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NEW EMPLOYEE RIGHTS AND NEW EMPLOYER RESPONSIBILITIES THE Powered By Docstoc
					2010 NEW EMPLOYEE RIGHTS AND NEW EMPLOYER
   RESPONSIBILITIES: THE ADA, ENDA, SEXUAL
      ORIENTATION ISSUES, PRIVACY IN THE
                  WORKPLACE
       Labor & Employment Law Section Program




                     Moderator:

                Michael P. Maslanka

                      Panelists:

                 Katherine Butler
                   Dan Dargene
                   Valorie Glass
                John W. Griffin, Jr.
                  Robert Sheeder
                   Robert Wiley



             Thursday, June 10, 2010
              1:30 p.m. – 3:15 p.m.
                             MICHAEL P. MASLANKA
                                FORD & HARRISON LLP
                                  1601 ELM STREET, SUITE 4450
                                     DALLAS, TEXAS 75201
                                          (214) 256-4700
                                       (214) 256-4701 (FAX)
                                  mmaslanka@fordharrison.com
                               EDITOR, TEXAS EMPLOYMENT LAW LETTER
                             COLUMNIST, TEXAS LAWYER, “WORKMATTERS”
                            PODCASTER, “MIKE MASLANKA @ YOUR DESK”
                        (WWW.LAW.COM/JSP/TX/SPECIALS.JSP?P=TLPODCASTS#AUDIO)


                                          BIOGRAPHY


Michael P. Maslanka is the Managing Partner of the Dallas office of Ford & Harrison. Maslanka
works with employers to simplify their issues; to quickly understand their options; and to
effectively manage their workforces.

Maslanka has tried a number of cases to verdict, including four recent trials, ranging from
employee raiding to fraudulent inducement, and has tried 10 age discrimination cases to verdict.

He is editor of the Texas Employment Law Letter, founded in 1990 and subscribed to monthly by
over 1,800 Texas employers. Chambers USA, a rating guide for lawyers, describes him as
“intellectually fertile” and notes his “holistic” approach to clients and their needs. He has written
two books in the Maslanka Field Guide Series, Maslanka’s Field Guide to the FMLA and
Maslanka’s Field Guide to the FLSA, both published by American Lawyer Media.

He is Board Certified in Labor and Employment Law by the Texas Board of Legal
Specialization. You can follow him at his blog, www.texaslawyer.typepad.com/work_matters;
or, on Twitter, www.twitter.com/worklawyer.
                                      Katherine L. Butler
                                        Butler & Harris
                                    1007 Heights Boulevard
                                     Houston, Texas 77008
                                        (713) 526-5677
                                    kathy@butlerharris.com

Education:

       B.A. in Public Policy Sciences, Duke University, 1976
       J.D., The University of Houston, 1981 (Order of the Barons)

Professional Activities:

Partner, Butler & Harris, 1988 to present.

Board Certified, Civil Appellate Law, Texas Board of Legal Specialization

Chair, State Bar of Texas Labor & Employment Section

President, Texas Employment Lawyers Association

Fellow, College of Labor & Employment Lawyers

Law Clerk to The Honorable Reynaldo Garza, Judge of the U.S. Court of Appeals for the Fifth
Circuit, 1981-83.

Admitted to Practice before the U.S. Supreme Court, the Supreme Court of Texas, U.S. Courts of
Appeal for the Second, Fifth, Sixth and Eleventh Circuits. and U.S. District Courts for the
Southern, Northern, and Western Districts of Texas.

Member, State Bar of Texas, Houston Bar Association, American Constitution Society, Texas
Employment Lawyers Association, and National Employment Lawyers Association.

Selected Speaking Engagements: The ADA Amendments Act, 26th Annual Midwest Employment
Law Institute (2009); Federal Disability Law: Brighter Days Ahead, American Diabetes
Association Fighting for Fairness Conference (2009); Employment Torts, University of Houston
Employment Law Course (2008); Making Your Case Summary Judgment Resistant, NELA
Annual Convention (2008), Title VII Update, 25th Annual Midwest Employment Law Institute
(2008); Age Discrimination Update, State Bar Annual Employment Law Course (2008);
Disability Law Update, 24th Annual Midwest Employment Law Institute (2007); The Similarly
Situated Conundrum, NELA Annual Convention (2007); Employment Torts, University of
Houston Employment Law Seminar (2007); Effective Legal Writing, State Bar Advanced
Employment Law Course (2007); Emerging Causes of Action, University of Texas Employment
Law Course (2007); Damages in Employment Cases, State Bar Annual Employment Law Update
(2007); Jury Trials in Employment Cases, Houston Bar Association Labor & Employment Law
Section (2006); Update on Title VII Law, State Bar Labor & Employment Law Section
Conference (2006); Who Is An Employee for Liability Purposes?, State Bar Advanced
Employment Law Course (2006); Developments in ADA Law, 23nd Annual Midwest
Employment Law Institute (2006).
                                                                                                           8117 Preston Road
                                                                                                        700 Preston Commons
                                                                                                            Dallas, TX 75225
                                                                                                     Telephone: 214.987.3800
                                                                                                      Facsimile: 214.987.3927
                                                                                            dan.dargene@ogletreedeakins.com



                                                  Dan C. Dargene
                                                  Mr. Dargene is Board Certified by the Texas Board of Legal Specialization in Labor
Practice Areas:                                   and Employment Law and is a Shareholder in the Dallas, Texas office of the national
                                                  labor and employment law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Labor Relations, Wage and Hour Law,               The firm concentrates its practice in the representation of management in labor,
Employment Litigation, Employment Law
Employment Agreements
                                                                                                                            s
                                                  employment and personnel matters. Mr. Dargene received his bachelor’ degree
                                                  from the University of Notre Dame. Mr. Dargene received his law degree from
                                                  Southern Methodist University Dedman School of Law, where he was elected to the
Education:                                        Order of Barristers.
J.D., Southern Methodist University Dedman
   School of Law, 1981                            From 2003 through 2009, Texas Monthly magazine recognized Mr. Dargene as a
B.A., The University of Notre Dame, 1978          “                   in
                                                   Texas Super Lawyer” labor. He is also listed in Best Lawyers in America, and as
                                                  a D Magazine “ Lawyer” labor and employment law.
                                                                Best        in
Admitted to Practice:
                                                  Mr. Dargene has extensive experience litigating employment matters in state and
State of Texas                                    federal courts throughout the United States. He has defended employers in cases
U.S. District Court for the Northern, Southern,   arising under Title VII, state discrimination statutes, the Americans with Disabilities
   Eastern and Western Districts of Texas
U.S. Court of Appeals –Fifth, Seventh,            Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act, and
Eighth, and Tenth Circuits                        the Family Medical Leave Act, as well as defended against state law causes of action
U.S. Supreme Court
                                                  such as wrongful discharge, defamation, intentional infliction of emotional distress,
                                                  and negligent hiring and supervision. Mr. Dargene has experience defending
Professional Activities:                          discrimination class actions under Title VII, and collective actions arising under the
                                                  Fair Labor Standards Act. Mr. Dargene also has broad experience litigating disputes
Officer, State Bar of Texas –Labor and
   Employment Law Section
                                                  pertaining to restrictive employment covenants, such as covenants not to compete,
Texas Bar Association - Labor and                 non-solicitation covenants, and covenants prohibiting the disclosure of trade secrets
   Employment Section                             and confidential information. Mr. Dargene has obtained summary judgments or
Dallas Bar Association - Labor and
   Employment Section                             dismissals on behalf of clients in dozens of cases filed in state and federal courts, and
Member, Texas Association of Business,            he has successfully defended those decisions in the appellate courts. Mr. Dargene
   Employer Relations Committee                   also has extensive trial experience in both state and federal court.

