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VI. Recent ADA Cases: Mostly Victories for Plaintiffs
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VI. Recent ADA Cases: Mostly Victories for Plaintiffs Below is a listing of cases where plaintiffs generally have been successful, at least by “lowering the bar” to survive motions to dismiss and other pleas. ● Gibbs v. ADS Alliance Data Sys.58 The court denied defendant’s motion for summary judgment and held that carpal tunnel syndrome that is debilitating in one hand may constitute a disability under the ADAAA. The court stated that under the new law, “Congress intended to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis and that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.” ● Kinney v. Century Services Corp.59 Plaintiff had isolated bouts of depression, which was debilitating when active, but did not impact her work performance when it was inactive. The district court denied defendant’s motion for summary judgment and held that although intermittent depressive episodes were clearly not a disability prior to the ADAAA’s enactment, plaintiff’s depression raised a genuine issue of fact as to whether she is a qualified individual under the Amendments Act. ● Feldman v. Law Enforcement Assoc.60 One plaintiff had episodic multiple sclerosis and the other plaintiff had TIA, or “mini-stroke.” The court found that the multiple sclerosis was clearly a disability under the ADAAA since the statute specifically states that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” In addition, the recent EEOC regulations for the Amendments Act specifically list MS as a disability. As to the plaintiff suffering from TIA, the court held that “while the duration of [plaintiff’s] impairment may have been relatively short, the effects of the impairment were significant”, and therefore, he also alleged sufficient facts at the initial stage of the case. ● Chamberlain v. Valley Health Sys.61 Plaintiff adequately alleged that she was “regarded as” disabled as a result of her visual field defect which made fine visual tasks more difficult. The court denied summary judgment and held that the issue of whether the employer believed that plaintiff’s impairment “was both transitory and minor must be decided by a jury” given that plaintiff submitted an affidavit stating that one of her supervisors insisted that plaintiff was completely unable to work as a result of her vision problem. ● Cohen v. CHLN, Inc.62 Plaintiff alleged that he suffered from debilitating back and leg pain for nearly four months before his termination. The court denied summary judgment and held that under the less restrictive standards of the ADAAA, plaintiff has offered sufficient evidence to raise an issue of fact as to whether he was disabled at the time of his termination. While defendant claimed that his condition was of too short a duration, the court disagreed and found that the ADAAA mandates no strict durational requirements for plaintiffs alleging an actual disability. ● Norton v. Assisted Living Concepts, Inc.63 The court denied summary judgment and held that renal cancer qualified as a disability under the ADAAA. The fact that plaintiff’s cancer was in remission when he returned to work is of no consequence since there is no dispute that renal cancer, “when active,” constitutes a physical impairment under the statute. Moreover, cancer, when active, substantially limits the major life activity of normal cell growth, as defined by the statute and the EEOC regulations regarding the Amendments Act. See also Meinelt v. P.F. Chang’s China Bistro, Inc.64 ● Coffman v. Robert J. Young Co., Inc.65 A copy center operator (and 15-year employee) was seriously injured in a non-work related accident. She was placed on FMLA leave and subsequently received both short-term and long-term disability benefits. Even though she was given a “return to work” date with certain lifting limitations, she was terminated because (1) she could not perform the tasks of her position, (2) the company needed to fill the position and (3) “due to [her] long term disability.” The court held that the plaintiff had sufficiently pleaded a physical impairment that substantially limited the major life activity of working and the defendant had terminated her employment as a result of her impairment. ● Rico v. Xcel Energy, Inc.66 Plaintiff suffered a work-related back injury as an apprentice lineman and