One Shocking Incident Of Disability Discrimination Supports Verdict For Employee

Posted on November 23, 2009 by Ellen Simon

Judgment For Employee Due To Employer's Failure To Accommodate  

I don’t remember ever reading a case quite like this one. The facts are quite graphic so be prepared. The story revolves around an incident of a store’s failure to accommodate a disability which led to a tragic result.

What Happened In The Case

A woman identified only as A.M. came to America in 1981 from El Salvidor after civil war broke out. She started working at Albertsons in 1987. She worked in various jobs, but at the time of the incident giving rise to the case, she was working as a checker. 

In 2003, A.M. underwent chemotherapy and radiation for cancer of the tonsils and larynx. The treatment affected her salivary glands which caused her to drink large volumes of water and urinate repeatedly.

While at work, A.M. was required to have water with her at all times and needed to go to the bathroom frequently -- sometimes as often as every 45 minutes.

Most managers accommodated her but on the evening of February 11, 2005, A.M. encountered a horrific problem.

She worked a shift that day which began at 1:00 p.m. and was scheduled to end at 10:00 p.m.

By 7:00 p.m. there were only three employees in the store – A.M. who was working as checker, another woman who acted as courtesy clerk (and was not allowed to relieve a checker), and Kellie Sampson – the person in charge.

At 8:00 that evening, A.M. told Sampson that she needed take a break. Sampson asked A.M. to wait because a delivery truck was coming

Some time later, A.M., who had a line of customers waiting to check out, called  Sampson and told her again that she needed to go to the bathroom. Sampson told her that she was unloading the merchandise and that she had to wait.

About 10 minutes later, A.M. still had customers in the line. She called Sampson once more and told her that she really had to go. Sampson said that she was busy and unable to come to the front of the store.

Unable to control herself, A.M. urinated while standing at the checkout stand. She was having her menstrual cycle, and so she was drenched with both urine and blood.

Understandably, A.M. was shaky and humiliated though she did not think the customers saw what happened. When Sampson finally got to the front of the store, A.M. went into the bathroom to clean herself.

Sobbing, she called her husband to tell him what happened. A customer observed her crying, asked what was wrong, and A.M. explained that she had wet herself because no one let her go to the bathroom.

The customer helped her to her car. She had a horrible drive home and thought about killing herself.

When she got home, still nervous and crying, she took a long shower and tried to scrub the smell off her. She wouldn’t get out of the shower and her husband had to remove her.

After that, she was unable to return to work and began to deteriorate psychologically. She became listless and withdrawn. She refused to see family and friends. She feared that people would be able to smell the bad odor she sensed about herself.

She had crazy dreams and couldn’t sleep. Each day, she took multiple showers to try and remove bad smells from her body. She shaved off all of her body hair, hoping that the bad smell would go away.

Eventually A.M. told a doctor that had thoughts about killing herself. She was committed to a psychiatric hospital for several days.

She began receiving individual and group therapy and eventually improved. She took fewer showers and began to be less concerned about her smell. She still was withdrawn but eventually was able to go back to work.

The Lawsuit

A.M. filed a for damages claiming that Albertsons failed to provide her with a reasonable accommodation for her disability in violation of California’s Fair Employment and Housing Act (“FEHA”).

As generally happens where damages for emotional distress are being considered, there was conflicting testimony was presented from from the psychologists and psychiatrists.

For the plaintiff, an expert in psychological treatment and injury testified about A.M.s post traumatic stress disorder . The expert's opinion was that A.M.'s emotional distress occurred as a direct result of the February 2005 incident and that she would likely suffer some effect of this disorder for many years.

Two psychiatrists testified on behalf of the defense. Their opinion was that her depression was a result of events that predated the February incident and that  A.M. had been depressed and anxious for most of her life.

The jury returned a verdict in A.M's favor and awarded damages in the amount of $200,000:

  • $12,000 for past lost wage
  • $40,000 for future medical expenses
  • $148,000 for past emotional distress
The Appeal

Albertsons made several arguments on appeal.

Under the FEHA (like the Americans With Disabilities Act) an employer that fails to make a reasonable accommodation for an employee’s known physical disability engages in an unlawful employment practice.

Albertsons main contention was that its failure to accommodate was trivial, because it constituted a single incident in the context of a much longer period of successful accommodation (which began in 2004 when A.M. came back to work after her cancer treatment).

In other words, the defense argued that one incident of a failure to accommodate is not enough to violate the law.

The Court of Appeals strongly disagreed and had this to say in its opinion:

The employer’s interpretation would be inconsistent with the statutory purpose to require employers to make reasonable accommodation for their employees’ physical disabilities …

As is demonstrated by A.M.’s case, a single failure to make reasonable accommodation can have tragic consequences for an employee who is not accommodated.