Position:
                                                  Mr. Dargene has considerable experience counseling employers regarding human
                                                  resource problems and strategies, including discipline matters, termination decisions,
Shareholder                                       employment contracts, arbitration agreements, and wage-hour law compliance. A
                                                                                   s
                                                  significant part of Mr. Dargene’ practice is also devoted to management training
                                                  and drafting human resource policies and procedures. Mr. Dargene has experience in
                                                  traditional labor matters as well. He has counseled clients in union elections and
                                                  campaigns, conducted union avoidance training, arbitrated myriad matters pursuant
                                                  to collective bargaining agreements, and litigated several unfair labor practice
                                                  charges before administrative law judges pursuant to the National Labor Relations
                                                  Act. Mr. Dargene is a member of the State Bar of Texas and the Dallas Bar
                                                  Association.


                                                  7640896.1 (OGLETREE)
                                     ATLAS & HALL, L.L.P.
Website: www.atlashall.com               ATTORNEYS AT LAW                          STARR COUNTY OFFICE
                                                                                  200 N. BRITTON AVENUE
VALORIE C. GLASS                         P.O. BOX 3725 (78502-3725)         RIO GRANDE CITY, TEXAS 78582
BOARD CERTIFIED
LABOR AND EMPLOYMENT LAW                     818 W. PECAN BLVD.                      TEL. (956) 488-1896
TEXAS BOARD OF LEGAL SPECIALIZATION                                                  FAX: (956) 488-6482
vcglass@atlashall.com                       MCALLEN, TEXAS 78501
                                   TEL. (956) 682-5501 FAX (956) 686-6109

                                      VALORIE C. GLASS
                                  BIOGRAPHICAL INFORMATION

        Ms. Glass' practice is concentrated in the labor and employment area, dealing
        primarily with litigation matters on behalf of management. She sits on the State
        Bar of Texas Labor and Employment Council and is a frequent contributor and
        speaker at various labor and employment courses.

AREAS OF PRACTICE:

        Labor and Employment Litigation
        School Law
        Commercial and Class Action Lawsuits

CERTIFICATION/SPECIALTIES:

        Board Certified, Labor and Employment Law, Texas Board of Legal Specialization

BAR ADMISSIONS:

        Texas, 1992
        U.S. District Court Southern District of Texas, 1992
        U.S. Court of Appeals 5 th Circuit, 2006
        U.S. District Court W estern District of Texas, 2006

EDUCATION:

        B.A. with honors, University of Texas - Austin
        M.Ed., Pan American University
        J.D. with honors, University of Texas - Austin
        The Review of Litigation, Associate Editor

PROFESSIONAL ACTIVITIES:

        Partner, Atlas & Hall, L.L.P.
        Vice Chair - State Bar of Texas Labor & Employment Section 2009-2010; Secretary
        2008-2009; Member 2002-present
        State Bar of Texas Disciplinary Rules of Professional Conduct, Member 2009-2010
        Intern, Texas Supreme Court Justice Nathan Hecht

PROFESSIONAL MEMBERSHIPS:

        American Bar Association, Member
        Hidalgo County Bar Association, Member
        Hidalgo County Bar Association, Labor & Employment Section, Co-Chair
        Texas Association of Defense Counsel, Member
        Defense Research Institute, Member
        College of State Bar, 2000-Present
        Texas Super Lawyer 2003 - 2009
        Outstanding Volunteer - Hidalgo County Bar 2003-2005
                                  JOHN W. GRIFFIN, JR.
       Office:                                                         Home:
       Marek, Griffin & Knaupp                                         507 South DeLeon
       203 N. Liberty Street                                           Victoria TX 77901
       Victoria, Texas 77901
       Post Office Box 2329                                            (361) 573-1069
       Victoria, Texas 77902
       (361) 573-5500
       Email: jwg@lawmgk.com

                                            Biography
        John Griffin, 52, is from Victoria, Texas. A successful advocate in both trial and appellate
courts, Griffin is a member of the American Association for Justice, the National Employment
Lawyers Association, Texas Employment Lawyers Association, the American Bar Association, and
the American Diabetes Association Legal Advocacy Subcommittee. He is also a member of the
College of The State Bar of Texas and the Texas Center for Legal Ethics and Professionalism. On
May 16, 2002, he was appointed to the Disability Issues Committee of the State Bar of Texas and
served in that capacity until May, 2006. He also serves on the Board of Directors of the Texas
Employment Lawyers Association.

        Atrial lawyer, Griffin has tried more that 60 cases to a jury and has argued more than 20 cases
to federal and state appellate courts. He serves on the Pattern Jury Charges: Business, Consumer,
Insurance and Employment Committee in Texas and the Fifth Circuit Labor & Employment Law
Pattern Jury Charge Advisory Committee. He successfully persuaded the Fifth Circuit Court of
Appeals to revisit its blanket exclusion of people with insulin treated diabetes from employment,
in Kapche vs. City of San Antonio, 304 F.3d 493 ( 5th Cir. 2002) He also lectures on employment
law, dramshop litigation, and legal ethics. He is board certified in Civil Trial Law, Personal Injury
Trial Law, and Consumer and Commercial Law by the Texas Board of Legal Specialization.

        Born in Port Lavaca, Texas, he is a graduate of Austin College and The University of
Missouri Law School. He serves as managing partner of Marek, Griffin & Knaupp, a law firm with
offices in Victoria and Port Lavaca, Texas.



                                EDUCATIONAL BACKGROUND

Graduated from Calhoun High School, Port Lavaca, Texas, 1974.
Bachelor of Arts in Political Science received from Austin College, Sherman, Texas, 1978.
President, Austin College Law Society, 1978.
Juris Doctor Degree, University of Missouri School of Law, Columbia, Missouri, 1981.
                    EMPLOYMENT AND LEGAL CERTIFICATIONS

Managing Partner: Marek, Griffin & Knaupp, (formerly Houston, Marek & Griffin, L.L.P.)
203 N. Liberty Street, Victoria, Texas 77901        (1989-present).
Partner: Griffin & Griffin, Attorneys at Law (1983-1989)
Staff Attorney: Comptroller of Public Accounts, Bob Bullock (1981-1983)
Board Certified: Personal Injury Trial Law, Texas Board of Legal Specialization
                   Civil Trial Law, Texas Board of Legal Specialization
                   Consumer and Commercial Law, Texas Board of Legal Specialization

                      COMMUNITY AND LEGAL INVOLVEMENT

Board of Directors, American Diabetes Association
President - Victoria Bach Festival Association, 1994-1996, 2008-2009
First United Methodist Church, Numerous Boards
Victoria Chamber of Commerce, 1984-Present
Chair, American Diabetes Association Legal Advocacy Committee 2006-2008
State Bar of Texas Disability Issues Committee 2004-2006
College of the State Bar of Texas
Chairman, Victoria County Democratic Party 1986-1990 and 1999-2006
Texas Bar Foundation
Texas Center for Legal Ethics and Professionalism
Board of Directors, Texas Employment Lawyers Association
Fifth Circuit Labor & Employment Law Pattern Jury Charge Advisory Committee
State Bar Pattern Jury Charges Committee: Business, Consumer, Insurance & Employment
Frequent author and presenter at CLE events and contributor to Trial Magazine
State Bar of Texas Labor and Employment Council

                                       PERSONAL

Married October 1, 1983 to Lynn Knaupp, Board Certified in Family Law, T.B.L.S.
Children: Cora, age 20; Ruth, age 18; Sarah, age 18
                       Bob Sheeder

                       Partner
                       Dallas                                          Assistant
                       T: 214.758.1643                                 Camille Leonard
                       F: 214.758.8340                                 214.758.1609
                       E: robert.sheeder@bgllp.com
Related Practices
Labor and Employment
                       In private practice since 1976, Bob Sheeder represents management in all aspects of
Litigation
                       labor and employment law before federal and state agencies and courts. His practice
                       includes litigation and counseling of management on areas including discrimination,
                       harassment, collective actions and class actions, union organizing and wage-hour
                       issues.