after surgery, he returned to work with “modest lifting restrictions” and “no utility pole climbing.” He subsequently requested a transfer, which was denied, where he would not lift or climb poles. Instead, he was recommended for long-term disability benefits and terminated, and he applied for an open position in competition with other job applicants. He was offered a lower-paying job with a loss of seniority. Plaintiff’s allegations of a violation of the ADA, as amended by the ADAAAA, withstood a motion to dismiss because plaintiff sufficiently pleaded he was disabled. ● Harty v. City of Sanford.67 After having received knee injuries and a 40% disability rating from the VA while in the Navy, plaintiff accepted a job with the city as an equipment operator. After a pre-employment physical, it was determined that he could perform all essential job functions. After 2 weeks on the job, he applied for and was offered a foreman’s job, with no additional fit-for-duty examination being conducted. He injured his knee while assisting a bricklayer and was placed on light duty. After returning to work full-time with restrictions on squatting, kneeling, running and jumping, among others, a fit-for-duty evaluation was performed, and it was determined that he could not perform all of the essential functions of a foreman and he was terminated. The employer’s motion for summary judgment was denied because there was evidence the plaintiff was disabled and a qualified individual who could perform essential job functions. ● Johnson v. Farmers Ins. Exchange.68 Under the broad definition of disability in the ADAAA, the plaintiff’s allegations that she suffered from sleep apnea were sufficient to state a claim that she had a disability that substantially limited a major life activity. As a consequence, the defendant’s motion to dismiss was denied. ● Farina v. Branford Bd. of Educ.69 Since the ADAAA lowered the threshold requirement to establish a disability, and specifically included lifting as a major life activity, “it is possible that even a relatively minor lifting restriction could qualify as a disability within the statute.” In this case, the lawsuit of a tenured elementary school teacher who had substantial performance issues and was often tardy to work did not survive a motion for summary judgment because of factual insufficiencies in her pleadings. ● Phelps v. Balfour Commemorative Brands, Inc.70 Although the plaintiff alleged she suffered from arthritis, bursitis, obesity, tendonitis, diabetes and anemia and was often sick and hospitalized, she made no factual statements as to the nature of her disability and did not show that her impairment substantially limited one or more major life activities. Consequently, she failed to establish a prima facie case for discrimination and also could not show a failure to accommodate a disability. ● Fierro v. Knight Transportation.71 Terminated truck driver requested that he not be sent over-the-road because of important medical appointments and that he be granted leave from work to seek medical attention. The plaintiff alleged that he had adenoid cystic carcinoma, a form of cancer, but failed to plead any facts giving rise to an inference that his cancer substantially limited one or more major life activities. He also failed to plead sufficient facts regarding the timing of his termination relative to his alleged cancer as well as facts that his employer had notice of the disability and failed to accommodate; however, the plaintiff did plead sufficient facts that he was perceived by his employer to have cancer, thus stating a cause of action for discriminatory discharge. ● Nayak v. St. Vincent Hospital and Health Care Center, Inc.72 Hospital OB/GYN resident delivered one of two twins (one passed away during pregnancy) and experienced serious post-partum difficulties. Her contract was not renewed and she alleged it was a result of her pregnancy complications. The court determined the resident had sufficiently pleaded a plausible claim for disability discrimination but had not adequately pleaded a “regarded as” disabled claim of discrimination. 1 570 U.S. ___, 133 S.Ct. 2675 (2013). 2 570 U.S. ___, 133 S.Ct. 2652 (2013). 3 Section 3 of DOMA provides as follows: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife. 1 U.S.C. § 7. 4 833 F.Supp.2d 394 (S.D.N.Y. 2012). 5 699 F.3d 169 (2d Cir. 2012). 6 Windsor, 133 S.Ct. at 2686. 