Hope everyone had a great Thanksgiving weekend.
Before getting started on the case of the day, I wanted to let everyone know that I have updated two blog entries in the Understanding the ADA blog. First, last week’s blog entry discussing how people in California who associate with a person with a disability have a right to have Batson challenges exercised on their behalf has been updated to also reference an earlier case, this one out of the Fifth Circuit, which said that a wheelchair user had standing to pursue inaccessibility of the courthouse claims because he had been called for jury duty in the past and likely would be called for jury duty in the future. Second, the blog entry discussing the football player who claimed disability discrimination because he was unable to wear a visor per a referee’s decision, that he needed in order to play the game safely (he did wind up suffering an injury when he could not wear the visor), was dismissed. Case was dismissed on the grounds that the Labor-Management Relations Act preempted the New Jersey Law Against Discrimination claims and that he did not file with the EEOC within 300 days so he did not properly exhaust administrative remedies per the ADA. The original blog entry on the Miles case along with the update can be found here at the end of that blog entry.
The case of the day is Gray v. FleetPride, Inc., 21 C 4981 (N.D. Ill. Oct. 17, 2022), here, decided by Magistrate Judge Sunil R. Harjani of the United States District Court for the Northern District of Illinois on October 17, 2022. As usual, the blog entry is divided into categories and they are: facts; court’s discussion of disability under the ADA; court’s discussion that plaintiff sufficiently alleged an actual impairment; court’s reasoning that plaintiff sufficiently alleged that he was regarded as having a disability; court’s reasoning that plaintiff sufficiently alleged a failure to accommodate an actual disability by not even engaging in discussions of reassigning him to a vacant position; plaintiff did adequately request an accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Gray, the plaintiff, was employed by Midway Truck Parts as a Driver beginning on March 29, 1999. Midway Truck Parts was acquired by FleetPride in about 2011, and Gray remained employed as a Driver by FleetPride. On December 22, 2016, Gray was injured on the job while making a delivery. Almost five months later, on May 18, 2017, Gray provided FleetPride with a letter from his physician releasing him to return to work with restrictions. In particular, Gray’s physician’s letter stated that he could return to work on May 22, 2017 with permanent restrictions that he should be precluded from lifting more than 35 pounds and limited to pushing and pulling at 150 pounds. Due to his restrictions, Gray told FleetPride that he was willing and able to either work in a new position or a position in an alternative location. Then, on May 22, 2017, FleetPride discharged Gray, stating “since your restrictions are permanent, unfortunately we are unable to accommodate.” Defendant moved to dismiss the complaint.
Court’s Discussion of Disability under the ADA
- The ADA explicitly directs at 42 U.S.C. §12102(4)(A), that disability has to be construed in favor of broad coverage.
- The ADA defines major life activities at 42 U.S.C. §12102(2)(A), to include lifting and working.
- With the amendments to the ADA, the impairment does not need to prevent or significantly or severely restrict an individual from performing a major life activity in order to be considered substantially limiting.
- The question is whether a plaintiff is limited as compared to most people in the general population.
- A plaintiff must allege that he is disabled but that he also can still do the job with or without reasonable accommodations.
Court’s Discussion That Plaintiff Sufficiently Alleged an Actual Impairment
- Plaintiff alleged an actual impairment because he stated in his complaint that he suffered an on-the-job injury on December 22, 2016, requiring him to be off work until May 22, 2017. He also said that lifting and his ability to push and pull were limited due to his injury. His physician said that he could return to work on May 22, 2017 but should not lift over 35 pounds and had a restriction of pushing and pulling at 150 pounds. He also alleged that his postinjury condition and corresponding permanent physical restrictions substantially limited daily life as well as caused him pain.
- Lifting and reaching are major life activities under the ADA.
- A substantial limitation need not be severe and the complaint adequately sets forth facts to be able to infer that plaintiff is limited in lifting and reaching as compared to most people in the general population.
- The facts are sufficient for the court to reasonably infer that plaintiff is unable to perform any driver position requiring deliveries. More specifically, he alleged that his physical impairment combined with pain prevented him from performing the driver position. Since he is not able to work as a driver making deliveries, it is reasonable to infer that he would not be able to perform a variety of delivery driver positions and therefore, is substantially limited in his ability to work in the class of jobs or a broad range of jobs.
- The fact that plaintiff believed he could still work and was qualified for several other positions at his employer is not a bar to plaintiff’s claim that he had an actual disability. The ADA does not require a plaintiff to show that he is totally unable to work to be considered substantially limited in any of his major life activities. [The interplay between SSDI and the ADA is something we discussed here].
- Per 29 C.F.R. §1630.2(j)(1)(ii), an impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.
- The Seventh Circuit has not addressed the issue of whether lifting restrictions are substantial limitations under the standards outlined in the amendments to the ADA but they likely are: 1) the amendments make the standard for qualifying as a person with a disability more inclusive; 2) the amendments was passed to ensure that the ADA’s definition of disability with construed in favor of broad coverage; 3) the amendments made the question of whether an individual’s impairment was a disability not one for extensive analysis; 4) the term “substantially limits,” after the amendments is construed broadly in favor of expansive coverage and not meant to be a demanding standard; and 5) the appendix to the EEOC’s amended regulations specifically mention lifting as a major life activity and describes how then such a person could be substantially limited in the major life activity of working; and 6) numerous cases after the amendments to the ADA have held that a lifting restriction may substantially limit a major life activity.