                       Mr. Sheeder is a frequent lecturer and writer on labor law issues. He previously served
                       as Editor-in-Chief of the Texas Labor Letter. For over five years he has been on the
                       Faculty of the Jury Trials of Employment Claims Course and has participated in the
                       Advanced Course. He is a charter member of the Management and Employment Law
                       Roundtable. He also is a Fellow in the College of Labor and Employment Lawyers.

                       Mr. Sheeder served as Chair of The University of Texas Law School 2006 Annual
                       Course on Developments in Labor and Employment Law and has frequently spoken at
                       the course.

                       Representative Matters
                       Represented Towers Perrin, a third party administrator in Milofsky v. American
                       Airlines, Inc., 404 F.3d 338 (5th Cir. 2005) in which the Fifth Circuit Court of Appeals
                       upheld the dismissal of Towers Perrin in an ERISA class action.

                       Represented the defendants in Shephard v. Worldcom, a nationwide benefits class
                       action in which the United States District Court of the Southern District of Texas
                       granted summary judgment.

                       Represented a major manufacturer in a multiparty sex discrimination trial in state court
                       in Fort Worth, Texas, in which the court granted a directed verdict for the defendant
                       employer after several weeks of trial.

                       Negotiated the closing and relocation of a Fortune 500 manufacturer's union
                       represented production facility in Richardson Texas, and successfully defended
                       multiple related unfair labor practice charges and a prolonged Unit Clarification trial
                       before the National Labor Relations Board.

                       Successfully defended a Fortune 500 corporation in a race discrimination class action
                       in the Northern District of Texas, in which the Court denied class certification and
                       subsequently granted summary judgment against the named plaintiffs.

                       Successfully defended one of the first Sarbanes-Oxley cases in Texas.

                       Publications and Speeches
                       "Collective Actions Under the Fair Labor Standards Act," University of Texas, May 29,
                       2009.

                       "Wage and Hour Collective Actions," State Bar of Texas Webcast, Austin, Texas,
November 27, 2007.

Jury Trial Litigation of Employment Claims, Hilton Head, South Carolina on August 5-
7, 2002; San Diego, California on August 22-24, 2002; La Costa, California on August
22-24, 2003; Las Vegas, Nevada on October 14-15, 2004; Napa, California on
November 11-12, 2004; Los Angeles, California on June 2-3, 2005; Napa, California
November 14-15, 2005; Las Vegas, Nevada December 8-9, 2005; San Antonio, Texas
September 21-22, 2006; Las Vegas, Nevada October 4-5, 2007 and December 6-7,
2007.

"Discrimination Law Update," Texas Association of Business 29th Annual Employment
Relations Symposium, San Antonio, Texas, July 12-13, 2007.

"Retaliation After Burlington Northern," University of Texas, May 17, 18, 2007.

"Advanced Jury Trials of Employment Claims," Las Vegas, Nevada, September 7-8,
2006; May 24-25, 2007.

Chairman and Moderator, University of Texas Conference on Labor and Employment
Law, Austin, Texas, May 18-19, 2006.

"Opening Statements in Jury Trials," State Bar of Texas Annual Advanced
Employment Law Course, Austin, Texas, February 20-21, 2003; "Jury Selection," San
Antonio, Texas, January 22-23, 2004; Planner and Moderator, Houston, Texas
November 3, 2005.

"Hiring and Firing Employees and Controlling Rogue Supervisors," University of Texas
Conference on Labor and Employment Law, Austin, Texas, May 18-20, 2005.

"Legal Pitfalls in Hiring Employees," The Labor and Employment Law Advanced
Practices Symposium, San Diego, California, November 4-5, 2004.

"Sarbanes Oxley Act Update," University of Texas Annual Conference on Labor and
Employment Law, Austin, Texas, May 2004.

"Harassment Update," Texas Association of Business 26th Annual Employment
Relations Symposium, San Antonio, Texas, July 29-30, 2004.

"Expert Witnesses in Employment Litigation," University of Texas Conference on
Labor and Employment Law, Austin, Texas, May 2003.

"Contingent Workforces: Are Contingent Workers Worth the Risks?" University of
Texas Conference on Labor and Employment Law, Austin, Texas, May 2002.

"Class Actions in Employment Cases," University of Texas Conference on Labor and
Employment Law, Austin, Texas, May 2001.

Education
J.D., cum laude, University of Michigan Law School, 1976
B.A., with high honors, University of Virginia, 1973

Bar Admissions
Texas

Court Admissions
U.S. Supreme Court
U.S. Court of Appeals for the 5th Circuit
U.S. District Court for the Northern, Southern, Eastern and Western Districts of Texas

Board Certifications
Board Certified in Labor and Employment Law by the Texas Board of Legal
Specialization
Affiliations
State Bar of Texas, Labor and Employment and Employment Law Section, Executive
Council Labor and Employment Law Section 2002 to present
American Bar Association, Labor and Employment Law Section
College of Labor and Employment Lawyers, Fellow

Noteworthy
Chambers USA: America's Leading Lawyers for Business, Labor & Employment,
2003-2009
Super Lawyers, Corporate Counsel Edition, 2008 and 2009
Texas Monthly Magazine, Top 100 Lawyers in Texas, 2006 and 2008
Texas Super Lawyers, 2003-2008
Best Lawyers in America, 1999-2010
                                       Rob Wiley

Mr. Wiley founded the law office of Robert Wiley, P.C. in March 2000. Mr. Wiley is
Board Certified in Labor and Employment Law by The Texas Board of Legal
Specialization. Mr. Wiley is licensed to practice law in Texas, California, and
Washington, D.C. Mr. Wiley is admitted to practice before a number of federal courts
including the United States Supreme Court, the Fifth Circuit Court of Appeals, the
Northern, Eastern, Southern, and Western Districts of Texas, and the District of
Colorado.

Mr. Wiley graduated from Vanderbilt University and Tulane Law School, with honors.
Mr. Wiley is a frequent speaker on Labor and Employment Law, and has moderated
and presented at training in Chicago, Puerto Rico, Dallas, San Antonio, Oaxaca
(Mexico), and Merida (Mexico).

Mr. Wiley is a member of various bar associations, including the National Employment
Lawyers Association, Texas Employment Lawyers Association, and California
Employment Lawyers Association.

 
                            ADA AMENDMENTS ACT AND
                        REASONABLE ACCOMMODATION ISSUES
I.   THE ADA AMENDMENTS ACT OF 2008

     A. Introduction

On September 25, 2008, President Bush signed the ADA Amendments Act (ADAAA). The ADAAA,
which was a bi-partisan effort, overrode a variety of Supreme Court rulings interpreting Title I of the ADA
of 1990. The ADAAA will result in a broader application of the ADA. Many of the changes mandated by
the ADAAA have significant implications for employers, from the definition of "major life activities" to
prohibiting employers from considering most mitigating measures in determining whether an applicant or
employee's impairment "substantially limits" a major life activity. Effective January 1, 2009, the ADAAA
will require many employers to re-evaluate and revise their current ADA policies and procedures,
particularly with respect to accommodation.

        1.   Why Congress Amended the ADA

As the preamble to the ADAAA explains, when the ADA was passed in 1990, Congress intended that the
prohibition on discrimination in employment because of an individual's disability be broadly applied. The
original law, like the ADAAA, defines disability as a physical or mental impairment that "substantially
limits" one or more "major life activities," and provides covered individuals with the right to a reasonable
accommodation of their disability. Both laws also cover individuals with "a record of such impairment" or
who are "regarded as" having such impairment.

The original law, however, was the subject of much litigation surrounding such terms as "substantially
limits" and "major life activities." In a series of decisions interpreting the meaning of those terms, the
Supreme Court narrowly construed the language and, in doing so, restricted the types of impairments
covered by the law.

