Today’s case is a case out of the Sixth Circuit, Ferrari v. Ford Motor Company, decided June 23, 2016. It deals with the issue of what happens when an employer perceives an opioid addiction. As is typical, my blog entry is divided into categories: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts:

Ford Motor Company hired Ferrari in 1996, and he initially worked in assembly. He is still employed by Ford. In 2000, he suffered a neck injury at work, placing him on medical leave from June 2001 to April 2003. After Ferrari returned from medical leave, Ford accommodated his restrictions for the next nine years by placing him in various light work positions with the last of those placements being in the human resources office. On November 21, 2012, while Ferrari was still on medical leave, his pain management doctor agreed to remove his work restrictions. Until that point, Ferrari’s restrictions had been classified as permanent. In December, he returned from FMLA leave and testified that he was feeling better and wanted to get back to work. Ferrari was also hopeful that he would soon be able to leave the human resources office as his pain management doctor had removed his restrictions and he had heard a rumor that he might be called to apprentice in the trades. On December 3 of 2012, one of Ford’s company doctors conducted a physical to determine whether Ferrari could return from medical leave. She cleared Ferrari to return from psychiatric medical leave. Ferrari also asked her to lift the restriction tied to his neck injury. According to her notes, Ferrari told her that he requested the restrictions be lifted by his pain management doctor when an opportunity arose for him to go into the skilled trades. She decided to maintain his restrictions pending further testing and review. In her notes, she expressed the need to ascertain why the restrictions were suddenly removed, especially since the pain management doctor most recent progress notes found that he was disabled and had an ongoing need for narcotic medications. With regards to her concern about opioids, her notes indicated that on December 21, 2005, another doctor had found that Ferrari was addicted to narcotics and determined that he could not return to his employment at Ford while he was on the narcotics. Ferrari testified that on December 17, 2012, a union representative advised him about an opening in the skilled trade apprenticeships and refrigeration management at the plant. The collective bargaining agreement provided that any apprenticeship goes to the person highest on the waitlist so long as he or she is deemed qualified. His position on the waitlist guaranteed him one of the two apprenticeships if he passed a pre-apprenticeship physical. Ferrari’s pre-apprenticeship physical was scheduled for January 16 of 2013 with Dr. Brewer. In advance of their physical, the plaintiff obtained clearances from two other doctors as well as a clearance from a functional capacity evaluator. While all of them concluded that his neck injury no longer required physical restrictions, none of them addressed his opioid use. One of his doctors entry indicated that he was still actively using opioids, but did not address whether the opioids would affect his performance on the job. The physical went ahead as scheduled on January 16. In her notes, Dr. Brewer observed that his pain management doctor had not responded to her inquiry as to what changed to warrant dropping all restrictions after nine years, and she also noted that his medical records indicated he was still using opioids. On February 7, 2013, Dr. Brewer sent a letter to his pain management doctor in which she provided the job description of the apprenticeship and inquired about whether plaintiff could safely execute the tasks required while taking opioids. According to the job description, an employee must climb 30-50 foot ladders and open and close large overhead valves. They must also work at heights on overhead catwalks and mobile elevated work platforms. In the pain management doctor’s reply, he said that his patient was not addicted to opioids, but it would take 3 to 4 months to wean him off the opioids and that the opioids did not affect his physical performance, mental clarity, or cognitive functioning. His pain management doctor concluded that plaintiff was safely able to perform all functions listed in the job description. Dr. Brewer also scheduled an independent medical examination with another doctor, which both parties acknowledged as binding. The report of that doctor acknowledged that the plaintiff claimed to have been off opioids for three months, but that his claim was not substantiated by his medical records because as of January 7, 2013 he had reported that he was still on opioids. Accordingly, the independent doctor concluded that if he was still on opioids as the medical records indicated, he would not allow Ferrari to resume unrestricted employment because the use of opioids may affect his performance. In light of all this, Dr. Brewer removed two of Ferrari’s four restrictions. However, she maintained the ladder climbing and overhead work restrictions until he was taken off the prescribed opioids which, according to his pain management doctor, would take approximately 3-4 months. She also noted that the plaintiff would be re-assessed in 3-4 months to monitor the progress of weaning him off the opioids and if the process was successful and documented, the remaining restrictions would be removed.

