Here in Atlanta, we have finally moved into fall weather. That means temperatures in the afternoons in the upper 60s and low 70s and temperatures in the evenings and mornings in the 50s. The 20 to 30° range of temperature that Atlanta gets in the winter and in the fall took some getting used to.

Today’s case is Ward v. United States Xpress. It deals with preemployment medical inquiries and retaliation. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

I

Facts

Plaintiff was diagnosed with thyroid cancer around 2012 and 2013. She was recruited by the defendant for employment as an over the road truck driver, and she attended the training orientation at Tunnel Hill, Georgia, during which she filled out a medical history form in which she disclosed she previously had thyroid cancer. A manager allegedly pulled plaintiff aside several times during the training to inquire about her health and ability to work in light of her prior cancer diagnosis. Each time, plaintiff insisted that she was in good health, willing and able to work, and that she was healthy and had been in remission since 2013. After the manager told her she could become sick while driving and become a liability, plaintiff researched the law and returned to the training to inform the manager that it was discriminatory for the company to deny her employment because of her history of cancer. Later that same day, the manager pulled the plaintiff from training to meet with him and the company’s human resources representative, during which they informed her of her removal from the training purportedly due to her driving record. However, plaintiff contended that defendant approved her driving record prior to the training and that her record only contained minor incidents similar to other similarly experienced drivers. Defendant filed a motion to dismiss.

II

Court’s Reasoning

In denying defendant’s motion to dismiss, the Northern District of Alabama reasoned as follows:

1. 42 U.S.C. § 12203(a) prohibits retaliation against an individual because the individual opposed any act or practice made unlawful by the ADA.
2. To make a prima facie case of retaliation, a plaintiff has to show that she: 1) engaged in statutorily protected conduct; 2) suffered an adverse employment action; and 3) there was a causal connection between the protected conduct and the adverse employment action.
3. When it comes to retaliation, it isn’t necessary for a plaintiff to prove that the underlying discriminatory conduct she opposed was actually unlawful, but rather the plaintiff must show a good faith reasonable subjective belief that the employer was engaged in an unlawful employment practice so long as that belief is objectively reasonable in light of the facts and record presented.
4. Plaintiff sufficiently pled engagement in a protected activity and a causal connection to the adverse employment action. In particular: 1) plaintiff alleged that after being pulled out of training, she performed an online search related to employment discrimination and shared the results with the manager by telling him it was discriminatory for her to be denied employment because of her previous history of cancer.
5. Plaintiff’s allegations rise above mere speculation because existing substantive law establishes the reasonableness of her belief the defendant engaged in an unlawful employment practice.
6. With respect to the causal connection, plaintiff has to demonstrate that the decision-makers were aware of the protected conduct and that the protected activity and the adverse actions were not wholly unrelated. One of the ways plaintiffs do that is showing a close temporal proximity between the protected activity and the adverse action.
7. Plaintiff sufficiently alleged facts suggesting a temporal proximity between the protected activity and the adverse action. In particular, after plaintiff informed the manager about her research on discrimination and disability, that same day the manager pulled her aside for a meeting with the human resource representative who informed her that she was no longer a candidate for the truck driving position.
8. While it is possible that plaintiff’s driving record prevented her from being further considered, at the stage of a motion to dismiss, plaintiff’s pleading must be taken as true. Here, plaintiff contended that defendant had approved her driving record before training began, and her record became an issue only after she raised her discrimination concerns.
9. The ADA provides that an employer cannot require a medical examination and cannot make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is job-related and consistent with business necessity. An employer does have the right to make inquiries into the ability of an employee to perform essential functions of the job. The key here is that the manager purportedly pulled the plaintiff aside several times during the training to follow up on her medical questionnaire and inquire about her health. During those conversations, the plaintiff alleged that the manager called her a liability even though she insisted she had no significant chance of relapse and was in good health, willing, and able to do the job.
10. In the 11^th Circuit, a private right of action exists under the ADA for a prohibited medical inquiry in the pre-offer phase of the job application process, irrespective of disability status.
11. A company does not have an unfettered right to make disability inquiries and conduct medical examinations. For example, the withdrawal of a conditional offer after a job applicant revealed a prior back surgery is not acceptable under the ADA because there was no individualized assessment as to applicant’ ability to perform essential functions.
12. Plaintiff alleged: the manager removed her from training multiple times; repeatedly ignored her representation that her cancer was in remission; and that she posed no threat. Further, the manager in the company purportedly ended her training solely based on their own assessment about her abilities without consulting her medical providers to show the job-related and business necessity of the inquiry. Accordingly, plaintiff sufficiently alleged that the defendant made inquiries likely to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.

III

Takeaways

1. We have discussed the pre-employment medical inquiries scheme and what it means to be job-related and consistent with business necessity here.
2. I have read many articles in numerous places saying that there is a tremendous shortage of over the road truck drivers, and especially women drivers. It would seem to me that it would be in the best interest of a truck driving company to adhere closely to the ADA medical inquiries scheme in order to maximize the possibility of bringing on over the road truck drivers in light of the incredible shortage.
3. It is mind-boggling to me why the case didn’t settle prior to the motion to dismiss. I would expect it to settle now. The court’s opinion pretty clearly lets readers know that the defendant is probably in deep trouble here, which wouldn’t surprise readers of this blog.
4. When it comes to retaliation, the key is whether a plaintiff has a good faith reasonable subjective belief that his or her employer is engaged in an unlawful employment practice. Whether that is actually the case as a matter of law doesn’t matter.
5. You don’t have to have a disability to allege a violation of the ADA prohibited medical inquiries scheme.
6. In the 11^th Circuit, a private right of action exists with respect to violations of the prohibited medical inquiries scheme.
7. Always a mistake to terminate a person with a disability without engaging in an individualized analysis of the situation.
8. Always a mistake to not engage in the interactive process with a person with a disability.
9. For the disability related inquiry violation to occur under the ADA, the plaintiff has to show that the inquiry is likely to elicit information about a disability. My position has long been that when it comes to the analysis of whether an inquiry is likely to elicit information about a disability, an employer is well served to have persons with disabilities involved in that determination.
10. Despite what it looks like, this case is not a fear of future disability case, which we discussed here, at all. Rather, it is a record of a disability case.
11. In this blog entry, I discussed the situation where the human resources department did the right thing. I can’t say that here. The principles involved here are well-known to readers of this blog. Human resources should have stepped up to stop this process rather than go along with it. Also, if human resources did not feel comfortable stepping up, human resources should have at least suggested bringing in an ADA knowledgeable attorney. If either would have occurred, chances are very high, assuming the facts are indeed what the plaintiff has alleged, that this situation would have been stopped in its tracks, and the company would have had a competent sorely needed over the road truck driver. The company would have also saved considerable litigation costs.
12. The Internet can be a boon for a person establishing a good faith belief of employer conduct violating the law. For example, it is certainly possible with respect to these facts that the plaintiff could have found her answers allowing her to reach the conclusion she did in Robin Shea’s, Eric Meyer’s, Jon Hyman’s, or even this blog (Robin’s-labor and employment law insider blog- , Eric’s -the employer handbook blog-, and Jon’s- Ohio employer’s law blog- are all in my blog roll. Further, there are other labor and employment law blogs where she could have found her answers in as well).
13. I just don’t understand how these mistakes keep happening. Who is doing the training and how often? Where is ADA knowledgeable legal counsel? Well… y’all know where to find me;-)