For many years, disability rights advocates, as well as some members of Congress, have complained about
the Supreme Court's strict interpretation of the statute and have sought to undo those judicial rulings.
Through a bi-partisan agreement, with input from the business community, amendments where enacted
under the ADAAA.

        2.   How the Amendments Change the ADA

The ADAAA makes clear that it intends to provide "a broad scope of protection" to individuals with
disabilities. Toward this end, the ADA, as amended:

             a.   Retains the basic three-part definition of "disability":

                  (1) a physical or mental Impairment that substantially limits one or more major life
                      activities;

                  (2) a record of such an impairment; or

                  (3) being regarded as having such an impairment.

             b.   However, the ADAAA changes the definitions of some of the terms used in the definition
                  of "disability" to provide broader coverage to individuals:
                                                     1
(1) Major Life Activities:

    (a) The ADAAA expands the definition of "major life activities" to include a list of
        activities ("caring for oneself, performing manual tasks, seeing, hearing, eating,
        sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
        reading, concentrating, thinking, communicating, and working")

    (b) The term now also includes "major bodily functions" (including, but not limited
        to, "functions of the immune system, normal cell growth, digestive, bowel,
        bladder, neurological, brain, respiratory, circulatory, endocrine, and
        reproductive functions").

    (c) Under this definition, a whole host of impairments previously excluded from
        ADA coverage, and which may not have a direct relationship to the activity of
        working, could now fall within its purview, such as insomnia (impaired in the
        major life activity of sleeping), dyslexia (learning), stuttering (speaking), and
        attention deficit disorder (concentrating), as long as the impairment is
        "substantially" limiting.

(2) Substantially Limits:

    (a) Congress indicated in the ADAAA that the current EEOC ADA regulations
        defining the term "substantially limits" as "significantly restricted" are
        inconsistent with Congressional intent, by expressing too high a standard.

    (b) Congress also found that the Supreme Court, in the case of Toyota Motor
        Manufacturing, Kentucky, Inc. v. Williams, interpreted the term "substantially
        limits" to require a greater degree of limitation than was intended by Congress.

    (c) Therefore, one of the purposes of the ADAAA was to reject those standards.

        (i) Congress rejected the Supreme Court's holding "that the terms 'substantially'
            and 'major' in the definition of disability under the ADA 'need to be
            interpreted strictly to create a demanding standard for qualifying as
            disabled,' and that to be substantially limited in performing a major life
            activity under the ADA 'an individual must have an impairment that
            prevents or severely restricts the individual from doing activities that are of
            central importance to most people’s daily lives.'"

        (ii) The amendments require courts to liberally interpret the term "substantially
             limits" ("to the maximum extent permitted" by the Act).

        (iii) The ADAAA states that Congress expects the EEOC to "revise that portion
              of its current regulations that defines the term 'substantially limits' as
              'significantly restricted' to be consistent with this Act, including the
              amendments made by this Act."

        (iv) In rejecting the House's version of the legislation that defined "substantially
             limits" as "materially restricts," the Senate concluded that "adopting a new,
             undefined term that is subject to widely disparate meanings is not the best
             way to achieve the goal of ensuring consistent and appropriately broad
                                 2
             coverage under [the ADAAA]." The better way, the Senate opined, is to
             "express disapproval of Sutton and Toyota (along with the current EEOC
             regulation)," to retain the words substantially limits, and to clarify that "it is
             not meant to be a demanding standard." The Senate further concluded that
             using the correct standard—one that is lower than the strict or demanding
             standard created by the Supreme Court in Toyota, "will make the disability
             determination an appropriate threshold issue but not an onerous burden for
             those seeking accommodations or modifications."            154 Cong. Rec. at
             S8342, S8346 (daily ed. Sept. 11, 2008) (remarks from Statement of
             Managers).

        (v) To help ensure an expansive construction of "substantially limits," the
            ADAAA, with only one significant exception, now prohibits an employer
            from considering the ameliorative effects of mitigating measures, such as
            medication, on an individual's impairment.

             1) For example, in determining whether an applicant or employee with a
                heart condition or diabetes is "disabled" within the meaning of the
                statute and therefore entitled to a reasonable accommodation, an
                employer may no longer consider if, or to what extent, medication
                diminishes or controls the impairment.

             2) Other mitigating measures that may not be considered include
                prosthetics, hearing aids and assistive technology.

             3) Hence, an individual who would qualify for protection under the statute
                absent any of these mitigating measures now is covered.

        (vi) The ADAAA does contain one important exception to the elimination of
             mitigating measures as a consideration, and that is for "ordinary eye glasses
             or contact lenses to correct poor vision."

             1) However, the ADAAA cautions that an employer may not use
                qualification standards, employment tests, or other selection criteria
                based on an individual’s uncorrected vision unless the standard, test, or
                other selection criteria, as used by the employer, is shown to be job-
                related for the position in question and consistent with business
                necessity.

(3) Impairments that are episodic or in remission:

    (a) The amendments broaden the definition of "disability" to include impairments
        that are episodic or in remission if they would substantially limit a major life
        activity when the condition is active.

        (i) For example, an individual with epilepsy who experiences seizures that
            result in the short-term loss of control over major life activities, including
            major bodily functions (e.g., uncontrollable shaking, loss of consciousness)
            or other major life activities (e.g., ability to communicate, walk, stand,


                                  3
            think) has a disability under the ADA even if those seizures occur daily,
            weekly, monthly, or rarely.

        (ii) This rule of construction, according to HR Rep. 110-730:

            1) Rejects the reasoning of the courts in cases like Todd v. Academy Corp.
               where the court found that the plaintiff’s epilepsy, which resulted in
               short seizures during which the plaintiff was unable to speak and
               experienced tremors, was not sufficiently limiting, at least in part
               because those seizures occurred episodically; and

            2) Similarly rejects those decisions where the courts have discounted the
               impact of an impairment that may be in remission as too short-lived to
               be substantially limiting.

            3) According to HR Rep. 110-730, it is "expected that individuals with
               impairments that are episodic or in remission (e.g., epilepsy, multiple
               sclerosis, cancer) will be able to establish coverage if, when active, the
               impairment or the manner in which it manifests (e.g., seizures)
               substantially limits a major life activity."

(4) Regarded As Having a Disability

    (a) The amendments clarify that under the "regarded as" prong, an employer need
        only perceive that the individual has a physical or mental impairment

        (i) This change overrides court decisions requiring a plaintiff to show that the
            employer regarded him or her as being substantially limited in a major life
            activity.

    (b) The amendments, however, also restrict the coverage of individuals who are
        "regarded as" having a disability by making that term inapplicable to individuals
        with a "minor" and "transitory" condition (e.g., a condition that lasts, or is
        expected to last, six months or less).

    (c) House Report 110-730 indicates that:

        (i) "This exception for claims at the lowest end of the spectrum of severe
            limitations was deemed necessary under the 'regarded as' prong of the
            definition because individuals seeking coverage under this prong need not
            meet the functional limitation requirement contained in the first two prongs
            of the definition;" and

        (ii) That "this limitation on coverage should be construed narrowly."

    (d) Further, individuals "regarded as" having a disability are not entitled to
        accommodations.

(5) The amendments also eliminate doubts raised by the Supreme Court concerning the
    Equal Employment Opportunity Commission's authority under the ADA to develop
    and implement binding regulations.
                                 4
                        (a) The ADAAA expressly directs the EEOC to define "substantially limits" in a
                            manner consistent with the Act, which means that it will be significantly
                            broadened.

                    (6) The amendments also ban lawsuits by individuals who do not have a disability for
                        "reverse disability discrimination."

                    (7) The ADAAA extends the changes contained therein to the Rehabilitation Act, which
                        prohibits disability discrimination by the federal government, federal contractors and
                        in federally-funded programs.

