reasonable or even plausible accommodation.
Gardenhire argued that JM should have accommodated his injury by providing him additional leave beyond August 30, 2013—his termination date. He stressed that Dr. Bogener released him to work without any restrictions just two days later.
In rejecting this contention, the Tenth Circuit reasoned:
Although “a reasonable allowance of time for medical care and treatment may, in appropriate circumstances, constitute a reasonable accommodation,” an employer “[i]s not required to wait indefinitely for [the employee’s] recovery.” Hudson v. MCI Telecomms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996). JM allowed Gardenhire eight months of continuous leave before finally terminating him. Gardenhire does not cite any evidence that he notified JM contemporaneously to his termination that Dr. Bogener had removed his work restrictions. Indeed, Dr. Bogener did not execute the medical-release form until April 2014—nearly eight months after JM terminated Gardenhire.3 No reasonably jury could find that JM failed to reasonably accommodate Gardenhire’s injury.
100% Healed Policy
Gardenhire next argued that he need not establish a prima facie case under the McDonnel Douglas test because he had direct evidence of discrimination—that JM requires employees to be 100% healed before allowing them to resume work.
In addressing this issue, the Tenth Circuit recognized that a 100% healed policy is discriminatory because such a practice permits employers to substitute a determination of whether a qualified individual is 100% healed for the required individual assessment whether the qualified individual is able to perform the essential functions of his or her job either with or without accommodation. McGregor v. National R.R. Passenger Corp., 187 F.3d 1113, 9 A.D. Cas. (BNA) 1207 (9th Cir. 1999); see also Martin v. Kansas, 190 F.3d 1120, 9 A.D. Cas. (BNA) 1075 (10th Cir. 1999).
Nevertheless, the Tenth Circuit reasoned that this legal principle did not help Gardenhire under the facts of this case.
• First, according to the Tenth Circuit, Gardenhire did not raise a triable issue as to whether JM had such a policy. To show the existence of 100% healed policy, Gardenhire cited the deposition testimony of a human resources associate which both the district court and the Tenth Circuit found to be wholly speculative.
• Second, a 100% healed policy cannot give rise to a finding of liability and relief under the ADA without the statutorily required inquiry into whether those affected by the policy are disabled and able to perform the essential functions of the jobs they seek or desire with or without reasonable accommodation. Hohider v. United Parcel Service, Inc., 574 F.3d 169, 22 A.D. Cas. (BNA) 133 (3d Cir. 2009). Here, Gardenhire did not create a triable issue as to whether he could perform the essential functions of his job with or without a reasonable accommodation. Thus, whether or not JM had a 100% healed policy had no bearing on Gardenhire’s ADA claim. See, for example, Moore v. Jackson County Bd. of Educ., 979 F. Supp. 2d 1251, 304 Ed. Law Rep. 356 (N.D. Ala. 2013).
FMLA Claims
Turning to Gardenhire’s FMLA claim, the Tenth Circuit set forth the following general rules:
• It is unlawful for an employer to retaliate against an employee for taking FMLA leave.
• Without direct evidence of retaliation, a plaintiff must establish a prima facie case of retaliation by proving that: (1) he or she engaged in a protected activity; (2) the employer took an action that a reasonable employee would have found materially adverse; and (3) there exists a causal connection between the protected activity and the adverse action.
The Tenth Circuit agreed with the district court that Gardenhire had failed to show causation. Specifically, Gardenhire’s FMLA leave expired by April 2013, but JM did not take any adverse action against him until August 30, 2013, when it fired him. According to the Tenth Circuit, a nearly five-month gulf between the expiration of FMLA leave and an adverse employment action is insufficient to establish causation. Richmond v. ONEOK, Inc., 120 F.3d 205, 3 Wage & Hour Cas. 2d (BNA) 1825 (10th Cir. 1997) (holding that a three-month period, standing alone, is too long to infer causation from temporal proximity). With no other causal evidence, summary judgment was appropriate. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179, 9 A.D. Cas. (BNA) 835 (10th Cir. 1999) (“[U]nless the termination is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation.”).
Interference
Gardenhire next asserted that JM’s “100% healed practice … interfered with [his] right to be restored to his position during the initial 12 weeks of his leave.”
The Tenth Circuit agreed with the district court’s conclusion that when JM fired Gardenhire, he had no right to reinstatement because his FMLA leave had expired almost five months earlier. The Tenth Circuit also concluded that summary judgment was appropriate on this claim because: (1) Gardenhire had not shown a triable issue as to whether JM even had a 100% healed policy; and (2) even if such a policy existed, the FMLA allows an employer to have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work.
Accordingly, the Tenth Circuit affirmed the district court’s judgment.
Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