When construing a statute, we seek to interpret it in a manner that promotes wise policy, not absurdity. ….

The judgment is affirmed.

Lessons To Be Learned

I don’t remember ever reading a case that turned on the question of whether a single incident of accommodation could support a disability claim and verdict --  so for that reason, the case is both interesting and important.

The case is also a sad and disturbing illustration of what can happen when managers at all levels are uninformed about the consequences of a failure to  accommodate the disabled.

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ADA Changes Better Late Than Never

Posted on November 9, 2009 by Ellen Simon
New ADA Regulations Will Bring Necessary Change

I received a call from a reporter from MSNBC a few days ago. She indicated that she wanted to ask me some questions about the new Americans with Disabilities Act regulations recently put out by the EEOC.

The interview caused me to reflect on just how important the amendments to the ADA are --along with the new regulations --- and the struggle we have gone through to get here.

When the ADA was written, I remember being at a meeting in Cleveland with a group of employment lawyers which was sponsored by a committee of the American Bar Association. The guest speaker was a lawyer from D.C. and he was there to talk to us about the new legislation and give us a preview.

I remember listening to and reading all of these complex, confusing terms and thinking “this is going to result in tons of litigation and be a big nightmare." I walked out of the meeting and talked about my deep concern with some friends and colleagues from both sides of the bar.

We all seemed to reach the same conclusion – that this was going to be an ugly litigation mess -- and though we saw the handwriting on the wall, there was nothing we could do about it. The ADA was written and this is what it was going to say.

And indeed what our group of experienced employment lawyers predicted that day in 1990 turned out to be true. While the intent of the ADA was certainly noble, the way in which it was written has caused nothing but problems.

What’s more important is that the problems with the ADA have had a terrible negative effect on those individuals who were supposed to be protected by the legislation.

The ADA was intended to protect individuals with disabilities from discrimination. Because of the way in which the Act was written, combined with the way in which it has been interpreted by an exceedingly conservative federal judiciary, most cases got thrown out on summary judgment because the courts determined that the individual plaintiff employee was not disabled.

If he/she was not disabled, then he/she was not protected by the ADA from disability discrimination, and so they lost. Here’s an example of what I mean.  

A secretary gets fired for going to chemotherapy. We file a case of disability discrimination. The employer argues that cancer is not a disability as defined by the Act. The judge buys the argument and the case gets thrown out. (based on a true story)

That scenario occurred thousands and thousands of times. Employees with disabilities were getting fired, or not hired in the first place, or passed over for promotions – and the cases were thrown out of court because the employers argued that the person was not disabled so the ADA did not apply.

Those rejected included people with AIDS, people with cancer, people with MS, people with epilepsy, diabetes, with prosthetic devices and the list goes on and on.

As a consequence,  those of us who tried to represent these folks never even got to the stage of the case in which we had a chance to prove discrimination.

As I explained to the MSNBC reporter, in other discrimination lawsuits such as age, race, or gender discrimination cases, we don’t have a fight about whether the client is a woman, or over 40, or black.

We glide past step one, and move on to proof of the next step, that is:

  • Was he or she was discriminated against because of age, race or gender?
  • Was that person’s age, race, or gender a motivating reason for the discharge, failure to hire, lack of promotion, or any other adverse employment decision?

In disability cases, it was almost impossible to get to step two. Practically no one seemed to meet the criteria for coverage under the ADA. To be covered, the individual must:

  • have a physical or mental impairment that substantially limits one or more major life activities
  • and be able  to perform the essential functions of the job.

The courts decided – at the employers’ urging -- that the employee was either not substantially impaired, or that the impairment did not involve a “major life activity.”

Even if the plaintiff got over that hurdle – in other words was disabled enough to meet the criteria, it’s most likely that he or she was booted anyway.

That’s because the employer would then take the position that the individual was so restricted that he or she was not able to meet the essential functions of their job – and most courts went along with the companies’ argument.

In a nutshell, a person either wasn’t disabled enough to meet the definitional terms of the statute-- - or was too disabled to perform the “essential functions of the job” even if accommodated. (reasonable accommodation for the disabled is required under the ADA)

The long and short of it is that millions of people with disabilities had no protection from discrimination as a result of this legal mess.

The amendments to the ADA passed last year (Americans with Disabilities Act  Amendments Act of 2008) fixed this problem and the regulations issued at the end of September provided most of the necessary clarifications to put real teeth into the fix. 

