Trucking Company to Pay $300,000 to Settle EEOC ADA Accommodation Suit

A recently settled lawsuit brought by the EEOC against an Arizona trucking company highlights the importance for companies to always consider unpaid leave as a reasonable accommodation and to ensure their managers and supervisors are trained on all federal, state and local discrimination laws.

In September 2013, the EEOC sued Chemical Transportation, Inc., alleging that its policies violated the ADA by prohibiting employees from working with any medical restriction and by terminating employees if they are unable to return to “full, unrestricted duty” after twelve weeks of leave.  The EEOC also alleged that the company unlawfully denied disabled employees’ requests for transfer to open positions for which they were qualified.

On September 22, 2015, after almost two (2) full years of litigation – and likely significant attorneys’ fees and costs – CTI agreed to pay $300,000 and take other affirmative actions to resolve this matter, according to the EEOC’s press release.  In addition to the monetary settlement, CTI agreed to hire a neutral consultant to ensure compliance with the ADA, eliminate its policies prohibiting employees from working with medical restrictions or requiring termination after twelve (12) weeks of leave, and institute a system of evaluating managers and supervisors based upon their compliance with EEO laws.

This lawsuit and settlement send a stark message that companies must be vigilant in ensuring their practices and policies do not offend or contradict their duty to engage in the interactive process and provide reasonable accommodations to employees.  In particular, this matter demonstrates that compliance with the FMLA is simply not enough and that all supervisors and managers must be fully aware of and trained on their duties under all federal, state, and local discrimination laws with respect to accommodating disabled employees.

Deaf Plasma Technician’s ADA Accommodation Case Revived

Recall the deaf applicant for a lifeguard position who was the subject of our post here. Most memorable there was the comment by the employer’s doctor to the applicant and his mom that “[h]e’s deaf. He can’t be a lifeguard.” The court there resuscitated the lifeguard’s ADA claim.

Now comes a deaf applicant for a plasma center technician (PCT) position. A PCT monitors the blood donor area and process, which includes responding to audible machine alarms, monitoring patients and communicating with them as needed.  On rare occasions, blood donors have significant adverse reactions. The plaintiff communicates primarily through lip reading.

After receiving the documentation from a post-offer medical exam, the employer withdrew the offer due to “safety” reasons. The employer had concluded that the applicant would be unable to hear the machines’ audible alarms and could not safely monitor donors because she would not be able to perceive the donor’s need for attention when her back was turned to the donor.

The plaintiff had requested that the employer add “visual or vibrating alerts to the plasmapheresis machines” so that she could see the alarms and to install call buttons so that donors could call her. The employer had denied those requests.

The trial court granted the employer’s motion for summary judgment, agreeing that the applicant was not qualified for the position because she could not perform the essential functions of the PCT job. The U.S. Court of Appeals for the Tenth Circuit reversed and remanded the case to the district court. Osborne v. Baxter Healthcare Corporation d/b/a Biolife Plasma Services, L.P. (10th Cir. August 24, 2015).

The appeals court said a jury should decide whether the employer’s providing the plaintiff’s requested accommodations would have been an undue hardship. The court noted that the fact that the employer would need to contact the machine’s vendor did not establish that the modifications were costly or difficult.

Also, the court held that a jury should decide whether the plaintiff would present a direct threat of harm due to her inability to handle the few donors annually who have significant adverse reactions. The court noted that these situations are “highly improbable and not always serious,” and the record did not establish that plaintiff would be unable to handle them.

Boat Analyst’s Disability Claim Does Not Hold Water

A Coast Guard analyst unable to maintain regular and predictable attendance due to various debilitating conditions was not entitled to her requested accommodations of telecommuting and a later start time, according to a decision by the U.S. Court of Appeals for the District of Columbia Circuit. Doak v. Johnson, Sec’y US Dep’t of Homeland Security (D.C. Cir. Aug. 18, 2015).  Following her termination for due to her attendance after she had exhausted her FMLA leave, the plaintiff sued under the Rehabilitation Act, the ADA-equivalent applicable to federal employees. The Court affirmed the grant of summary judgment to the Coast Guard.

The plaintiff had various duties relating to a boat building project. The Court held that attendance was an essential function of her position because she needed to meet daily with project managers and staff and collaborate with other work groups. Granting her a later start time was not reasonable since she already had the latest start time and she was unable to arrive by that time regularly and often did not report to work at all, according to eh court.

