The ADA turned 35 this weekend. HAPPY ANNIVERSARY!!!!!!!!!!!!!!!!!!!!!!!

 

This week’s blog entry is a two-for-one. In the first case, we discuss a case, Meza v. Union Pacific Railroad Company, here, decided by the Eighth Circuit on July 25, 2025. In this case, the Eighth Circuit discusses the regarded as prong of the ADA with a clarity I rarely see. It doesn’t move the needle with respect to existing principles, but the clarity with it presents those principles is something that I do not often see. In the second case, Scheer v. Sister of Charity of Leavenworth Health System, Inc., here, we discuss a case with far broader implications than just the facts presented in that case. This particular case builds on the Muldrow decision with respect to what is an adverse action. As usual, the blog entry is divided into categories and they are: Meza facts; Meza court’s reasoning that plaintiff had established genuine issues of material facts with respect to whether he had been regarded as having a disability; Meza thoughts/takeaways; Scheer facts; Scheer court’s reasoning that plaintiff had established genuine issue of material facts with respect to whether she had been subject to an adverse action by referral to an EAP; and Scheer takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Meza Facts

 

Meza had worked for Union Pacific for over twenty years when he had a serious non-job-related motorcycle accident. It required him to spend several days in the hospital recovering from a brain hemorrhage. Fortunately for him, his treating physicians thought his brain injury would not have lasting effects. One, a radiologist, determined from an MRI that “no specific or acute intracranial abnormality” existed and only “a small amount of fluid in the left mastoid air cells” remained. From there, his neurologist cleared him to return to his regular work and life activities. In his view, Meza had made a “full recovery,” at least with respect to his “dizziness, vertigo, and skull fracture.”

 

Union Pacific was not as sure Meza was ready to return. Its medical examiner feared that his brain injury could cause unpredictable seizures—a conclusion consistent with medical guidelines from the Federal Motor Carrier Safety Administration. Presumably concerned about the danger of an on-the-job seizure with heavy machinery around, the examiner recommended restricting Meza’s work activities for five years. Unfortunately, the restrictions ruled out a return to his old position, which left him searching for another job in the meantime.

 

Meza sued for discrimination and lost on summary judgment. Meza appealed.

 

II

Meza Court’s Reasoning That Plaintiff Had Established Genuine Issues of Material Facts with Respect to Whether He Had Been Regarded As Having A Disability

 

  1. Unlike suits based on a present physical or mental impairment, regarded as claims per 42 U.S.C. §12102(3)(A), do not require an employee’s perceived disability to place a limit on a major life activity.
  2. Plaintiff’s arguments (Union Pacific’s stated reason for sidelining the plaintiff-the possibility he would suffer seizures following a traumatic brain injury-was all but an admission by the company that it kept him out of work because it regarded him as disabled; and a belief is enough for a regarded as claim), both hold up.
  3. The report from Union Pacific’s medical examiner supports plaintiff’s argument. One part of that report discusses a chemical alteration and injury to plaintiff’s brain that would result in an ongoing unacceptably increased risk of procedures and other neurological events. As such, a reasonable jury could interpret that as creating a perception among Union Pacific’s decision-makers that plaintiff’s brain had become impaired.
  4. It doesn’t matter whether plaintiff’s brain was truly impaired. What is important is that based upon the report, Union Pacific may have thought it was and acted on its belief by imposing work restrictions.
  5. Through Union Pacific’s impact on the terms, condition, or privileges of plaintiff’s employment, a jury could find that Union Pacific violated the ADA.
  6. A genuine issue of material fact exists about whether the chemical alteration the examiner identified was itself in impairment, even if it would only be clear to others if plaintiff began having seizures.
  7. The situation of plaintiff is analogous to a person with epilepsy. No one doubts that epilepsy is a disability, so why would plaintiff’s condition be any different. Union Pacific at this stage of the litigation has no answer for that.
  8. It is possible that the court below could grant summary judgment on another ground it did not previously reach. Open questions that remain include but are not necessarily limited to: whether plaintiff was qualified per the ADA for the job after his motorcycle accident; and whether his injury resulted in a direct threat to the health or safety of others in the workplace.

