It has been awhile, almost 3 years, since I visited the issue of bad conduct v. having a disability. This particular case explores what happens when the side effects of medication leads to bad conduct and the person is terminated. The case is Capporicci v. Chipotle Mexican Grill, Inc., 2016 U.S. Dist. LEXIS 69934 (M.D. Fla. May 27, 2016). As is usual, the blog entry is divided into categories: facts; issue presented; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.
Plaintiff has a long history of treatment for bipolar disorder. Before taking the medication to treat her condition, she experienced depression and mania. She does not suffer from the extreme highs and lows when she is on the medication, but she continues to experience panic attacks. In April 2013, plaintiff informed the manager at the South Tampa location that she was taking medication for her bipolar disorder. She did not explain which medication she took, did not detail any side effects, and did not mention that the medication could cause something negative to happen at work. The manager’s reaction was neutral and he did not ask any questions. On May 30, 2013, plaintiff reported to Sandra Weeks, an advanced registered nurse practitioner treating her bipolar disorder, that she was crying at work, having panic attacks, and that she had to be taken off shifts. As a result, nurse Weeks discontinued one of plaintiff’s medication and started plaintiff on Saphris, a new medication. That same day, nurse Weeks faxed the letter to the manager requesting FMLA leave. Plaintiff testified that when the manager received the fax, he pulled it out of the printer, laughed, and threw it away without reading it. The plaintiff then told the manager that she was having some anxiety and would like to take some time off. During the time off work between May 30, 2013, and June 3, 2013, plaintiff started taking the new medication. The medication made her feel a little tired and knocked her out at night. She returned to work on June 4, 2013.
She was fired four days later. That day, she took the medication in the morning because her provider told her to start taking the medication twice a day. She clocked in for her shift at 11:50 AM. Approximately 30 minutes into her shift, she began to feel dizzy and disoriented. She was very slow, messed up orders, and was incoherent. When her coworkers asked her what was wrong, she told him that she was on a new medication and that it was messing with her at the moment. The manager noticed plaintiff’s condition and took her off the serving line. When the plaintiff tried to explain what was going on, the manager said that it was fine, to go home, and get some rest. No further discussions were held. The manager described the final incident as follows:
“The final incident was the employee arriving late to work and appeared to be under the influence of some kind of medication. I had face to face talks with her regarding performance previously, but with a zero tolerance for inebriation of any kind there had been no prior incident.
It came to my attention during peak hour when she attempted to roll a burrito and basically flipped it upside down releasing the contents into a foil, she then placed the foil and tortilla (still upside down) into a bowl and slid it to the expeditor. I calmly sent her home since making a scene in front of a peak hour line of customers would have been a terrible idea. I then called and terminated her later in the afternoon.”
When the plaintiff got home, the manager called and said she was fired due to being intoxicated. During the phone call plaintiff told the manager she was on medication and that she believed her behavior was the side effect of the medication. Although the manager listened and seemed to want to offer her a second chance, he called back 10 minutes later saying that it looked like she was on some %$^%$%^$#, so she was fired and she was not rehirable.
Chipotle’s employee handbook has a drug and alcohol policy that provides as follows:
“No employee shall report to work or be at work under the influence of alcohol, drugs, or controlled substances, or with any detectable amount of alcohol, drugs, or controlled substances in his or her system.
Employees who must use medically prescribed or over-the-counter drugs that may adversely affect their ability to perform work in a safe manner must notify their Manager prior to starting work. The Manager will decide if the employee can remain at work and/or if work restrictions are necessary. The employee may be required to take a medical leave of absence or disability leave for the duration of the medication.”
She filed with the EEOC, and the EEOC found reasonable cause to believe that disability discrimination occurred and issued a notice of right to sue. She sued alleging both FMLA and ADA violations, though we are only concerned with the ADA violations.
May an employer discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability?
In holding that the employer may discipline or terminate an employee for workplace misconduct even when the misconduct is a result of the disability, the court reasoned as follows:
- Establishing a prima facie case mean showing that at the time of the adverse action: 1) the plaintiff had a disability; 2) the plaintiff was a qualified individual; and 3) the employer unlawfully discriminated against her because of the disability.
- The McDonnell Douglas burden shifting scheme is applicable.
- Since the relevant event took place after the ADA amendments act, the amendments are what governs the case.
- 29 C.F.R. § 1630.2(j)(4)(ii), specifically states that the negative side effects of medication may be considered in deciding whether a person has a disability.
- 29 C.F.R. § 1630.2 (j)(3)(iii) specifically provides that it should be easily concluded that bipolar disorder will at a minimum substantially limit brain function.