Allowing her to telecommute was not a reasonable accommodation, the court held, because spontaneous meetings occurred frequently, meeting attendees often reviewed documents simultaneously, and some files could not be accessed remotely. Also, “the pace of work can sometimes be too fast for anything other than on-site presence,” the court noted.

The court also cited the impact of the plaintiff’s frequent and unpredictable absences and late arrivals on her co-workers. The plaintiff’s absences created an undue hardship on co-workers, who were required to “step in and pick up the slack” for her, often with little notice, “which negatively impact[ed] the accomplishment of the agency’s mission,” the court observed.

Train Agent’s Lilly Ledbetter Argument in ADA Demotion Claim Left on Platform

A plaintiff may not salvage her untimely ADA demotion claim by alleging that the statute of limitations began anew with each paycheck pursuant to the Lilly Ledbetter Fair Pay Act, according to the Second Circuit Court of Appeals. Davis v. Bombardier Transportation Holdings (USA) Inc. (Second Circuit, July 25, 2015).

The Lilly Ledbetter Fair Pay Act was passed by Congress to reverse the Supreme Court’s 2007 decision in Ledbetter v. Goodyear Tire & Rubber Co., which was a compensation discrimination case. The Supreme Court rejected the plaintiff’s contention that even though a challenge to the discriminatory compensation policy was untimely, each paycheck was a separate act of discrimination.

In Davis, the plaintiff’s employer operates the train that connects New York City and JFK Airport. The plaintiff had been an Air Train Agent (ATA) II, which had all of the duties of an ATA I and the additional responsibility of operating the train manually during emergencies. An ATA II was paid seventy-five cents more than an ATA I. Following her return to work after eye surgery, her employer demoted her to an ATA I position.

The plaintiff filed a charge with the EEOC, alleging that her demotion violated the ADA. The district court granted summary judgment to the employer because the charge was filed more than 300 days after the demotion. On appeal, the plaintiff argued that because she was paid less as an ATA I, the statute of limitations began anew with each paycheck under the Ledbetter law.

In rejecting the Ledbetter argument, the Second Circuit noted that the Ledbetter Act “does not encompass a claim of a discriminatory demotion decision that results in lower wages where…the plaintiff has not offered any proof that the compensation itself was set in a discriminatory manner.”

A critical issue in a Ledbetter claim is whether an employee had reason to know, and assess, an employer’s action, according to the court.  An employee might not learn that someone else is being paid more for some time. However, an employee who is demoted knows immediately of the demotion and the reduced compensation and can assess then whether the employer’s explanation was legitimate or a pretext for unlawful discrimination.

Stroke Victim Wanted More from Flossmoor under ADA

Sometimes it seems an employer has done a lot to accommodate an employee under the ADA, yet the employee claims the employer should have done more.  The Seventh Circuit addressed such a situation in Swanson v. Village of Flossmoor (7th Cir. July 24, 2015).

A police detective in the Village of Flossmoor, IL had two strokes within six weeks. After the first stroke, the detective requested FMLA leave, which the Village granted.   Three weeks later, pursuant to his doctor’s note, he requested to work part-time for a month, which the Village granted.  A few weeks later, he had his second stroke, which left him unable to work at all.

Seven weeks after his second stroke, he applied for FMLA retroactively, which the Village granted.  A week after his FMLA expired, he was released to return to work without restrictions but before he returned, he had another medical incident. He resigned five days later, stating that he was “simply physically unable to return to [his] duties” due to his stroke. He asked to stay on an unpaid leave of absence before retiring, which would allow him to continue to obtain health insurance.  The Village granted his request.  He applied to the Village Pension Board for a disability pension. The Board granted his request.

After his resignation, he filed an ADA charge, alleging that after his first stroke, he had asked for light duty and was told that light duty was not available. He claimed that the police department’s manual gave the department discretion to grant light duty and its failure to discuss that option with him was a failure to engage in the interactive dialogue required by the ADA.

The Seventh Circuit affirmed the lower court’s grant of summary judgment to the Village of Flossmoor. Flossmoor did enough, according to the Court.”[T]he Village’s accommodation (and, frankly, its general treatment of [the plaintiff] in the wake of his medical issues seems quite reasonable here.”