Court’s Reasoning That Plaintiff Sufficiently Alleged That He Was Regarded As Having a Disability
- After the 2008 amendments to the ADA, a plaintiff need not show that the employer regarded the plaintiff as having an impairment that substantially limits one or more life activities with respect to regarded as claims.
- The standard requiring a plaintiff to show that an impairment substantially limits his or her ability to perform a class of jobs or a broad range of jobs in various classes as compared to most people having comparable training, skills, and abilities with respect to the major life activity of working, only applies to the actual disability prong of the ADA. So, plaintiff does not need to claim that the employer believed he had an impairment substantially limiting the major life activity of working in a regarded as claim.
- Despite being told by the plaintiff that he was willing to work at other locations and of his disabilities, the employer terminated his employment two days later. The fact that the employer terminated the plaintiff as soon as it became aware of his restrictions and after requesting accommodations raises a plausible inference that plaintiff was terminated because of a perceived impairment. In fact, the termination notice said that they could not accommodate because his restrictions are permanent. All of that means that plaintiff sufficiently alleged that the employer viewed his physical condition as disqualifying from performing his specific delivery driver job and that the employer regarded him as unable to perform a broad class of jobs by not allowing him to return to work in any job or capacity.
Court’s Reasoning That Plaintiff Sufficiently Alleged a Failure to Accommodate an Actual Disability by Not Even Engaging in a Discussion of Reassignment
- While a person covered only under the regarded as prong is not entitled to a reasonable accommodation, this case involved actual disability claims as well.
- The duty to accommodate the employee with a disability may include reassignment to a vacant position.
- Citing to a case we have discussed previously, here, the ADA mandates an employer reassign a qualified person with a disability to a vacant position.
- As part of an employer’s duty to accommodate by means of job reassignment, an employer is required to identify the full range of alternative positions for which the individual satisfied the employer’s legitimate nondiscriminatory prerequisites. It also must consider transferring the employee to any of these other jobs, including those representing a demotion. In other words, the employer has a duty to assist with identifying open positions as part of the interactive process following an employee’s request for reasonable accommodations.
- The employer here responded to plaintiff’s request for reassignment by telling him that since his restrictions were permanent they were unable to accommodate and terminated him with no further action or communication. Those allegations plausibly reflect that the employer did not communicate with the plaintiff and attempt to ascertain whether he had a position available for what the plaintiff might have been qualified. Accordingly, such conduct may amount to refusal to engage in the interactive process. Plaintiff also made allegations that the employer had to have had a position that he was qualified for due to the nature of its operations and his working relationship with numerous locations of his employer.
- Since the employer did not engage in the interactive process, plaintiff was not required to actually identify in his complaint an open position at his employer. Instead, at this stage it was sufficient for the plaintiff the state that it was plausible that his employer had open positions and had refused to engage in the interactive process so as to deprive him of the opportunity to explore open positions as a reasonable accommodation.
- If discovery reveals no vacant position existed to which plaintiff could have been reassigned to, the employer is free to bring up that fact at summary judgment proceedings. In a footnote, the court notes that whether a vacant position exists is determined at the time the employee requested reassignment to that position.
Plaintiff Did Adequately Request an Accommodation
- A request as straightforward as asking for continued employment is a sufficient request for accommodation.
- The allegations in the complaint are clear that plaintiff made a request for continued employment and sought reassignment to another position.
- For many years now, whenever working is alleged as a major life activity, it essentially becomes an SSDI analysis. This case says that isn’t correct. Here, the focus by the court was on the type of job that the person had and then they extended that across industries. Even so, a plaintiff attorney makes a serious mistake by alleging working as a major life activity due to the broad class of jobs standard interpretation over the years. It also isn’t necessary as a general rule in light of the amendments to the ADA.
- The Seventh and Eighth Circuits are extremely aggressive about employers having the obligation to reassign an individual to a vacant position they are qualified for if they are no longer qualified for their current position.
- For regarded as claims, it is no longer after the amendments to the ADA necessary to show that the employer believed a major life activity was substantially limited. All a plaintiff has to show is that the employer regarded the person as suffering from a mental or physical impairment.
- A person claiming regarded as discrimination is not entitled to reasonable accommodations.
- In the Seventh and Eighth Circuits, the employer has an obligation, especially when asked, to identify open positions as part of the interactive process. In the 11th Circuit, as we discussed here, the rule is quite a bit different.
- A bit strange to me that the termination notice said that because the restrictions were permanent, the employer was unable to accommodate. The permanency of the restrictions should not matter. The question is whether the person can do the essential functions of the job with or without reasonable accommodations. Also, ignoring the reassignment option is a recipe for disaster.
- The case law is very clear that reassignment is an option of last resort.
- Of course, plaintiff will have to get by the summary judgment motion later but for now plaintiff lives for another day.
- Magic words are not required.
- This is not the first case that has said that asking for continued employment is a sufficient request for accommodations.