26 No. 4 Disability Law Compliance Report NL 2

ATTORNEY SHOULD HAVE BEEN ALLOWED TO TELECOMMUTE AS A REASONABLE ACCOMMODATION
In a break from the decisions by most courts, the United States Court of Appeals for the Sixth Circuit held in Mosby-Meachem v. Memphis Light, Gas & Water Division, 883 F.3d 595 (6th Cir. 2018), that an employee was entitled to the reasonable accommodation of being allowed to work at home for a period of time.
Key Facts
• Andrea Mosby-Meachem is an in-house attorney for Memphis Light, Gas & Water Division (MLG&W).
• On March 14, 2011, MLG&W’s general counsel, Cheryl Patterson, sent the following email to all lawyers in the legal department:
Please be reminded that office hours for the Legal Department are 8:30 a.m.-5:00 p.m. Monday through Friday. All employees, including the lawyers, are expected to be at work and devoting their time and attention to Division business during those hours. As professionals, you are expected to set a good example for the support staff by being in the office on time and staying at work until the end of the day.
• Despite the foregoing policy, employees often telecommuted.
◦ Indeed, on one occasion in 2012, Mosby-Meachem herself was permitted to work from home for two weeks while she was recovering from neck surgery, during which time she adequately performed her duties.
• On January 2, 2013, during her 23rd week of pregnancy, Mosby-Meachem’s doctors discovered a problem requiring her hospitalization. Following surgery, Mosby-Meachem’s doctors placed her on “modified bed rest” for approximately 10 weeks, during which time she was restricted from engaging in prolonged standing or sitting and from lifting heavy objects.
• On January 7, Mosby-Meachem requested that she be permitted to work from a bed either within the hospital or within her home for 10 weeks. Two days later, on January 9, she submitted documentation supporting her request, including a letter from her treating physician.
• On January 15, MLG&W assembled an ADA Committee and conducted a telephonic process meeting with Mosby-Meachem. During the meeting, Mosby-Meachem stated she could perform each of the essential functions of her job remotely. Despite Mosby-Meachem’s assurances, the ADA Committee denied her accommodation request on January 18.
• In a letter dated January 30, MLG&W explained that the denial was based on the determination that physical presence in the office was an essential function of Mosby-Meachem’s job, and teleworking created concerns about maintaining confidentiality.
◦ From the time of her request on January 7 until she received the denial letter on January 30, Mosby-Meachem had continued to perform her work remotely, and no one from MLG&W ever told her to stop working during this time.
• Following her 10 weeks of restriction, Mosby-Meachem returned to work on April 1, and she continued to work up until her baby was born on April 14, 2013.
• During the time between January 3 and her return to work on April 1, Mosby-Meachem initially received sick leave under the FMLA for four weeks and then subsequently received short-term disability for the remainder of the period.
• From February 26, until the end of the accommodation period, Mosby-Meachem’s license to practice law was suspended for failure to pay the annual registration fee. Mosby-Meachem, however, claims that she was unaware of the suspension until receiving a June 28 letter from Patterson about the issue, and she paid the fee the next day.
Mosby-Meachem filed suit under the ADA. A jury returned a verdict for Mosby-Meachem and awarded her $92,000 in compensatory damages. The district court granted Mosby-Meachem equitable relief based on lost pay and her forced use of sick leave time. MLG&W appealed to the Sixth Circuit.
Sixth Circuit’s Analysis
MLG&W’s primary argument on appeal was that it was entitled to judgment as a matter of law because the jury did not have a legally sufficient basis to find that Mosby-Meachem could have effectively performed all the essential functions of her job with her requested 10-week teleworking accommodation.
MLG&W contended that Mosby-Meachem’s requested accommodation to telework was “per se unreasonable” as it removed several essential functions of her job that could only be performed in person; therefore, she failed to establish a prima facie case of discrimination. MLG&W based this argument on the following evidence: (i) Mosby-Meachem’s own testimony, (ii) the written description of her position, and (iii) testimony from former MLG&W employees that physical presence was an essential function of a MLG&W attorney’s job.
MLG&W further relied on the Sixth Circuit’s decision in E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 31 A.D. Cas. (BNA) 749 (6th Cir. 2015), which stated that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.” According to MLG&W, this decision precluded a reasonable jury from finding that Mosby-Meachem was “otherwise qualified” from performing her job while she was on bedrest.