 

III

Meza Thoughts/Takeaways

 

  1. This case to my mind, does not break any new ground. What it does do is talk about regarded as with a clarity that I rarely see.
  2. For a regarded as claim, belief is enough.
  3. One of the issues remaining on remand is the issue of direct threat, which we have discussed numerous times before, such as here. Direct threat is a high bar as it requires an individualized analysis and must be based upon the best/current objective medical evidence. With respect to direct threat, the two cases you want to look at our School Board of Nassau County, Florida v. Arline, and Chevron v. Echazabal, here and here. You can also find many Understanding the ADA blog entries discussing both of these cases and the concept of direct threat by using the blog search engine.
  4. It is a bit ominous for the plaintiff that the court cite to Stanley, which we discussed here, with respect to whether the plaintiff is qualified per the ADA.
  5. While the court just mentioned direct threat to others, in the employment context, direct threat apply to self or others per Chevron v. Echazabal.
  6. When it comes to the ADA, an individualized analysis is always required.

 

IV

Scheer Facts

 

From 2014 to 2019, plaintiff was employed as a representative and physician billing department. Her job performance was inconsistent. Within the first four years of her employment, she was issued seven corrective actions based on her failure to productivity targets. She was also counsel for professional and behavioral issues. Eventually, her supervisors recommended placing her on a performance improvement plan aimed at increasing her consistency at work.

 

One day before the performance improvement plan was drafted, plaintiff expressed to a coworker, her supervisor, and her department manager that she was struggling with personal issues. All three reported concern for plaintiff’s mental well-being and safety, and one of them even mentioned talks of suicide. Accordingly, the PIP would suggested to address those behavioral concerns by imposing an action plan consisting of a mandatory referral to the employee assistance program for counseling.

 

While the plaintiff, signed the performance improvement plan, she refused, after consulting with an attorney, to consent to the mandatory EAP referral. As a result of her refusal, plaintiff was terminated. Plaintiff then sued under both the ADA and the Rehabilitation Act alleging that she had been fire based upon its erroneous perception that she suffered from a disability of mental illness. The district court granted summary judgment and plaintiff appealed.

 

V

Scheer Court’s Reasoning That Plaintiff Had Established Genuine Issue of Material Facts With Respect To Whether He Had Been Subject To An Adverse Action By Referral To An EAP

 

  1. To obtain relief under the ADA, plaintiff has to prove: 1) she is a disabled person as defined by the ADA; 2) she is qualified with or without reasonable accommodation to perform the essential functions of the job held or desired; and 3) she suffered discrimination by an employer because of that disability.
  2. Proving causation requires an ADA plaintiff to show that they have suffered an adverse employment action because of a disability. Prior case law in the circuit, defined adverse employment actions those constituting a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or decision causing a significant change in benefits. The district court applied this standard. However, soon after the district court issued its order, the Supreme Court unambiguously changed this legal standard in it Muldrow decision, which we discussed here.
  3. In Muldrow, the Supreme Court held that an employment action is adverse if plaintiff can demonstrate that she experienced some harm respecting identifiable term or condition of employment as a result of that action. That means an employer’s action must have left the plaintiff worse off, but need not have left her significantly so (emphasis in opinion).
  4. In a footnote, the court notes that while Muldrow arose under Title VII of the Civil Rights Act, its holding applies in full force across the board. Citing to a case that we discussed here, the court agreed that there was nothing in the text of Title VII decisions or otherwise suggesting Muldrow’s reasoning does not readily apply to nearly identical language of the ADA. Accordingly, the 10th Circuit joins other circuits in holding that Muldrow’s some harm standard applies to ADA claims as well as Title VII claims.

 

VI

Scheer Takeaways.

 

  1. This case has wider implications than just these facts. As readers know, I often work with attorneys for health care professionals/health care students who are being pushed out of the profession/school due to their disability. The critical fact in Scheer that gives the case wider implications is the EAP Formal Referral Form. The Form would authorize New Directions (the EAP provider) to disclose to plaintiff’s employer whether Scheer: (1) attended counseling sessions; and (2) complied with the EAP’s recommendation, all of which is very similar to what is seen in the MLB/PHP world. See this blog entry.
  2. The case is published and therefore, can be cited as precedent.
  3. This case was eminently predicable as we discussed here over a year ago, here.
  4. Unlike most situations I come across, Scheer was very smart to get an attorney involved immediately upon being mandatorily referred to the EAP. I strongly recommend that anyone mandatorily referred to an EAP or to a PHP get ADA knowledgeable counsel involved immediately.

Stay cool and safe!!!!!!