The apprenticeship supervisor reviewed plaintiff’s two restriction to determine whether he could participate in the program. He concluded that the restriction precluded him from participating in the program because having the ability to work overhead and climb ladders on a daily basis were essential to performing the job. While it was possible that he could theoretically and occasionally stay on the ground while a supervising journeyman climbed the ladder, the apprenticeship supervisor said that the climbing of the ladder was essential to learning the task to be performed at the top of the ladder – whether it be checking fluid levels, bending fluids, mixing chemicals, monitoring or repairing HVAC equipment, opening or closing a multitude of valves, sometimes on an emergency basis to prevent an explosion, or the like. The supervisor for the apprenticeship supervisor also signed off on the decision. After the decision was made that he could not participate in the apprenticeship program, he was placed on temporary bypass and another candidate filled the opening. He was then placed in a machining associate position that met his restrictions. In September 2013, Ferrari notified the joint apprenticeship committee that his restrictions had expired and that he was first on the waitlist for an apprenticeship. He brought suit under the ADA, the Michigan disability discrimination law, and the Family and Medical Leave Act.

 

II

Court’s Reasoning

In affirming the grant of summary judgment for the employer on the ADA claims, the court reasoned as follows:

1. To recover on a claim for discrimination under the ADA a plaintiff must show: 1) he is a person with a disability; 2) he is otherwise qualified; and 3) he suffered an adverse employment action because of his or her disability.
2. Proving up a claim can be done either by direct evidence or indirect evidence.
3. With respect to direct evidence, the court said that the plaintiff bears the burden of establishing that he or she is a person with a disability and otherwise qualified for the position despite his or her disability: 1) without accommodation from the employer; 2) with an alleged essential job requirements eliminated; or 3) with the proposed reasonable accommodation. Once the plaintiff has established these elements, the employer bears the burden of proving that a challenged job criterion is essential or that a proposed accommodation will impose an undue hardship upon the employer.

I must confess that this statement of direct evidence has me befuddled because an employer is not required to eliminate an essential job requirement.

4. With respect to the indirect method, establishing a claim for disability discrimination involves a plaintiff showing: 1) he is a person with a disability; 2) he is otherwise qualified for the position; 3) he suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff’s disability; and 5) the position remained open while the employer sought other applicants or the person with a disability was replaced. Once the plaintiff establishes those elements, the burden then shifts to the defendant to offer legitimate explanation for its actions. If the defendant does so, the burden then shifts back to the plaintiff, who must introduce evidence showing that the offered explanation is pretextual.

Interesting use of the term, “otherwise qualified.” “Otherwise qualified,” is a term you see in the Rehabilitation Act and no longer in the ADA as a result of the amendments to the ADA. Even so, as a substantive matter, there is no difference between the term “qualified,” and the term “otherwise qualified,” with respect to their meaning.

5. When an employer acknowledges that it relied upon a person’s disability in making its employment decision, the burden shifting approach is unnecessary because the issue of the employer’s intent has been admitted by the defendant and the plaintiff has direct evidence of discrimination on the basis of his or her disability.
6. Relying on two cases dealing with regarded as that were decided prior to the amendments to the ADA, the court said that Ferrari did not specify which major life activity he believed was limited by his opioid use, and that it would seem that he was arguing that Ford mistakenly believed his opioid use substantially limited him in the major life activity of working. Since he was not prohibited from performing a broad class of jobs, he was not substantially limited in the major life activity of working and therefore, the direct evidence approach was not going to work for Ferrari.

With respect to paragraph § II6, I don’t get it. That is, the amendments to the ADA completely changed the analysis with respect to regarded as claims. Thanks to the amendments, all a person has to show is that the employer regarded him or her as having a physical or mental impairment. It is no longer necessary as it was under Sutton v. United Airlines to show that the employer also regarded him or her as being substantially limited in a major life activity. Further, the adverse actions occurred after the amendments went into effect.

I was so taken aback by this particular reasoning, that I investigated where this might have come from. Could it have been something raised in the lower court or in the appellate arguments? When I checked the lower court opinion, the lower court said that a regarded as claim was out because the disability was transitory. That is, he was weaning off the opioid addiction within 3 to 4 months, which is less than the six months under the ADA. Interestingly enough, the lower court did not address whether the disability that was being regarded was both transitory AND minor; it has to be both for that exception to apply per 29 C.F.R. 1630.15(f).