The Sixth Circuit reasoned that, while there was evidence produced at trial to support MLG&W’s argument, Mosby-Meachem had presented sufficient evidence supporting a finding that she could perform all the essential functions of her job remotely for 10 weeks. For example, several MLG&W employees, as well as outside counsel who worked with Mosby-Meachem, testified that they felt she could perform all essential functions during the 10-week period working from home. The court also noted that there was uncontested evidence that Mosby-Meachem had never tried cases in court or taken depositions of witnesses—two functions listed in her job description. According to the court, “[g]iven all the evidence presented by Mosby-Meachem that both undermined MLG&W’s evidence and independently supported a finding that she could perform the essential functions of her job remotely for 10 weeks, a rational jury could find that she was a qualified employee and that working remotely for 10 weeks was a reasonable accommodation.”
Sixth Circuit Precedent
The Sixth Circuit next discussed the Ford decision and the recent case of Williams v. AT&T Mobility Services LLC, 847 F.3d 384, 33 A.D. Cas. (BNA) 385 (6th Cir. 2017). In Ford, the Sixth Circuit upheld summary judgment for an employer, reasoning that “regular and predictable attendance” at work on-site was an essential function of the plaintiff’s employment. The plaintiff in Ford, however, had an extensive history of poor performance and high absenteeism, some of which stemmed from her irritable bowel syndrome, requiring other employees to cover for her. Ford attempted to accommodate the plaintiff, but her poor performance and absenteeism eventually led to her termination.
The Sixth Circuit distinguished Ford on the ground that Mosby-Meachem had performed her duties remotely in the past without any attendance issues or decline in work product. Further, Mosby-Meachem’s requested accommodation—teleworking for a limited 10-week period—was significantly different from that of the plaintiff in Ford, who sought to work off-site up to four days a week indefinitely and on an indeterminate schedule.
In Williams, the Sixth Circuit held that attendance was an essential job function for a call center employee. In that case, the plaintiff had to be physically present at her work station and logged into the computer to receive customer service calls; otherwise those calls would automatically be routed to another employee. Additionally, as noted by the Sixth Circuit, “a person like Williams who reacts to random customer calls with anxiety attacks that require her to log off of her workstation is not capable of performing the essential job functions of an AT&T CSR.” Williams, 847 F.3d at 398.
The Sixth Circuit distinguished Williams on the ground that Mosby-Meachem’s job was not tied to her office desk, and she had already demonstrated her ability to work remotely without issue. Further, her disability—and corresponding accommodation—was for a limited time rather than an indefinite period. Therefore, according to the Sixth Circuit, the finding that the plaintiff in Williams was not qualified to do her job was premised on facts that were dramatically different from that of Mosby-Meachem.
Alternative Accommodations
MLG&W also contended that even if Mosby-Meachem’s requested accommodation was reasonable, it should nevertheless be granted judgment as a matter of law because it offered Mosby-Meachem an alternative reasonable accommodation in the form of sick leave and short-term disability.
In addition to concluding that MLG&W waived this argument, the Sixth Circuit reasoned as follows:
• Once the employee requests an accommodation, the employer has a duty to engage in an “interactive process” to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
• At trial, Mosby-Meachem presented evidence that MLG&W did not in fact engage in an interactive process, but rather had already determined what accommodation it was willing to offer before ever speaking with Mosby-Meachem.
• Given this evidence, the jury could have reasonably concluded that MLG&W did not actually engage in an interactive process and that its proposed accommodation was not reasonable.
Equitable Relief
The district court granted Mosby-Meachem’s request for equitable relief and awarded her $18,184.32 in back pay and the reinstatement of her leave benefits. MLG&W’s challenged this award on the ground that it would have been the unauthorized practice of law for Mosby-Meachem to have performed her job while her license was suspended and therefore she was not “qualified” for her job.
In holding that this argument was without merit, the Sixth Circuit reasoned:
• The ADA incorporates the procedures and remedies available under Title VII, including back pay.
• In the absence of exceptional circumstances, back pay should always be awarded when a Title VII violation is found.
• Sick leave, vacation pay, pension benefits, and other fringe benefits the claimant would have received but for discrimination should also be awarded.
• It is undisputed that neither party was aware that Mosby-Meachem’s law license was suspended during the relevant time frame and that—had MLG&W not denied her requested accommodation—Mosby-Meachem would have received her full pay for work performed during this time.
• Moreover, the possible unlicensed practice of law is an issue for the Tennessee Bar and that the appropriate remedy would be discipline imposed by that body, not disgorgement of Mosby-Meachem’s salary to her employer.
• Accordingly, the district court did not abuse its discretion in awarding Mosby-Meachem back pay for the time during which her law license was administratively suspended.
Accordingly, the Sixth Circuit affirmed the orders of the district court denying MLG&W’s motion for judgment as a matter of law or a new trial and awarding Mosby-Meachem equitable relief.
Westlaw. © 2018 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