The Evolving Paid Sick Leave Patchwork

Montgomery County, MD and Oregon passed it. California had passed it, then amended it within days after its effective date. In Massachusetts, the Attorney General issued regulations to implement it, and a court said the National Labor Relations Act does not preempt it.  North Carolina, Maryland and New Jersey (and likely others) are considering it.

Employees in Minneapolis and Spokane, WA rallied to demand it. Michigan said no Michigan city can have it. A Michigan group is collecting signatures to have a state-wide referendum on it (it has never been defeated when voters vote on it).

The “it,” of course, is a paid sick leave law.  Four states (CA, CT, MA, OR), the District of Columbia, one county (Montgomery, MD) and another 20 or so municipalities have enacted paid sick leave laws. While there is some consistency in the structure of all of these laws, each has its own unique components. National and multi-jurisdiction employers are struggling to develop a paid sick leave policy that meets all of the requirements of all of these laws.

In March 2013, this blog predicted a paid sick leave mega-trend. As we said then, “the patchwork challenge has nothing to do with the social question of whether there should or should not be paid sick days. The challenge is the proliferation of leave and attendance laws and how they interact with each other.” With only 4 of 50 states and a couple dozen of thousands of counties and municipalities having enacted such a law, we have only just begun.

FMLA and ADA Claims Dismissed Where Employer Continued Misconduct Investigation During Employee’s Three Leaves

The situation is not that uncommon. An employer learns of a performance incident and the employee involved promptly requests FMLA leave. The employer then must decide how to address the incident while avoiding the risk of an FMLA or ADA claim. Will the law protect an employer that provides the employee FMLA leave while investigating the misconduct allegations against that employee?

Such employer efforts were upheld in the Fourth Circuit’s decision dismissing FMLA and ADA claims in Adams v. Anne Arundel County Public Schools (4th Cir. June 15, 2015). The plaintiff, Andrew Adams, an assistant principal, was accused of physically accosting a student at his middle school. Child Protective Services investigated and cleared Adams. The School Board launched its own investigation and temporarily reassigned Adams to another school. While that investigation was ongoing, Adams was set to return to his original school but requested, and was granted, FMLA leave for stress, anxiety and high blood pressure related to the abuse allegations. When Adams returned to work a few weeks later, he alleged that the principal verbally berated him. Adams requested and was granted a second leave beginning that same day. Adams returned to work yet again and claimed the principal berated him again. Two weeks later, Adams began a third leave that exhausted his FMLA entitlement. During this third leave, the Board required Adams to meet three times with a psychologist of its choosing. That doctor and Adams’s doctor required that Adams be assigned to a lower stress environment upon his return. Also during this leave, the Board met with Adams and his attorney regarding its investigation and issued a written reprimand to him.  The Board later notified Adams that he would be transferred to a smaller school with a lower stress environment. According to the applicable labor contract, there would be no reduction in Adams’ salary for at least two years despite his being at a smaller school.

Adams’s claimed that by the reprimands and transfer, his employer interfered with his FMLA rights, discriminated against him in violation of the ADA, and retaliated against him for exercising his rights under both the FMLA and ADA. The court rejected his claims, noting that the right to reinstatement after FMLA leave is not “absolute” but is limited to the position or equivalent that he would have retained absent taking leave. Additionally, the Court noted that Adams was not denied any leave and that  the FMLA expressly permits an employer to seek a second medical opinion related to how long an employee would be out and/or how to fashion an appropriate environment for the employee’s return to work. The court also noted that the Board’s investigation was intrinsically connected to its duty to ensure the safety of its students and that the Board accorded Adams due process at every step of its investigation.

The court dismissed the ADA claims based on similar analysis, holding that Adams’ transfer to a school where his pay ultimately may be reduced by less than 1% was not an adverse employment action. The court also noted that the Board acted appropriately by making timely efforts to effectuate the doctors’ recommendations to reasonably accommodate Adams by returning him to work in a lower stress environment. The court noted that “less stressful jobs may on occasion be less remunerative. That tradeoff does not invalidate the Board’saction [transferring Adams as a reasonable accommodation] in these circumstances.”

Notably, this decision centered on an investigation that started before any FMLA leave or notice of disability; and, while that investigation continued for several months, the employer followed its established investigation process and communicated with the employee throughout the process. This careful approach contributed to the Board’s successful defense.