I then listened to the oral argument to figure out whether this particular reasoning came from the oral argument. It did not come from there either. At the oral argument, the plaintiff argued that: issues of fact were present so that summary judgment was not proper; no direct threat analysis was done; and the neck injury argument was a pretext. The defense argued that: the the job was inherently risky and was in the most dangerous part of the plant; he was still employed and was at the top of the list for any openings; opioid use and not the neck injury was the key and the complaint was structured in a way that focused on the opioid use; mixed motive did not apply and the but for standard was the applicable causation rule; even if mixed motive applied, there was no pretext; and Ferrari constituted a direct threat. On rebuttal, Ferrari’s attorney argued that: the direct threat factors were never addressed; pretext existed; and Ferrari asked for a drug test but was denied.

So, I am not sure where the reasoning described in 6 of this section came from. It does not seem to square with the explicit terms of the ADA as amended.

7. With respect to the indirect method, Ferrari’s restrictions and the medical condition underlying them were a legitimate, nondiscriminatory explanation for Ford’s adverse employment decision.
8. Under the law in the Sixth Circuit, pretext can be shown in any of three different ways: 1) the offered reasons had no basis in fact; 2) the offered reason did not actually motivate the employer’s action; or 3) the offered reasons were insufficient to motivate the employer’s action.
9. In the Sixth Circuit, there exists an honest belief rule with regards to pretext, which says that so long as the employer honestly believes the reason it gave for the employment action, an employee is not able to establish pretext even if the employer’s reason is ultimately found to be mistaken. Proving that the nondiscriminatory basis for the employment action is honestly held, means that the employer has to be able to establish reasonable reliance on the particular ice facts that were before it at the time the decision was made. Once the employer shows that it made a reasonably informed and considered decision before taking the adverse action, the employee has the opportunity to produce proof to the contrary.
10. The plaintiff failed to present evidence creating a dispute of material fact as to whether the decision-makers honestly believe that his restrictions reflected a reasonable medical judgment. Ford Motor’s position evaluation of his opioid use was thorough. She conducted two examinations of him, reviewed his medical history, obtained his most up-to-date medical records, ordered new tests, ordered an independent medical exam to resolve discrepancies in his medical records, and revises restrictions based on this new information.

 

III

Takeaways

1. I do not know if this case will be appealed, but with respect to the direct evidence part of the decision, particularly with respect to § II6 of this blog entry, it would seem that the grounds for appeal are there as regarded as under the amendments to the ADA works in quite a different way than what was described in this opinion. That is, the way one would expect it to work in light of the amendments would be as followed: 1) plaintiff has or is regarded as having a disability within the meaning of the ADA; 2) plaintiff is qualified/otherwise qualified; and 3) plaintiff suffered an adverse employment action on the basis of [her] disability or perceived disability. See Brown v. Northrop Grumman Corporation, 2014 U.S. Dist. LEXIS 116188 (E.D. NY August 19, 2014). So, under these facts, plaintiff could clearly show that he was regarded as having a physical or mental impairment (opioid use), and so we get to the second part of the case. On the matter of being qualified/otherwise qualified, the plaintiff is going to have a harder time because when it comes to regarded as, under the amendments to the ADA, a person is not entitled to reasonable accommodations (a point that for some reason did not come up in the opinion). Also, with respect to otherwise qualified, the direct threat defense may come up as well. That is, the plaintiff may have a hard time showing that the employer did not reasonably find a direct threat existed, though at appellate argument, the plaintiff argued that Ford did not walk through the direct threat factors as it would apply to Ferrari (question of fact perhaps with respect to direct threat?). Finally, it should not be a problem for the plaintiff showing an adverse employment action on the basis of disability.
2. In short, it is absolutely possible that on appeal the plaintiff still loses despite the court correcting II6. Even so, the disparity between the court’s reasoning and what the ADA as amended actually says is disconcerting.
3. The current user exception regarding drug use does not apply as illegal drugs are not involved here.
4. With respect to regarded as, if the employer says on appeal that the exception applies, can it show the perceived disability was transitory and minor?
5. The plaintiff here is currently an employee with Ford. I am seeing more and more cases where a current employee is suing his or her employee for disability discrimination. On the employment side, keeping an employee on, despite how uncomfortable it might be, might actually help with respect to prevailing in a lawsuit.