Today’s blog entry considers the question what happens when you have an individual with a disability seeking to perform a job that the person can do but in order to do that particular job they also have to be simultaneously eligible to do a different job which they may or may not be able to do. Being simultaneously eligible for a prior job in order to do a different job, is what called a nested position. The case of the day is Newton v. Pennsylvania State police decided in an unpublished opinion on January 9, 2024, by the Third Circuit, here. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that a jury has to decide first whether a position was nested, and if so, whether the individual could then perform the essential functions of the job for both positions simultaneously; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

After being forced to resign from his position as a Pennsylvania State Trooper once he was eligible for retirement, Robert Newton added a claim for wrongful termination to a pre-existing discrimination lawsuit that he had brought against his former employer, the Pennsylvania State Police. That additional claim for disability discrimination under § 504 of the Rehabilitation Act as codified, see 29 U.S.C. § 794, was the only count on which he succeeded at trial in the District Court, which had subject-matter jurisdiction over his claims. See 28 U.S.C. § 1331. Still, Newton won big. A jury awarded him $100,000 in compensatory damages, and the Magistrate Judge who presided over the trial by consent of the parties, see id. § 636(c), imposed the equitable remedies of back pay, front pay, prejudgment interest, and lost benefits. Only his claim for §504 wrongful termination and a §504 failure to promote claim survived to trial.

After experiencing pain in his left arm and shoulder, Newton was subsequently diagnosed with stage IV metastatic osteosarcoma, a type of bone cancer. He then went to chemotherapy for 13 months and also had surgery. While the surgery was successful in removing the cancer, left him with permanent limited use of his left arm and shoulder.

Under the collective bargaining agreement, Newton was given a permanent limited duty employee with a nonwork related disability as such, he would not guaranteed entitlement of continuing limited duty beyond the date after he reached 25 years of credible service

Even with his physical limitations, he could perform tasks for the state police when he came back initially he assisted the procurement and supply officer in ensuring that the troop had needed supplies and equipment. That position was a specialized position open only to troopers serving in a patrol function for at least three years and who had qualifications beyond those required of patrol troopers when the trooper holding that position for troop be retired in August 2003, Newton replaced him. He then held that position at the Butler barracks and until his forced retirement when he reached 25 years of credible service in September of 2020.

The state police challenged the liability finding by attacking the jury instruction on whether Newton was qualified for his position because the position was nested.

II

Court’s Reasoning That a Jury Has to Decide First Whether a Position Is Nested. If the Position is Nested, the Jury Has To Consider Whether the Individual Was Otherwise Qualified for Both Positions Simultaneously.

1. In order for a person with a disability to be protected under §504, the person has to be otherwise qualified. That means having both a disability as the term is defined and being able to perform the essential functions of the job with or without reasonable accommodations.
2. In determining whether a person is a qualified individual under the ADA, the EEOC says the first step is to figure out whether the plaintiff satisfies the prerequisites for the position.
3. The second step involves assessing whether the plaintiff had the ability to perform the essential functions of the job with or without reasonable accommodation.
4. When you have a situation where eligibility for one position depends upon holding another position, those two steps have to be applied to both positions. Accordingly, the magistrate erred by not allowing a jury instruction inquiring whether to hold the position he was in, he also had to meet the qualifications of a separate position as well.
5. Whether the procurement and supply officer position was a nested position was a question for the jury. The jury instruction should have further addressed Newton’s ability to hold any identified position under the two-step inquiry for the otherwise qualified element once the jury decided whether the position was nested. In other words, the jury should have been instructed to determine first whether Newton was qualified for any required position (trooper, procurement supply officer, or both), and second whether Newton could perform the essential functions of any such position(s) with or without reasonable accommodations. By not accounting for the potential nested nature of the trooper procurement supply officer position, the jury instructions were inadequate as a matter of law.
6. In a footnote, the court said that if the nested nature of the trooper procurement supply officer position is not disputed on remand, then it would be necessary to instruct the jury to determine first whether Newton met the qualifications for being a trooper AND a procurement supply officer and second, whether he could perform the essential functions of both positions with or without reasonable accommodations.
7. In another footnote, the court noted that one judge, the chief Judge, would affirm the judgment because the jury instructions were legally adequate and there was sufficient evidence for the jury to conclude that Newton was a qualified individual able to perform with or without reasonable accommodations, the essential functions of the job of a trooper assigned to the position of procurement and supply officer. In particular, the Chief Judge’s view was that the applicable job description expressly contemplated that Newton could still perform the essential functions of a procurement and supply officer with medical limitations and that for the majority to discuss the trooper and the procurement and supply officer position as standalone positions contradicted the job description and unnecessarily complicated and inherently fact-based analysis.

III

Thoughts/Takeaways

1. I don’t recall blogging on a nested position situation before, which is why I thought a blog entry was deserved.
2. This case was not an ADA case at all, but rather a §504 case. However, the ADA and the Rehabilitation Act are so similar that with rare exceptions, they get interpreted in the same way.
3. “Otherwise qualified,” and “qualified,” (ADA and Rehabilitation Act respectively), mean the exact same thing.
4. This case if its reasoning spreads to other courts, could have a big impact on people who wind up in light duty after becoming a person with a disability or aggravating an existing disability.
5. Whether a position is nested, is a jury question.
6. Jury instructions matter. My experience is that jury instructions when it comes to ADA matters may not be as precise as they can be.
7. One of the footnotes, gives a roadmap to the plaintiff attorney on how that attorney might approach things on remand. That particular judge, the chief judge, believed that the job description of a procurement and supply officer was sufficient to show that a plaintiff could perform the essential functions of the job with or without reasonable accommodations even with medical limitations.
8. A question to my mind is whether this reasoning shoots down reassignment as a reasonable accommodation when a person can no longer do the essential functions of the job with or without reasonable accommodation that they currently hold. The ADA makes it quite clear that reassignment to a vacant position as a last resort, is a reasonable accommodation if the person can no longer do the essential functions of the position they are currently in with or without reasonable accommodations. We have discussed reassignment previously in the blog, such as here for example.