Today’s blog entry deals with a case that got quite a bit of publicity from labor and employment attorneys on LinkedIn when it came out. I promised then that I would blog on it. So, here goes. The case of the day is Hopman v. Union Pacific Railroad out of the Western Division of the Eastern District of Arkansas and can be found here. The reason the case made such a splash when it came out is that the case talks about how being free from pain is not a privilege or benefit of employment. However, there is a lot more to this case than just that principle and it bears exploring further. As usual, the case can be divided into categories and they are: how did the case get to the judgment as a matter of law point; court’s reasoning that seeking to work without mental and psychological pain is not a privilege or benefit of employment; court’s reasoning that Union Pacific does not have to grant plaintiff’s accommodation request, use of a service animal, because it would enhance plaintiff’s job performance; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the categories.
How Did the Case Get to the Judgment As a Matter of Law Point
How the case got to the point where the court decided to grant a judgment as a matter of law to Union Pacific is a bit odd and bears going over. The complaint was bare-bones but was based on a reasonable accommodation theory. The reasonable accommodation requested was the use of a service animal so as to allow the plaintiff (a person with post-traumatic stress disorder and traumatic brain injury), to deal with mental and psychological pain. For reasons unknown, at the summary judgment stage, which plaintiff successfully fought off, the plaintiff’s attorney switched the argument away from reasonable accommodation to the theory that a privilege and benefit of employment was involved. It then proceeded to trial and the plaintiff prevailed. Union Pacific filed a judgment as a matter of law.
Court’s Reasoning That Seeking to Work without Mental and Psychological Pain Is Not a Privilege or Benefit of Employment
- Plaintiff did not identify a corresponding benefit or privilege of employment offered to Union Pacific employees.
- No evidence was presented at trial that Union Pacific offers service animals to it non-disabled employees as a benefit and privilege of employment.
- Plaintiff had not demonstrated that Union Pacific provided service animal as a benefit or privilege of employment or any other similarly situated non-disabled employee.
- A remedy is available for a plaintiff who can establish the need for reasonable accommodation to enjoy equal benefits and privileges of employment that are enjoyed by similarly situated employees without disabilities.
- A benefit and privilege of employment case is a different kettle of fish than a reasonable accommodation case.
- Plaintiff admitted that he could both effectively do his job’s essential functions and access Union Pacific’s facilities without his service animal. In fact, plaintiff asserted throughout the case that he could perform the essential functions of his job.
- No authority exists where a court has said that a person with a disability has the right to work without mental or psychological pain. In fact, numerous cases suggest that employees do not have a right to work free from mental or psychological pain.
- Plaintiff did not establish that Union Pacific offered similarly situated non-disabled employees the benefit and privilege of working without mental or psychological pain.
Court’s Reasoning That Union Pacific Did Not Have To Grant Plaintiff’s Accommodation Request, Use of a Service Animal, Because It Would Enhance Plaintiff’s Job Performance.
- At trial, plaintiff asserted that his job performance would be enhanced when he was able to avoid the symptoms of PTSD and traumatic brain injury. The same argument was made at closing. Such an argument might be appropriate for an essential functions reasonable accommodation analysis. However, that argument does not work for a benefits and privileges of employment reasonable accommodation analysis.
- In the context of job performance, the EEOC Enforcement Guidance talks about a reasonable accommodation as one that enables the individual to perform the essential functions of the position.
- The EEOC Interpretive Guidance for title I of the ADA talks about equal employment opportunity meaning an opportunity to attain the same level of performance, or to enjoy the same level of benefits and privileges of employment as are available to the average similarly situated employee without a disability.
- The Eighth Circuit has held that accommodations are not reasonable unless they help the employee in performing the duties of his or her particular job.
- The Eastern District of Michigan have said that the plaintiff has the burden of establishing by a preponderance of the evidence that having the service dog by his side in all aspects of his job would have enabled him to perform the essential functions of that job. In other words, the plaintiff in that case did not establish that his service dog helped him perform the essential functions of his job.
- Plaintiff’s service animal trainer testimony that plaintiff’s service dog was trained to assist the plaintiff with getting on a plane, going to an amusement park, going out to dinner, and attending cheer competitions made the plaintiff a better person 100% of the time does not establish a claim to a benefit and privilege of employment that plaintiff identified.
- EEOC Interpretive Guidance hypotheticals addressed request for accommodations needed to perform the essential functions of the job, but do not provide guidance regarding equal access to employer-sponsored benefits and privileges of employment. Further, nothing in those hypotheticals suggest that freedom from mental and emotional pain constitute such a benefit or privilege.
- Plaintiff has filed a notice with the district court of intent to appeal to the Eighth Circuit.
- Strategic decisions as a case goes along can profoundly influence the shape of the case. It is very unclear to me as to why plaintiff’s attorney shifted the argument away from reasonable accommodation to privileges and benefits of employment at the summary judgment stage.
- This case is terribly problematic for people with service dogs. The question is whether the disability is the one that is being accommodated or whether it is the essential functions of the job that is being accommodated. It is interesting that the district court cites Felix because that case stands for the proposition, as we discussed here, that it is the disability that gets accommodated and not the essential functions. This distinction matters, especially so in service animal cases. For example, it may be relatively straightforward to show that a service animal is accommodating a person’s disability, but it may be much harder to show that a service animal is a accommodating a particular essential functions of the job.
- If you are on the defense side, you certainly want to argue that any service animal has to relate to enabling that person to perform the essential functions of his or her job. On the plaintiff side, you want to argue that the service animal is accommodating the disability and it is those accommodations that enable the person with the disability to perform the essential functions of his or her job. On this question, expert testimony may be necessary. As a matter of preventive law, the better approach is to relate the service animal to accommodating the disability and not to the essential functions of the job.
- It makes sense to me that an equal benefit and privileges of employment case is going to turn upon how non-disabled employees have an opportunity to enjoy those equal benefit and privileges of employment. On the other hand, a reasonable accommodation case is focused on the individual person with a disability and does not get into the comparative analysis. The equal benefit and privileges of employment case is going to be a harder case on the plaintiff side than the reasonable accommodation case because of that comparative analysis.
- I realize that this case is ostensibly about the ability to be free from psychological pain or mental distress, but I don’t think this case is about that at all. This case is about strategic decisions made with respect to a person with a disability having a service animal. The case is also about whether the accommodation must relate to the essential functions of the job or to the disability itself.
- In disability discrimination cases especially, bare-bones complaints are not recommended. The better approach is a hybrid one where a plaintiff gives the defendant enough facts so that it is clear just what claims are being alleged. While fact-based pleading isn’t required, more is better.
- The court talks about enhanced performance of the person with the disability, but that isn’t the question. The question is whether the accommodation gets the person with the disability to the same starting line as the person without a disability.
- One thing strange about this case is that typically a service animal would always be by a person’s side when the animal is accommodating post-traumatic stress disorder or traumatic brain injury, but that doesn’t seem to be the case here. That said, depending on the disability it is entirely possible that you could have a service dog that is not always by the person with a disability side. For example, in the Deaf/deaf community it is not unusual at all for hearing dogs to be strictly home-based, mine certainly is.
- Remember, that the EEOC regulations (title I), have nothing dealing with service animals. However, the DOJ (titles II-III), certainly does have such regulations. It would be a mistake to apply the principles of this case to a non-employment situation because of the differences in those regulations.