    B. Impact of the ADAAA

Considering the ADAAA's broad coverage mandate, the expanded definition of "major life activity," the
virtual elimination of mitigating measures and the easing of the burden of plaintiffs to meet the "regarded
as having a disability” standard, it is conceivable that there will be a surge in disability discrimination
claims filed with the EEOC and the courts. It also likely that more disability claims will continue to trial
before a jury since disputes over whether a particular impairment "substantially limits" a "major life
activity" under the new law or whether an employer "reasonably accommodated" a disability often involve
disputed questions of facts.

    C. Employer Actions in Response to the ADAAA

          To minimize exposure to such disability discrimination claims, it is recommended that employers
should:

•      Undertake a thorough review of all relevant policies, job descriptions, and hiring documents and
procedures;

•         Focus attention on job performance and employee conduct;

•         Develop, implement and publish to employees, a reasonable accommodations policy;

•      Focus attention on the interactive process used to address applicant or employee requests for
reasonable accommodations;

•      Evaluate a request for accommodation without consideration of mitigation measures (except
eyeglasses and contacts);

•         Promptly address applicant and employee requests for accommodation under the ADA;

•         Engage in a thorough interactive process in response to accommodation requests; and

•      Document the interactive process, all potential accommodations considered, and all offers of
reasonable accommodation.




                                                     5
II. CONSIDERATION OF MITIGATING MEASURES IN DETERMINING DISABILITY

    A. Post ADAAA Decisions on Mitigating Measures

         1.   Fifth Circuit Holds that ADA Amendment Rescinding Sutton Decision Does Not Apply
              Retroactively

Case: EEOC v. Agro Distribution, LLC, 555 F.3d 462 (5th Cir. 2009).

Facts: According to Henry Velez, he suffers from ectodermal dysplasia, a genetic defect that results in
abnormal development of skin and the absence of sweat glands. Velez experiences difficulty doing manual
labor in temperatures exceeding 80 degrees Fahrenheit and deals with this difficulty by taking frequent
breaks, standing in front of a fan, and dousing himself with water. Velez began working for Agro
Distributors ("Agro") as a truck driver in early 2000. In July 2002, all of Agro's staff members were
ordered to report to work early the following day to participate in the loading of barrels onto a trailer for
shipment. The job was considered so dirty and unsavory that all non-office employees, including the
supervisor who gave the order, were instructed to assist with the loading. Only one employee, a petite
female, was excused. Velez, having become ill when he previously assisted on the same type of job in
warm temperatures, asked to be excused, and when his request was denied, he failed to report to work the
following day at all. Following his termination, the EEOC sued on his behalf, alleging that the failure to
excuse Velez from the loading job was a violation of the ADA.

Issues and Decision: On appeal, the Fifth Circuit noted that although the ADA amendments had been
enacted, they do not apply retroactively. Relying then on the Sutton decision, the court observed that Velez
has, over the years, adopted a variety of strategies to regulate his body temperature, including cold drinks,
use of fans, spraying himself with water, resting when laboring on hot days, and using air conditioning.
These routine measures, the court stated, are common behaviors in southern climates, and are used by
Velez, albeit with greater frequency or longer duration than the average person, to cool himself off.
Because Velez does not require any special measures to regulate his body temperature, the court concluded
that there was no genuine issue as to whether his impairment substantially limited a major life activity and
affirmed summary judgment in favor of Agro.

III. SUBSTANTIAL LIMITATION OF MAJOR LIFE ACTIVITIES

    A. Developments in Major Life Activities

         1.   Seventh Circuit Holds That Driving Is Not a Major Life Activity

Case: Winsley v. Cook County, 563 F. 3d 598 (7th Cir. 2009).

Facts: Marsalette Winsley was employed in October 2001 as a Public Health Nurse I for Cook County,
Illinois. She was assigned as a Family Case Manager, a position that required her to drive to the homes of
her clients to evaluate their conditions and development. In March 2004, she was involved in an
automobile accident. Although she did not seek emergency treatment, she contacted her psychiatrist, Dr.
Bednarz, to report that she was suffering from panic attacks and an inability to sleep. Dr. Bednarz
diagnosed her with post-traumatic stress disorder and recommended that she take a leave of absence. She
was eventually released to return to work with "minimal work-related driving," and between her return to
work and her termination, she was accommodated in a variety of ways, including a lengthy leave of
absence. In June 2005, Dr. Bednarz sent the county a note stating that Winsley's "only restriction is no
more driving than to & from work, otherwise full duty." Between November 2004 and June 2005,
Winsley's attendance was unsatisfactory and in late May she was given a memorandum noting her
                                                    6
absenteeism over the previous eleven weeks and requesting an improvement in her attendance. A few days
later, without notice, Winsley stopped going to work and never returned. She formally resigned from her
position in October 2007. Winsley sued the County, alleging, among other things, that the County violated
the ADA.

Issues and Decision: The district court dismissed Winsley's claims, holding that she had not established
that she had a disability, or that she was otherwise qualified to perform the essential functions of her job.
Winsley appealed. On appeal, the Seventh Circuit affirmed, joining its sister circuits. The court, citing the
EEOC's regulations for the proposition that driving is not a major life activity, listed the material
differences between the types of activities enumerated by the EEOC and driving. For example, the court
observed that the importance of the listed activities does not vary depending upon where an individual
lives, as does driving. The court further held, however, that although driving is not itself a major life
activity, "the inability to drive nevertheless could create a disability if it caused an impairment of a major
life activity." The court noted, for example, that if it were to significantly restrict the ability to perform a
class of jobs or a broad range of jobs in various classes, then it might be considered a disability. Winsley,
however, presented no evidence indicating that her inability to drive disqualified her from a class or range
of jobs and thus she failed to establish a required element of her disability claim.

         2.   Court Rejects Cancer Survivor's Argument That "Living" Is a Major Life Activity

Case: Parker v. Zimmer, Inc., No. 3:06-CV-767 PPS, 2008 U.S. Dist. LEXIS 56596 (N.D. Ind. July 24,
2008).

Facts: Laura Parker worked for Zimmer as a senior programmer/analyst in its information technologies
department from 1991 through 2006, when she resigned. In May of 2001, Parker was diagnosed with
malignant, metastic melanoma and in 2002 and 2003 she was diagnosed with brain tumors. Parker took
separate short term disability leaves for treatment of her cancer and returned to work with several side
effects of the disease and treatments that Zimmer accommodated without question. These included
lymphodema and deep vein thrombosis (blood clots) in her legs that required her to elevate her legs and
limited her ability to sit for long periods of time, a compromised immune system that left her susceptible to
colds and viruses, and anti-seizure medication that caused fatigue. Only one of her 2003 requests for
accommodation—working at home—was not granted.

 In January 2006, Parker was presented with a written warning regarding her attendance the previous year.
Parker alleged that she was "blindsided" by the warning, as she had not received any prior notice that her
attendance was unsatisfactory. She was placed on a restrictive attendance improvement plan that required
her, among other things, to schedule personal appointments outside of work hours or during days taken as
vacation time, to be scheduled one week in advance. She ran afoul of the improvement plan and in
February 2006, she submitted a letter of resignation, stating that she "cannot continue to function in this
environment, worrying constantly that I will do something that will lead to my termination," and she
informed one supervisor that she was resigning "in the best interest of [her] health." During her deposition,
however, Parker testified that her health concerns were not the real reason for her termination. Instead, she
testified that she resigned because she was being placed on a new application system and would be
supervised by a manager whom she alleged had previously sexually harassed her. Nonetheless, she sued,
alleging violations of the ADA and the FMLA.