- As a result of the amendment to the ADA, the relevant inquiry is whether plaintiff’s bipolar disorder is substantially limiting when she is not taking medication and she presented evidence that that was indeed the case.
- The majority of courts, including the 11th Circuit, hold that an employer may discipline a terminated employee for workplace misconduct even when the misconduct is a result of the disability.
- In Raytheon Company v. Hernandez, U.S. Supreme Court, in an Age Discrimination in Employment Act case, said that a sufficiently nondiscriminatory reason exists where an applicant is denied employment based upon a neutral, generally applicable work policy.
- The Chipotle policy is neutral and generally applicable and therefore satisfies the Raytheon
- Where an employer relies on the violation of a work rule, a plaintiff may show pretext by submitting evidence demonstrating: 1) that she did not violate the cited work rule; or 2) that if she did violate the rule, other employees outside the protected class, engaged in similar acts, were not similarly treated. In this case, the plaintiff made cursory arguments without legal support. Further, even a ham-handed investigation standing alone is insufficient to show pretext. Finally, the manager concluded that plaintiff was under the influence of some kind of medication and therefore in violation of company policy, which prohibited any employee from reporting to work or being at work under the influence of alcohol, drug, or controlled substances. Plaintiff did not dispute that she was indeed under the influence of drugs, even if they were prescription drugs.
- Plaintiff did not argue that the manager misapplied or misinterpreted the company’s drug and alcohol policy. In fact, the policy specifically stated that when an employee must use medically prescribed or over-the-counter drugs that adversely affect her ability to perform work in a safe manner, it is the responsibility of the employee to notify the manager prior to starting work. Such notification then triggers the manager’s duty to order work restrictions or a leave of absence. The plaintiff did not allege that she advised the manager about her use of the medication prior to starting work.
- Plaintiff neither alleged a failure to accommodate claim nor a disparate impact claim and so those claims were not before the court.
- Plaintiff did not contend that the company’s policy lacked legitimate, job-related goals, such as promoting employee safety and minimizing potential liability.
- Plaintiff made no effort to demonstrate that the policy was applied more leniently to non-disabled employees and she made no claim that non-disabled employees were treated more favorably as a general rule. In fact, plaintiff said that she was being watched carefully for promotion shortly before her termination.
- While the manager may have been rude, plaintiff agreed that the manager allowed her to take all of the leave she requested. Accordingly, rude treatment, by itself, does not support an inference of discriminatory intentions.
- The causation cited by the court, “because of,” is not correct. That standard is the one that was used prior to the amendments to the ADA. As we know, Title I of the ADA, uses the term “on the basis of,” and a strong argument can be made, as we did in this blog entry, that “on the basis of,” and “because of,” are not the same thing.
- Labor and Employment attorneys will tell you over and over again that the evenhanded application of neutral, generally applicable policies are critical and this case proves the point. If such is present, then you are in a strong position to deal with taking action against a person with a disability who is acting out because of that disability or medication they are taking to treat that disability.
- The court notes that the EEOC’s enforcement guidance provides that an employer may only discipline an employee for disability- related conduct if the conduct rule eight job-related and consistent with business necessity and other employees are held to the same standard. Such a view is enforcement guidance only and therefore, is not going to get Chevron Whether it gets the deference entitled to agency interpretation of regulations is also unknown (the court did not address that issue). On this point, you may want to take a look at this blog entry.
- There is a Circuit court split on the issue presented in this case and so it might wind up before the United States Supreme Court. Considering the current makeup of the court, I won’t dare hazard a guess as to whether they would even take the case let alone how they would decide it. A lot may depend, or not, on the results of the upcoming presidential election.
- On the employee side, if the employee begins to take medication to deal with a disability and anticipates or does suffer from side effects that cause problems, it may make sense to notify the employer as soon as possible as to what might happen or is happening. Since the negative side effects of medications can be factored into the equation of whether a person has a disability, such a notification would trigger the interactive process. Also, keep in mind, that mitigating measures, with the exception of glasses, are no longer factored into whether the person has a disability.
- Probable cause findings at the EEOC are very hard to get. This case stands for the proposition that even in the face of such a finding, the defendant still has a shot at winning.
- Don’t forget about failure to accommodate claims when pleading a cause of action on behalf of a plaintiff.
- Raytheon is an ADEA case and that statute does use “because of,” when it comes to causation. However, the ADA does not contain that language. Accordingly, it isn’t clear just how persuasive that particular case is with respect to an ADA matter where the occurrence occurred after the amendments to the ADA.