For the first time, the EEOC regulations lists examples of impairments that will consistently meet the definition of a disability. Such impairments include (but are not limited to):

  • Blindness
  • Deafness
  • Intellectual disabilities
  • Partially or completely missing limbs
  • Mobility impairments requiring the use of a wheelchair
  • Autism
  • Cancer
  • Cerebral palsy
  • Diabetes
  • Epilepsy
  • HIV/AIDS
  • Multiple sclerosis
  • Muscular dystrophy
  • Major depression
  • Bipolar disorder
  • Post-traumatic stress disorder
  • Obsessive-compulsive disorder
  • Schizophrenia

There are new definitions for substantial impairment, major life activity, regarded as disabled, and more  -- all of which are intended to overrule the previous restrictive federal court interpretations of the legislation(including the US Supreme Court).

The new ADA amendments along with the regulations plainly state that the ADA is intended to offer broad protection to people with disabilities as well as people who are regarded to be disabled by their employers and who are discriminated because of it.

Instead of litigating the issue of whether someone is disabled,   the central issue of these cases will now be what they should have been all along – whether the employee was discriminated against because of a disability.  That’s what was intended when the Americans With Disabilities Act was passed.

Too bad it took us nineteen years to get here – but as the old adage goes, better late than never.

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Great Disability Rights Opinion From Seventh Circuit For Employees And Their Lawyers

Posted on November 1, 2009 by Ellen Simon

Employee With MS Wins Appeal In Seventh Circuit "Regarded As" Disability Decision

A case was decided by the Seventh Circuit Court of Appeals last week that was an important victory for the employee as well as his lawyers.

In Brunker v. Schwan’s Home Service, Inc. the Court reversed judgment in favor of Schwan’s on Brunker’s disability claim. It also reversed the lower court’s testy imposition of sanctions against Brunker’s lawyers.

What Happened In The Case.

Frank Brunker worked as a delivery driver for Schwan’s delivering frozen food to its customers. In February of 2003, Brunker started experiencing shaking of his hands, slurred speech, dizziness, light headedness, and headaches.

The symptoms continued, Brunker went to the doctor, tests were taken, and Brunker was told that he might have multiple sclerosis.

Brunker went on disability leave for two months. Eventually, he went back to light duty work, and then back to work without any restrictions by his physician. He performed his job and was able to complete his route in the same manner as he had in the past.

Four months later, Brunker told his supervisor that he wanted to go to the Mayo Clinic for some tests. Around the same time, he stared to get written up for various performance issues.

When Brunker returned two weeks later, after being diagnosed with multiple sclerosis, his supervisor fired him citing “unsatisfactory performance” and "unable to perform essential job functions” on the termination form.

(Notably, Brunker’s supervisor backdated the termination form to September 9, the day Brunker left for the clinic and before his diagnosis of multiple sclerosis.)

Brunker filed a claim in federal court for disability discrimination under the Americans With Disabilities Act. The lower court (N.D. Indiana) threw out the case and in an unusual move, sanctioned Brunker’s lawyers because of their discovery requests (attempts to get evidence to prove their case).

The Seventh Circuit Reverses

It would be tempting to go in to all of the reasons why the lower court’s opinion was just flat out wrong, but some of them don’t matter anymore since the Americans With Disabilities Act was amended to prevent precisely this result.

Multiple Sclerosis Is A Disability

The first part of the lower court’s ruling pronounced that Brunker had no claim because he was not disabled. In other words, the fact that he had multiple sclerosis didn’t matter, according to the court -- even if that’s why he was fired -- because MS was not a disability.

The court’s logic was based on case law developed under the ADA which left millions of people with disabilities unprotected from employment discrimination.

Fortunately, the ADA was amended this past year. Under the new act, multiple sclerosis would be considered a disability (and should have been under the old act as well) so a judge theoretically should not be able to throw the case out on similar grounds. (the court did not address the amended ADA because the case was filed before it was passed)

(For information on new regulations proposed under the amended ADA see the article in the Connecticut Employment Law Blog)

Being Regarded As Disabled Is A Violation Of The ADA

Under the ADA (both the old act and the new one) a person has a claim for disability discrimination if he or she is subjected to an adverse employment decision because he or she is regarded as disabled.

To prove disability discrimination under a “regarded as” theory the employee can win by proving that:

  • The employer mistakenly believes that the employee has an impairment that substantially limits a major life activity, or
  • The employer mistakenly believes that an existing impairment, which is not actually limiting, does substantially limit a major life activity (functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working)

In this case, the Court of Appeals decided that Brunker presented enough evidence that he was fired because Schwan’s regarded him as being disabled. In reversing the lower court, the Court of Appeals stated:

The record contains adequate evidence to support a theory that Schwan’s regarded Brunker as being disabled in the major life activities of walking, caring for himself, and speaking.