7 Interestingly, Justice Kennedy, writing for the majority, addressed the political nature of this case. “The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise. But this case is not routine. And the capable defense of the law by BLAG ensures that these prudential issues do not cloud the merits question, which is one of immediate importance to the Federal Government and to hundreds of thousands of persons. These circumstances support the Court’s decision to proceed to the merits.” Id. at 2689. 8 Id. at 2690-92. 9 Id. at 2694. 10 Id. 11 Id. at 2693. 12 Id. at 2695. 13 In re Marriage Cases, 43 Cal.4th 757; 76 Cal.Reptr.3d 683; 183 P.3d 384. 14 Hollingsworth, 133 S.Ct. at 2659. 15 Id. at 2660. 16 Perry v. Schwarzenegger, 704 F.Supp.2d 921 (N.D. Cal. 2010). 17 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012). 18 Hollingsworth, 133 S.Ct. at 2662. 19 Id. 20 Frequently Asked Questions for Individuals of the Same Sex Who Are Married Under State Law is found at http://www.irs.gov/uac/Answers-to-Frequently-Asked-Questions-for-Same-Sex-Married-Couples. 21 See http://www.dhs.gov/news/2013/07/01/statement-secretary-homeland-security-janet-napolitano-implementation-supreme-court. 22 See USCIS Frequently Asked Questions (FAQ) about Implementation of the Supreme Court Ruling on the Defense of Marriage Act (updated on July 1, 2013), and found at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fbfe0b8497b9f310VgnVCM100000082ca60aRCRD 23 See http://www.dol.gov/whd/regs/compliance/whdfs28a.htm. 24 See http://about.bloomberglaw.com/practitioner-contributions/same-sex-marriage-and-erisa-in-the-windsor-era/. 25 29. C.F.R. § 785.11 (“Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time.”). 26 29 C.F.R. § 785.7. 27 Id. 28 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946); see also 29 C.F.R. § 785.47 (“In recording working time under the [Fair Labor Standards] Act, insubstantial or insignificant periods of time beyond the scheduled working hours, which cannot as a practical administrative matter be precisely recorded for payroll purposes, may be disregarded.”). 29 Lidow v. United States, 738 F.2d 1057, 1062 (9th Cir. 1984). 30 Reich v. Montfort, 144 F.3d 1329, 1333-34 (10th Cir. 1998); Lidow, supra note 66. 31 Press Release, U.S. Department of Labor, Keeping track of wages: The US Labor Department has an app for that! (May 9, 2011). 32 643 F.3d 352 (2d Cir. 2011). 33 2011 WL 941383 (N.D. Ill. 2011). 34 2009 WL 2957963 (M.D. Fla. 2009). 35 29 C.F.R. § 1630.16 App. (§ 1630.2(j), “Substantially Limits”) (Pre-ADAAA text). 36 29 C.F.R. § 1630.16 App. (§ 1630.2(h), “Physical or Mental Impairment”). 37 EEOC v. Resources for Human Development, 2012 WL 669435 (E.D. La. 2012). 38 Id. 39 2010 WL 5232523 (N.D. Miss. 2010). 40 Under the ADA, as amended, a disability is “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). 41 See 42 U.S.C.A. §§ 12101(1)(C), (3). 42 Id. 43 The three “Sutton trilogy” cases are Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999); and Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999). 44 2012 WL 2726766 (N.D. Ga. 2012). 45 See 42 U.S.C. § 12111(10)(A). 46 Id. at § 12111(10)(B). 47 See Dey v. Milwaukee Forge, 957 F.Supp. 1043, 1052 (E.D. Wis. 1996) (“An accommodation that would result in other employees having to work harder or longer is not required under the ADA”); and Pate v. Baker Tanks Gulf S., Inc., 34 F.Supp.2d 411, 417 (W.D.La.1999)(holding same). 48 2012 WL 1552780 (D. Md. 2012). 49 42 U.S.C. § 12102(1)(A). 50 Id. § 12102(1)(C). 51 See id. § 12102(1)(A). 52 Id. § 12102(2)(A)-(B). 53 See 42 U.S.C. § 12102(4)(A); see also 29 C.F.R. § 1630.2(j)(1)(i) (“‘Substantially limits’ is not meant to be a demanding standard.”). 54 See 42 U.S.C. § 12102(1). 55 Id. § 12102(3)(A). 56 See id. § 12103(3)(B). 57 Id. 58 2011 WL 3205779 (D. Kan. 2011). 59 2011 WL 3476569 (S.D. Ind. 2011). 60 779 F.Supp.2d 472 (E.D.N.C. 2011). 61 781 F.Supp.2d 305 (W.D. Va. 2011). 62 2011 WL 2713737 (E.D. Pa. 2011). 63 786 F.Supp.2d 1173 (E.D. Tex. 2011). 64 2011 U.S. Dist. LEXIS 57303 (S.D. Tex. 2011) (denying summary judgment where plaintiff had an operable brain tumor). 65 2011 WL 2174465 (M.D. Tenn. 2011). 66 893 F.Supp.2d 1165 (D.N.M. 2012). 67 2012 WL 3243282 (M.D. Fla. 2012). 68 2012 WL 95387 (W.D. Okla. 2012). 69 2010 WL 3829160 (D. Conn. 2010). 70 2013 WL 653542 (W.D. Ky. 2013). 71 2012 WL 4321304 (W.D. Tex. 2012). 72 2013 WL 121838 (S.D. Ind. 2013). 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