Issues and Decision: In determining whether Parker was an individual with a disability under the ADA,
the court first noted that "[s]imply being diagnosed with cancer is not a disability per se for purposes of the
ADA." Parker, the court then observed, failed to identify any major life activity that "she is unable to do."
Her only claim was that because of her cancer she had to "fight for her very own survival," and that her
                                                     7
cancer had an effect on her attendance record. The court addressed this claim and held that it was "easily
disposed of" because "living" is not a major life activity. In support of this conclusion, the court pointed to
the fact that the EEOC did not define the phrase "major life activity" to include "living," "probably because
of the circular nature of such a proposition." Further, the court observed that Parker did not cite any
authority in support of the proposition that "living" is a major life activity and the only case the court could
find "squarely held that it is not." The court also held that Parker was not substantially limited in the major
life activity of working because she identified no class or broad range of jobs that she was unable to
perform. Based on these findings, the court granted summary judgment in favor of Zimmer.

    B. What Are Substantial Limitation of Major Life Activities?

         1.   Employee Suffering from Chronic Fatigue Syndrome Was Substantially Limited in the Major
              Life Activities of Sleeping, Thinking and Caring for Herself

Case: EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606 (5th Cir. 2009).

Facts: Lorin Netterville was diagnosed with chronic fatigue syndrome ("CFS"), a condition characterized
by severe fatigue coupled with various symptoms such as impairment of short-term memory or
concentration, sore throat, tender lymph nodes, muscle pain, joint pain with swelling or redness, headaches,
unrefreshing sleep, and post-exertional malaise lasting more than 24 hours. At the time of her diagnosis,
Netterville was attending classes and caring for her children and was not gainfully employed. In December
2000, Netterville was hired by Chevron as a temporary administrative assistant and prior to being hired on
in a permanent position in April 2001, she completed a medical questionnaire on which she failed to note
her diagnosis. Netterville maintained that she did not reveal her chronic fatigue syndrome diagnosis
because he had not had any symptoms in 13 years. In June or July of 2002, Netterville began experiencing
symptoms of and was eventually diagnosed with a recurrence of her CFS. By February of 2003, Netterville
was living with her sister, who assisted her with daily tasks like cooking, washing, shopping, showering,
drying, dressing, and using the bathroom, largely because of "excruciating pain" in her arms and morning
nausea. In February 2003, she took two weeks off for treatment and began a regimen of medication that
alleviated some of her symptoms. Following treatment, she returned to work with a release to return to her
job duties, with instructions that she would need to alternate reading and typing and rest during her lunch
hours. Netterville indicated that her supervisor "remained silent" when she presented the note and neither
granted nor denied the requested accommodations. Netterville, on her own initiative, alternated her tasks
and rested during her lunch hours until her termination. In the meantime, Chevron, under the false
impression that CFS is a "blood disorder" that Netterville failed to identify on her pre-employment
questionnaire, determined that she should be terminated for this "misrepresentation." Technically, there
was another section of the questionnaire that would have been applicable to her CFS, but she repeatedly
argued that she felt she did not have the condition any longer because she had been symptom-free for so
many years. Following her termination, the EEOC sued on Netterville's behalf, alleging that Chevron had
failed to accommodate her known limitations and discharged her in violation of the ADA.

Issues and Decision: Chevron, in its motion for summary judgment, argued that Netterville did not have a
disability under the ADA. However, in denying the motion, the court held that there was substantial
evidence in the record to support the conclusion that she was substantially limited in three major life
activities—sleeping, thinking, and caring for herself. With regard to the major life activity of caring for
herself, Netterville testified that she often did not shower for several days because contact with the water
was painful and because her arms hurt too much to raise them to wash herself or dry her hair. When she
did shower, she needed to rest afterwards. She was unable to cook, shop for food, zip up her own clothes,
or even use the bathroom without her sister's assistance. These are the kinds of activities involved in caring
for oneself that average people can perform with ease. Netterville's inability to complete these tasks by
                                                     8
herself, the court observed, amply demonstrated that she was substantially limited in caring for herself.
With respect to sleeping, Netterville testified that for approximately two weeks out of each month, she got
no more than one or two hours of sleep a night for six or seven days in a row, and then three or four hours
of sleep a night on the remaining days. Once a month she would sleep straight through for up to seventeen
hours. She further testified that during the day she was often so tired that she fell asleep while driving,
needed to rest during lunch, and experienced fatigue and brain fog. This evidence, the court held, was
sufficient for a jury to reasonably find that Netterville was substantially limited in her sleep as compared to
the average person in the population and that the lack of sleep affected her waking hours. Finally, with
respect to thinking, Netterville testified that she suffered from episodes of aphasia, including times when
she forgot her own son's name, an inability to concentrate, forgetfulness about how to perform routine
tasks, and falling asleep or losing focus while driving. This testimony, the court held, was sufficient to
support a finding that Netterville's CFS created a substantial limitation on her ability to think relative to the
average person. Because Netterville was substantially limited in not one, but three, major life activities by
her CFS, the court held that she did have a disability under the ADA and thus could proceed with her
claims.

    C. The Major Life Activity of Working

         1.   Evidence Supported Claim That Employer May Have Regarded Employee As Having Disability
              In the Major Life Activity of Working

Case: Dvorak v. Clean Water Services, 319 Fed. Appx. 538 (9th Cir. 2009).

Facts: Douglas Dvorak worked for Clean Water Services ("CWS") in a physically demanding, safety-
sensitive position. As a field construction and maintenance technician, Dvorak's job involved the operation
of a variety of heavy equipment, working in areas of heavy traffic, working in and around permit-required
confined spaces, working over open manholes and at times, responding to urgent situations. In 2002,
Dvorak met with a CWS's senior human resources analyst, Tricia Godfrey. Dvorak told Godfrey that his
physician had advised him that the medications he was taking for severe neck pain were damaging his liver
and kidneys, and that he had been approved for a medical marijuana card. He also told Godfrey that he did
not want to use medical marijuana unless it was approved by CWS. When CWS discovered that the doctor
who had provided Dvorak with the medical marijuana card had been suspended from the practice of
medicine for improper issuance of medical marijuana prescriptions, it started a chain reaction of
examinations and conflicting medical opinions on Dvorak's use of narcotics for pain control that
culminated in Dvorak's examination by a Dr. Burton in 2003. Dr. Burton opined that based on the type and
increasing dosages of medications that Dvorak was taking, which included a narcotic analgesic for pain, it
would be inappropriate to place him in any safety-sensitive position. Based on Dr. Burton's opinion,
Godfrey scheduled a meeting with Dvorak and his union representative, at which meeting Godfrey
suggested a treatment program as recommended by Dr. Burton. Dvorak refused to enter the treatment
program and was terminated. He sued, alleging disability discrimination under the ADA. The district court
granted summary judgment in favor of CWS, and Dvorak appealed.

Issues and Decision: On appeal, Dvorak argued that he was able to work because he took the medications
in dispute. CWS, on the other hand, argued that those very medications rendered Dvorak incapable of
working. The court reversed and remanded, holding first that whether the medications "freed Dvorak of
substantial limitations or imposed such limitations," was a "factual question best decided by the jury." The
court further noted that there were also material issues of fact regarding whether CWS perceived Dvorak as
having a disability. As evidence in support of his "regarded as disabled" claim, Dvorak pointed to a
conversation that allegedly occurred between himself and Godfrey. According to Dvorak, during a
discussion with Godfrey where he indicated that he was able to work in a van with the sewer television
                                                      9
crew, monitoring sewer and storm lines with a television camera, Godfrey stated "I won't even put you
behind a computer." This statement, the court held, along with the fact that CWS would not allow him to
return to his field position, was sufficient evidence that CWS may have considered Dvorak to be precluded
from performing a broad range of jobs, and to raise a genuine issue of material fact that CWS perceived
Dvorak to be having a disability in the major life activity of working.

         2.   Employee Terminated in RIF May Have Been Regarded as Substantially Limited in the Major
              Life Activity of Working

Case: Eshelman v. Agere Systems, 554 F.3d 426 (3d Cir. 2009).