For example, the day before he left for the Mayo Clinic, Schwan”s issued Brunker multiple corrective action reports, including a dress code violation, suggesting that Schwan’s did not believe that Brunker was able to care for himself because of his apparent conditions.

Furthermore, Schwan’s disciplined him even though other employees were not cited for similar violations.

As to Schwan’s motive, the Court of Appeals had this to say:

Schwan’s fired Brunker immediately after he returned from treatment, but Schwan’s backdated the termination notice to before he left for the clinic, evidently hoping to avoid the impression that his apparent condition influenced Schwan’s decision to terminate him.

These facts are sufficient to create a triable question as to whether Schwan’s regarded Bunker as disabled when it fired him.

The Court Reverses Sanctions Against The Lawyers

It’s typical in these kinds of lawsuits for lawyers representing employees to request documents from the employer defendant to either prove their case  or disprove the defendant’s case. It not only typical; it is absolutely allowed the Federal Rules of Civil Procedure.

In what I can only say is a quirky, outlandish, and mean-spirited ruling, the trial court in this case imposed sanctions on Brunker’s lawyers because they pressed to get the information they believed necessary to properly represent their client.

For example, the lawyers asked for records on whether Schawn disciplined other employees who failed to follow its dress code or to keep accurate route books (some of the reasons give for the discharge).

A request to see co-employees personnel files in order to prove unequal  treatment or whether what the company is stating is true (pretext) is quite standard, but in this case the lawyers were sanctioned for making it.

The Court of Appeals reversed, holding that the information was relevant to Brunker’s disparate treatment claim since it related to the even handedness of the company’s expectations.

The Court also criticized the company’s lawyers for refusing to produce the requested documents and then using them to support their defense.

The Court said:

Indeed Schwan's went further than merely raising an issue it had previously argued was irrelevant.

It faulted Brunker for failing to identify any route manager who had “similar performance issues” and was treated more favorably.

And Schwan's also discussed the route manager who was terminated for failing to service customers, despite Schwan's successful opposition to Brunker's request for his personnel file.

Similarly,  Schwan denied the relevance of the personnel file of another former employee, Mike Devereaux, but then used parts of that file in the summary judgment reply.

Through its actions, Schwan’s concedes that the bulk Brunker’s requests were substantially justified. We therefore vacate the award of sanctions.

 Conclusion

This case is a great win for both Mr. Brunker and his lawyers. He obviously had grounds to bring a case claiming that he was terminated because of his disability – and every right to have that case heard by a jury.

As far as the lawyers go, it’s always very difficult to get companies to produce the documents we need to prove our cases. Companies control the records in these cases and they do not give them up easily even when they are plainly relevant.

At the same time there is no doubt that lawyers representing employees have to get those documents both to support our clients claims and test the employers' defenses. It's simply a battle that must be fought.

The fact that these lawyers were punished for doing what they needed to do for proper representation of their client is plainly wrong. Fortunately, the Seventh Circuit Court of Appeals agreed.

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Cancer Victim Wins Discrimination Case

Posted on February 18, 2009 by Ellen Simon

Three cheers for the Third Circuit Court of Appeals. In Eshelman v. Agere Systems, Inc., the Court issued a much needed opinion in favor of a cancer victim under the American with Disabilities Act . 

While it might seem obvious to some that discriminating against people who have cancer is against the law, it’s not all that obvious to most courts.

I represented a woman named Christine Hood several years back who was fired for going to chemotherapy treatments. Though it sounds outrageous to most, both the trial court and the court of appeals threw out the case finding that Chris was not protected under the law (the Ohio anti-discrimination statute).

The case, Hood v. Diamond Products, Inc. went all  the way to the Ohio Supreme Court which ultimately found that yes indeed, "cancer could be considered a handicap."  The decision allowed Ms. Hood to have her day in court and proceed with her claim (it took ten years). So while it saddened me to see that cancer victims are still fighting for their right to be protected from discrimination, it warmed my heart to read about this recent victory. 

Joan Eshelman was a twenty year employee diagnosed with and treated for breast cancer. As a side effect of her chemotherapy Eshelman suffered  a cognitive dysfunction resulting in short term memory loss.To compensate, she carried a notebook  and also made arrangements for help with appointments which required driving.

With these adjustments, the parties agreed that she excelled at her job and she continued to receive outstanding performance evaluations. In spite of her strong record, Eshelman was selected for layoff  during a company restructuring in 2001.