26 No. 4 Disability Law Compliance Report NL 1

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22 No. 6 Disability Law Compliance Report NL 2

Disability Law Compliance Report

June 2014

Volume 22, Issue 6

Disability Law Compliance Report

By Gary S. Marx

ELEVENTH CIRCUIT ADDRESSES WAIVER OF FMLA CLAIMS

In Paylor v. Hartford Fire Ins. Co., 22 Wage & Hour Cas. 2d (BNA) 625, 2014 WL 1363544 (11th Cir. 2014), the Eleventh Circuit addressed the issue of the waiver of FMLA claims in a severance agreement.

Key Facts

• Blanche Paylor was employed by Hartford Fire Insurance Company (Hartford).
• While working at Hartford between January 2008 and September 2009, Paylor requested (and received) 390 hours of FMLA leave.
• Sometime in late August or early September 2009, Paylor submitted a request for additional FMLA leave.
• On September 11, 2009, Paylor received a performance review which included a performance warning, criticized the quality of her work, and explained what she would have to do to keep her job.
• On September 16, Paylor’s supervisors initiated a meeting and gave her a choice: she could accept a one-time offer of 13 weeks of severance benefits in exchange for signing a severance agreement, under which Paylor waived any claims she might have had under the FMLA, or she could agree to a performance improvement plan requiring her to meet various performance benchmarks or face termination.
• Paylor signed the severance agreement on September 17. She claimed, however, that she only signed the agreement because her stress level had become unmanageable: she had requested FMLA leave in the first place to care for her ailing mother, and between her mother’s deteriorating health and the pressures she experienced at work, she “just wanted out.”
• Sometime after executing the agreement, Paylor brought suit against Hartford alleging that it interfered with her exercise of her FMLA rights and retaliated against her for exercising her rights.

Hartford moved for summary judgment on the basis of Paylor’s severance agreement. The district court granted the motion, reasoning that “[a]lthough the Eleventh Circuit Court of Appeals has not directly addressed the legality of a release of FMLA claims based on past employer conduct, the [District] Court is confident that such a release would be held enforceable.” Paylor appealed to the Eleventh Circuit.

Eleventh Circuit’s Analysis

The Eleventh Circuit started its analysis by noting that there was:

no dispute in this case that the FMLA applies to Hartford, that Paylor was an “eligible employee” as defined by the statute, or that Paylor was entitled to FMLA leave at the time she requested it. Nor is the question whether Hartford in fact interfered with or retaliated against Paylor’s assertion of her FMLA rights. The question before us concerns only the validity of the Severance Agreement that Paylor signed on September 17, 2009. If the agreement is valid, then the District Court was correct in concluding that Paylor waived her FMLA claims and that Hartford was entitled to judgment as a matter of law.

Paylor’s first argument was that the severance agreement was invalid under Department of Labor (DOL) regulations insofar as it purported to release Paylor’s “prospective” FMLA rights. According to Paylor, the waiver could not be enforced against her because the FMLA does not permit employees to waive “prospective rights” without DOL or court approval. Paylor contended that her rights in this case were “prospective” in the sense that she had—at the time she signed the agreement—an outstanding request for FMLA leave. Therefore, according to Paylor, the district court should have found the waiver invalid and allowed her to proceed on her FMLA claim.

In addressing this issue, the Eleventh Circuit first noted that before 2009, 29 C.F.R. § 825.220(d) did not include the word “prospective” in its discussion of an employee’s FMLA rights. The regulation said, simply, “[e]mployees cannot waive, nor may employers induce employees to waive, their rights under FMLA.” This led at least one Circuit Court to conclude that the regulation’s plain language prohibited both the retrospective and prospective waiver or release of an employee’s FMLA rights. The DOL expressly disagreed with this interpretation of the regulation and in January 2009, it amended the regulation to include the word “prospective.”

The current version of 29 C.F.R. § 825.220(d) reads:

Employees cannot waive, nor may employers induce employees to waive, their prospective rights under FMLA. For example, employees (or their collective bargaining representative) cannot “trade off” the right to take FMLA leave against some other benefit offered by the employer. This does not prevent the settlement or release of FMLA claims by employees based on past employer conduct without the approval of the [DOL] or a court. (emphasis added)

Accordingly, the Eleventh Circuit held:

It is now, therefore, well-settled that an employee may not waive “prospective” rights under the FMLA, but an employee can release FMLA claims that concern past employer behavior. The only remaining issue is the meaning of the word “prospective” as it concerns FMLA rights, which is a question of first impression in our circuit.