Massachusetts Earned Sick Time Law Update: Final Regulations Issued

Thanks to our colleague Jeffrey S. Brody for this post.

The Massachusetts Attorney General’s office has issued the long-awaited final regulations for the Massachusetts Earned Sick Time Law.   The final regulations are available from the AG’s website, at

Jackson Lewis will be discussing the final regulations in our complimentary webinar, “Navigating Massachusetts’ New Paid Sick Leave Law,” on June 24, 2015. To register for the webinar, go to:

Doctor’s Hope for Change Insufficient to Support ADA Accommodation Request

Medicine being an inexact science, doctors’ notes concerning an employee’s ability to work with a particular accommodation are often tinged with optimism yet hedged by a less than definitive prediction about the likelihood of success.   How much of a health care provider’s hope for change—some would say speculation or wishful thinking–must an employer accept when evaluating whether a requested accommodation will enable an employee to perform the essential functions of the position?

The Seventh Circuit’s recent decision in Stern v. St. Anthony’s Health Center (7th Cir. June 4, 2015) is a good place to start the analysis. There, the health care provider of a chief psychologist with memory loss said that “’it is possible that currently [the psychologist] would be more likely to be able to complete routine clinical duties’ by better note taking, completing documentation immediately” and eliminating or reducing certain duties. These steps would “likely” allow the doctor to compensate for his memory loss “more effectively.”

These “conclusory,” “speculative,” and “untested suggestions” and opinions were insufficient to create a factual issue about whether the plaintiff could perform the essential functions of his position with an accommodation, according to the court. It upheld a grant of summary judgment to the defendant on that issue.

In reaching its conclusion, the court revisited three of its prior decisions on this issue. The prediction about the employee’s ability to work with an accommodation was too speculative in two of them. In one, a doctor’s note state that “there was a good chance” that the plaintiff would be able to return to work with treatment.” This was “too conclusory and uninformative” to support a conclusion that more leave would have been successful, the court said. In the second case, the plaintiff’s evidence was that “she had hoped for enough improvement to return to work regularly after leave” but failed to produce “medical evidence regarding the effectiveness of the treatment.”  In the third case, the plaintiff’s evidence “suggest[ed] that a reasonable accommodation was readily available; [plaintiff] simply needed further medical testing and a prescription to control her narcolepsy.” The court held that that evidence was sufficient to create a question about whether the plaintiff could work with an accommodation.

Of course, there are many gradations between “just needs a prescription” on one end of the “hope for change” continuum and the speculative untested suggestions on the other.

New Jersey Lobbying Efforts Focused on Paid Sick Leave

In 2014, the introduction and passage of paid sick leave laws was one of the most popular issues among state and local legislatures around the United States.  There has been significant debate among employee and employer-interest groups regarding the efficacy of these laws.  It appears, based upon a report from the state Election Law Enforcement Commission, that this debate was similarly active among New Jersey lobbying groups.

In light of an apparent heightened interest among New Jersey municipalities in enacting paid sick leave laws (to date, nine have done so), the New Jersey Assembly and Senate introduced legislation in 2014 which would require employers to provide paid sick leave time to their employees.  If enacted, this law would preempt all previously enacted paid sick leave ordinances in New Jersey.  Since its introduction, it appears New Jersey lobbying groups have dug in their heels in support of their respective positions.

According to a recent report from a Rutgers University doctoral student interning at the state Election Law Enforcement Commission, this pending legislation was the most heavily lobbied bill in 2014.  The paid sick leave lobbying efforts exceeded efforts regarding, among other things, legislation regarding heroin/opiate abuse and legislation which would allow a terminally ill patient to end his or her life.

Similarly, following the passage of the paid sick leave ordinance in Trenton, a coalition of business groups filed a complaint challenging the constitutionality of the ordinance.  In April 2015, a New Jersey Superior Court Judge threw out this petition, landing a significant blow to employer-interest lobbying efforts on the municipal-level.

Nevertheless, based upon this interest and debate among lobbying groups in New Jersey, the questions of whether a paid sick leave law will be enacted on a state level is poised to be a hotly-contested issue as we move towards the 2016 elections, especially in light of questions surrounding Governor Chris Christie and his potential bid for the United States presidency.  Stay tuned.