Eshelman sued under the American with Disabilities Act. She didn’t allege that she was disabled, but instead claimed that she  was terminated  based on her employer’s belief that she was disabled, or because of her record of disability. The jury found in her favor and awarded $170,000 in back pay and $30,000 in compensatory damages in 2005. On appeal, the Third Circuit affirmed the verdict on January 30,2009.

Because Bailey's testimony afforded the jury a sufficient basis to conclude that Agere slated Eshelman for termination based on its perception -- whether accurate or not -- that her cancer-related memory problems rendered her unfit for any job . . . we must not disturb the verdict insofar as it is based on  a "regarded as" disabled theory.

Even though laws prohibiting disability discrimination have been around since 1974, it’s still really tough for cancer victims to fight prejudice in the workplace. The New York Times reported today that cancer surviviors are 37 percent more likely to be unemployed than healthy peers. That’s why this new Third Circuit decision is such an important case. People with cancer are often discriminated against but are unable to meet the requirement of permanent disability under the ADA and a result their cases are often dismissed. The ADA prohibits discrimination of those “regarded as” having a disability, or having “a record of” a disability in addition to those individuals who are actually disabled.

This case sets forth a clear and well reasoned decision for cancer victims seeking to challenge discriminatory employment decisions which affect their lives. The new ADA amendments should also help.

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Merchandise Must be Accessible to Disabled

Posted on February 15, 2009 by Ellen Simon

There was an interesting decision recently which affected the rights of the disabled: Californians for Disability Rights v. Mervyn's,LLC , that didn’t get the attention it deserved.   

An organization representing disabled individuals (Californians for Disability Rights) sued a retailer  (Mervyn's) claiming that its store violated the American with Disabilities Act and California state law. Disabled shoppers, the suit claimed, were unable to reach the merchandise because of the narrow pathways and the way in which the merchandise was displayed.

The Court of Appeals held that since a retail store was a place of public accommodation under the ADA, the store was required to remove architectural barriers and make its goods and services available to the disabled. The Court also noted that the store failed to provide adequate customer service as an alternative method of making the merchandise accessible.

According to Sid Wolinsky, one of the lawyers for the advocacy group representing the plaintiffs, as reported in the San Francisco Chronicle last July:

"It means that every retail establishment that is newly built or substantially remodeled in the last 15 years - from 1993 on, the date of the Americans with Disability Act - must comply with regular building standards," said Wolinsky. "They have to provide accessible aisles.'"

While Mervin's said that this decision might force it to close stores and announced bankruptcy the day before the ruling,  this is nevertheless an important decision for disabled Americans and one that all retailers need to pay attention to.

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Doctor Who Fails to Provide Patient with Interpreter Gets Whacked

Posted on January 11, 2009 by Ellen Simon

Doctors and hospitals got a sharp reminder about their need to provide interpreters for hearing impaired patients. 

A  Hudson County New Jersey jury awarded $400,000 to Irma Gerena who claimed that she was unable to participate in and understand her medical condition in violation of the Americans with Disabilities Act and the New Jersey Law Against Discrimination when her physician,  Dr. Robert Fogari, failed to provide her with an interpreter.The verdict was reported in the New Jersey Law Journal last October.

According to the story, the plaintiff Irma Gerena was being treated for lupus. During the multiple office visits with her rheumatologis, Gerena, who had limited English skills and was deaf, claimed that she was unable to understand what her doctor was doing including :

  • the treatment she was receiving,
  • its risks or benefits,  and
  • what alternative approaches may have been available.

Gerena repeatedly requested an American Sign Language interpreter and gave Dr. Fogari an interpreter’s business card. She also had the interpreter call the doctor and explain the law to him.

Dr. Fogari claimed that he could not afford the interpreter’s charge of $150 to $200 and hour since he was only being reimbursed $49 per visit Gerena’s medical insurer. The jury sided with Gerena.

A previous New Jersey decision Borngesser v. Jersey Shore Medical Center held that the law’s requirement of “auxiliary aids and services " meant that "interpreters, video displays and note takers" may be necessary for “effective communication” during critical points of a patient’s care.

Doctors and hospitals need to be prepared to provide interpreters and patients need to be educated as to their rights to request them. The law provides that patients with severe hearing impairments should not be precluded from understanding and participating in their medical care and treatment as a result of their disability. 

Physicians who recklessly disregard the law or retaliate in the face of a patent's request may face a stiff penalty. Of the $400,000 jury award to Gerena, $200,000 was for punitive damages -- so doctors beware -- there's more to come.

Image: http://digestive.niddk.nih.gov/ddiseases/pubs/ibs_ez/images/drnpatient.jpg

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