Was Paylor’s Claim “Prospective”?

Paylor argued that the term “prospective rights” under the FMLA means “the unexercised rights of a current eligible employee to take FMLA leave and to be restored to the same or an equivalent position after the leave.”

In rejecting this contention, the Eleventh Circuit held:

The problem with this interpretation is obvious: it proves too much. All eligible employees possess an “unexercised” right, in the abstract, to FMLA leave. If by “prospective” rights the DOL regulation really meant “unexercised” rights, the FMLA would make it unlawful to fire any eligible employee, or at least any eligible employee with an outstanding request for FMLA leave. That is not the law: substantive FMLA rights are not absolute. … Paylor’s interpretation of “prospective rights” is thus too expansive.

NOTE:

The Eleventh Circuit supported its view by noting that an employer is not liable for interference if the employer can show that it refused to restore an employee to his position of employment for a reason unrelated to his FMLA leave. See Spakes v. Broward County Sheriff’s Office, 631 F.3d 1307, 17 Wage & Hour Cas. 2d (BNA) 225, 94 Empl. Prac. Dec. (CCH) P 44101, 160 Lab. Cas. (CCH) P 35869 (11th Cir. 2011); Strickland v. Water Works and Sewer Bd. of City of Birmingham, 239 F.3d 1199, 25 Employee Benefits Cas. (BNA) 2050, 6 Wage & Hour Cas. 2d (BNA) 1185, 79 Empl. Prac. Dec. (CCH) P 40375, 142 Lab. Cas. (CCH) P 34196, 190 A.L.R. Fed. 787 (11th Cir. 2001) (“An employer can deny the right to reinstatement … if it can demonstrate that it would have discharged the employee had he not been on FMLA leave.”).

According to the Eleventh Circuit, the better interpretation of “prospective rights,” is that “prospective rights” are those allowing an employee to invoke FMLA protections at some unspecified time in the future. An employer could not, for example, offer all new employees a one-time cash payment in exchange for a waiver of any future FMLA claims. That waiver would be “prospective” in the Eleventh Circuit’s view and therefore invalid under the FMLA, because it would allow employers to negotiate a freestanding exception to the law with individual employees.

NOTE:

As noted by the Eleventh Circuit, Black’s Law Dictionary states that a “prospective waiver” is a waiver of something that has not yet occurred, such as a contractual waiver of future claims for discrimination upon settlement of a lawsuit.

In this case, the severance agreement did not ask Paylor to assent to a general exception to the FMLA, but rather to a release of the specific claims she might have based on past interference or retaliation. According to the Eleventh Circuit:

Section 825.220(d) makes clear that the FMLA’s private right of action attaches to the employer’s conduct—i.e., to the alleged act of interference or retaliation—and not to some free-floating set of “unexercised” FMLA rights. And the text of the regulation explicitly contemplates the possibility that an employee can settle claims “based on past employer conduct.” § 825.220(d). We therefore reject Paylor’s interpretation of “prospective” FMLA rights; § 825.220(d)’s prohibition of “prospective” waiver means only that an employee may not waive FMLA rights, in advance, for violations of the statute that have yet to occur.

Having answered the interpretation question, the Eleventh Circuit reasoned that all that remained was for it to apply § 825.220(d) to the facts of Paylor’s case. Here, the conduct Paylor complained of happened before she signed the severance agreement. Therefore, according to the court, her execution of the agreement wiped out any backward-looking claims she might have had against Hartford.

Accordingly, the court held:

In signing the agreement and accepting her severance benefits, Paylor settled claims “based on past employer conduct,” § 825.220(d), and so the District Court did not err in concluding that the agreement was valid and that it entitled Hartford to judgment as a matter of law.

Was execution of the Agreement Knowing and Voluntary?

Paylor alternatively argued that she did not sign the severance agreement knowingly and voluntarily, and therefore it was invalid. The Eleventh Circuit set forth the following test for determining when an employee’s waiver is voluntary and knowing based on the totality of the circumstances:

we consider (1) the education and business experience of the employee; (2) the time the employee spent considering the agreement before signing it; (3) the clarity of the language in the agreement; (4) the employee’s opportunity to consult with an attorney; (5) whether the employer encouraged or discouraged consultation with an attorney; and (6) the consideration given in exchange for the release compared to the benefits the employee was already entitled to receive.

Applying the foregoing factors here, the Eleventh Circuit concluded that the district court did not err in concluding that Paylor executed the severance agreement knowingly and voluntarily.

22 No. 6 Disability Law Compliance Report NL 2

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Application of OSHA to Multiemployer Worksites.