Facts: Joan Eshelman was hired by Agere Systems' ("Agere") predecessor in 1981. Over the next twenty
years, she advanced through the ranks, eventually attaining the position of supervisor of the Chief
Information Office of Agere's Reading, Pennsylvania facility. In 1998, Eshelman was diagnosed with
breast cancer and took a medical leave of absence from September 1998 until March 1999 for treatment.
When she returned to work, she informed her supervisors Joseph DiSandro and David Baily, that she was
suffering from short-term memory loss—colloquially referred to as "chemo brain"—as a result of
chemotherapy. She was able to cope with this impairment by carrying a notebook with her and taking more
notes than she had prior to undergoing chemotherapy. She also advised her supervisors that she had
difficulty driving to unfamiliar places, which she was required to do occasionally as part of her job. If she
got lost while driving, she would pull over to the side of the road to get her "focus back." The evidence,
including outstanding performance reviews, promotions, raises and bonuses, showed that Eshelman
excelled at her job following her return to work.

In October 2001, Agere suffered a substantial decline in profitability and immediately implemented a
company-wide reduction in force. Initially, Agere determined that it would make the Reading facility
leaner, although the facility was ultimately closed. In determining layoffs, however, Agere used a "Force
Management Program" ("FMP") designed to rank employees based on an objective assessment of skills
that would be needed after the completion of the corporate restructuring. Employees who scored below a
certain level would be identified for possible layoff while employees who scored above the cutoff would
remain employed. Consistent with his desire to retain Eshelman, DiSandro initially gave her very high
FMP score. He also made an effort to shield her from termination by suggesting that she be transferred to a
different Agere facility in the same area (Breinigsville or Allentown). When the subject of transfer was
broached with Eshelman, however, she expressed concerns, formalized in an email to DiSandro, about
traveling to new locations given her memory problems, increased commuting expenses, the hardship of a
daily commute, potential relocation expenses and the need for her husband to remain in their current county
of residence. DiSandro, after consulting with Baily and Stephen Levanti, the senior manager in charge of
manufacturing, changed Eshelman's FMP score from one of the highest to one of the lowest. Not
surprisingly, Eshelman was selected for layoff effective December 30, 2001. Eshelman filed suit against
Agere, alleging, among other things, that it terminated her in the RIF because it regarded her as having a
disability in the major life activity of working. Her case was tried before a jury, which found in her favor
and awarded her back pay and compensatory damages. Agere appealed.

Issues and Decision: Agere argued that Eshelman failed to establish that it regarded her as having a
disability in the major life activity of working. At most, it argued, her evidence established only that Agere
perceived Eshelman's chemotherapy as rendering her unable to drive or commute to work, neither of which
is a major life activity. As evidence that it did not regard her as having a disability in the much broader
activity of working, which is a major life activity, Agere argued that it would have been implausible for the
jury to conclude that Agere believed Eshelman was unable to perform her job duties adequately, "given the
amount of praise and accolades it lavished on Eshelman both before and after her treatment for cancer."
                                                    10
The court held that while the jury may well have heard evidence that supported this argument, it did not
"explain away Agere's avulsive change in [her] FMP score." The court also pointed to Baily's testimony—
that another reason for the change in Eshelman's FMP score was its concerns about her ability to perform
the job in Breinigsville or Allentown following the restructuring—that could have led the jury to believe
that Agere was concerned with broader issues than just Eshelman's impaired ability to drive. The jury, the
court reasoned, "could have concluded Agere's perception of Eshelman's overall memory problems, not
simply her difficulty learning driving directions to a new work site, effectively rendered [her] unable to
perform any job at Agere" and that "[her] memory impairment was one of three factors that effectively
precluded her from every job remaining under Agere's restructured operation outside of Reading." In sum,
the court held that the testimony at trial afforded the jury a sufficient basis to conclude that Eshelman was
chosen for termination "based on its perception—whether accurate or not—that her cancer-related memory
problems rendered her unfit for any job in Agere's restructured workforce." The court affirmed the jury's
verdict on Eshelman's disability discrimination claim.

IV. WHAT ARE ESSENTIAL JOB FUNCTIONS?

    A. Employer Is Not Required to Waive an Essential Job Function as a Reasonable Accommodation

Case: Lloyd v. Washington & Jefferson College, 288 Fed. Appx. 786 (3d Cir. 2008).

Facts: Karl Lloyd, who suffered from agoraphobia and panic attacks, was an associate professor in
Washington & Jefferson College's ("W&J") Information Technology Leadership Department from July 1,
2002 until April 5, 2004. His responsibilities included teaching up to seven courses annually, preparing for
classes, mentoring students, holding regular office hours, attending departmental and faculty meetings,
developing new courses, conducting research and writing, and participation in recruiting activities and in
the intellectual cultural and social life of the College. Most of these activities required his physical
presence on the campus. During his first performance evaluation, it was suggested to Lloyd that he make
an effort to be more "visible" on campus—according to the Department Chair, Dr. Charles Hannon, Lloyd
was on campus for his classes and for little other time. Lloyd's failure to spend an adequate amount of time
on campus resulted in fewer opportunities for him to advance the mission of the ITL Department and to
become better known to other faculty who would be making recommendations regarding his tenure. In
April 2003, W&J implemented a policy under which all full-time ITL faculty were required to be on
campus a minimum of four days per week, for at least four hours per day. Nevertheless, Lloyd continued
to report to campus three days per week and to work at home the rest of the week. In January 2004, he took
FMLA leave for medical problems associated with stress, citing Dr. Hannon, the Chair of his Department,
as the source of the stress. Following Lloyd's return from leave, and subsequent requests for additional
leave and certain accommodations under the ADA, W&J agreed to transfer him temporarily to a non-
teaching position in the Information Technology Services Department where he could work under the ITS
Director, Daniel Faulk. However, the new job would require Lloyd's presence on campus five days a week.
Lloyd responded to the offer by demanding a three-day on-campus requirement based on his medical
condition. W&J responded that his refusal to work the five day week was unacceptable and that if he failed
to report to work in the temporary position, he would be considered to have voluntary resigned. When
Lloyd failed to report, W&J terminated his employment. He sued, alleging a failure to accommodate under
the ADA. The district court granted summary judgment on his claims and he appealed.

Issues and Decision: On appeal, Lloyd argued that W&J improperly discharged him instead of granting
his request for a reasonable accommodation—a schedule that would require him to appear on campus only
three days per week. The court rejected this argument, however, noting that W&J made numerous
reasonable accommodations—including the offer of a temporary transfer away from Hannon, a five-day
schedule under Faulk that would allow him to attend his Tuesday and Thursday medical appointments, and
                                                   11
a three-day workweek (albeit with a five-day on-campus requirement) in the ITS Department beginning in
March 2004—all of which were designed to ameliorate the stress he experienced when he was on-campus.
Lloyd's insistence on a three-day on-campus requirement, the court held, would have been a waiver of an
essential job function that W&J "was not required to accept."

V. WHAT IS A "QUALIFIED INDIVIDUAL WITH A DISABILITY"?

    A. Court Rejects Employer's Assertion That Employee Was Not Qualified Based on Job Description
         Task that Employee Was Never Required to Perform

Case: Rooney v. Sprague Energy Corp., 581 F. Supp. 2d 94 (D. Me. 2008).

Facts: Ashley Rooney had been an employee of Sprague Energy Corp. ("Sprague") for twenty years when
he revealed to his employer that he was suffering from macular degeneration. Within two weeks, although
Rooney had performed his job satisfactorily for more than two decades and received generally favorable
job evaluations, Sprague pulled him out of the cab of the front-end loader he was operating and placed him
on long-term disability. Before removing Rooney from his job, Sprague made no effort to "match the job
requirements with his limitations, failed to communicate with his physician, and did not investigate
possible accommodations." According to the court, these actions were consistent with Sprague's policy of
"actively discriminating against employees with long-term disabilities." Rooney sued under the Maine
Human Rights Act (the state equivalent of the ADA) and a jury found in his favor and awarded damages.
Sprague maintained "a tenacious opposition" to Rooney's claim, and filed a "barrage" of post-trial
motions."

Issues and Decision: In both its motion for reconsideration and its motion for judgment as a matter of law,
Sprague maintained that Rooney was not a qualified individual with a disability because he was unable to
perform and had never performed the "essential function" of tank gauging, which was listed on his 2000 job
description. Acknowledging that essential functions may be established by "(1) the employer's judgment as
to which functions are essential; (2) written job descriptions; (3) the amount of time spent performing the
function; (4) the consequences of not requiring the incumbent to perform the function; and, (5) the current
work experience of incumbents in similar jobs," the court nonetheless held that in this particular case, the
employer's judgment and the job description were not probative. The evidence produced at trial showed
that not only had Rooney never learned the task of "tank gauging," but he was also never reprimanded for
being unable to do so. Although two of Rooney's performance evaluations made passing reference to his
failure to gauge tanks, tank gauging was not included as an area of "improvement opportunity" on either
evaluation or as part of the major job objectives for the next evaluation period. Based on this evidence, and
the fact that Sprague was required to show that the evidence presented was "so strongly and
overwhelmingly inconsistent with the verdict that no reasonable jury could have returned it," the court
rejected Sprague's contention that Rooney was not a "qualified individual."

VI. DIRECT THREAT OF HARM

    A. Hospital Was Not Required to Implement Doctor's Proposed Accommodation That Failed to
         Address Patient Safety Issues

Case: Jakubowski v. Christ Hospital, NO. 1:08-CV-00141, 2009 U.S. Dist. LEXIS 66847 (S.D. Ohio
Aug. 3, 2009).

Facts: Dr. Martin Jakubowski, a 2003 graduate of the University of Medical Sciences in Poznan, Poland,
began his medical career with a residency at St. Elizabeth Hospital in July 2005. He "struggled" with his

                                                   12
clinical practice at St. Elizabeth, was placed on a remediation program, and when he did not improve, St.
Elizabeth notified him that it would not be renewing his contract for a second year. In July 2007, he
successfully obtained a position with Christ Hospital (the "Hospital") in its Family Medical Residency
Program under its director, Dr. Phillip Diller. During his orientation month, the Hospital noted that he
showed some "weaknesses" in his patient encounters, and that he scored poorly on his emotional
intelligence exam. Suspecting that Dr. Jakubowski might be suffering from a cognitive disorder, Dr. Diller
referred him to a psychologist. In the meantime, Jakubowski demonstrated such poor communications
skills that nurses often could not understand what he was trying to communicate and he had difficulty even
answering a phone call and taking a message. In addition, other doctors began documenting errors relating
to Jakubowski's communication problems. On August 24, 2007, Jakubowski was notified that he had failed
his inpatient rotation and the next day, on August 25, the psychologist conclusively diagnosed Jakubowski
with Asperger's Syndrome, a condition that causes "clinically significant impairment in social,
occupational, or other important areas of functioning." On Monday, August 27, Dr. Diller notified him
that he would be terminated effective September 30, 2007. Two weeks later, Jakubowski, through his
attorney, requested the accommodation of "knowledge and understanding," asserting that he could "be
successful if all the professionals around him [were to be] made aware of his condition, its symptoms, and
its triggers." Dr. Diller rejected this request, but did offer to assist Jakubowski in finding a pathology
position if he would forego the appeal of his dismissal. Jakubowski rejected this suggestion and sued,
alleging a failure to accommodate.

Issues and Decision: In its motion for summary judgment, the Hospital argued that Jakubowski posed a
direct threat that rendered him unqualified for his position because he was unable to perform the essential
functions of his position "in a way that does not endanger others." The Hospital further argued that there
was no reasonable accommodation in existence that would have eliminated the significant risks to patients
that Jakubowski's condition imposed. Indeed, the Hospital asserted, the only accommodation that would
have eliminated those risks would have been to assign a doctor to monitor and oversee all of Jakubowski's
actions and communications—an accommodation that it viewed as overly burdensome and as outside the
realm of reasonable accommodation required under the ADA. According to the Hospital, Jakubowski's
requested accommodation—the dissemination of knowledge of his condition to the staff and their
consequent understanding—would have proved unrealistic and failed to address his communication
problems and the threat to patient safety. Finally, the Hospital argued that the decision to terminate
Jakubowski was not based on any improper animus, as evidenced by its good faith offer to assist him in
finding a pathology position as an alternative to the Family Medical Residency Program.

Concluding first the Jakubowski's condition qualified as a disability under the ADA, the court made short
work of his arguments and granted summary judgment in favor of the Hospital. First, the court advised,
Jakubowski's proposed accommodation of "knowledge and understanding" failed to address the Hospital's
concerns about patient safety. The Hospital, the court held, offered legitimate concerns that Jakubowski's
condition presented "unacceptable long-term risks in the context of the medical work he [sought] to
perform. The very nature of the medical profession requires solid communication skills with patients;
fundamental problems with such communication make likely the potential of harm to the health or safety of
others." Based on this reasoning, and the fact that Jakubowski's experts' proffered alternative
accommodations failed to address either a reasonable time frame or patient safety issues, the court held that
Jakubowski was not "otherwise qualified" as a matter of law.

    B. Welder Who Worked on Plant Floor with Dangerous Equipment Posed Direct Threat Due to
         Uncontrolled Hypoglycemic Episodes that Rendered Him Violent and Confrontational

Case: Onken v. McNeilus Truck & Mgf., 639 F. Supp. 2d 966 (N.D. Iowa 2009).

                                                   13
Facts: In 1999, McNeilus Truck & Mfg. hired Martin Onken as a welder, a position that involved working
on the plant floor with various types of dangerous equipment. Onken has Type I diabetes and suffers from
low blood sugar episodes known as hypoglycemia. Beginning in 2001, Onken's hypoglycemic episodes
began to manifest themselves at work, culminating in a final episode in July 2006 that led to his termination
from employment. Prior to the July 2006 incident, some of Onken's episodes had been serious enough for
him to be transported to the hospital by ambulance. After episodes in September and December of 2005,
McNeilus expressed increasing concern over safety during Onken's episodes, began requiring him to obtain
fitness-for-duty releases, and attempted to work with him to ensure that his diabetes was under control,
including permitting him to take as much time as needed to check his blood sugar levels throughout the
workday. In February 2006, Onken attended a three-day inpatient diabetes education program at the Mayo
Clinic. In May of 2006, however, he was again sent home from work due to a low blood sugar reading.
On July 18, 2006, Onken had yet another hypoglycemic episode at work. This episode left him staggering
and red-faced, violent and confrontational. When a co-worker who was also a paramedic attempted to get
him to ingest some glucose, he slapped it out of her hand so hard it flew across the room. He was
eventually coaxed into an ambulance and taken to the hospital. As a result of this episode, the plant
supervisor and others determined that it might be unsafe to continue to allow Onken to work at the plant
because his low blood sugar episodes created safety issues. He was placed on leave and underwent another
fitness-for-duty evaluation. A subsequent decision to terminate him was based on the evaluating doctor's
opinion, which advised in part that despite educational efforts, Onken had poor glycemic control and poor
insight at the time he experiences a hypoglycemic episode, thus preventing him from taking the steps
necessary to ensure self-control. On September 21, McNeilus advised Onken by letter of the results of the
evaluation, and solicited additional ideas for accommodation that would resolve his problems with
hypoglycemia. The letter further advised that if Onken had no additional ideas on accommodation, he
could consider his employment terminated. When Onken contacted NcNeilus and suggested only that he
be allowed to test his blood sugar level more frequently, his suggestion was declined as an idea that had
been tried in the past without success. Onken sued, alleging disability discrimination under the ADA and
state law.

Issues and Decision: Onken made several arguments in response to McNeilus' summary judgment
motion, which was based on the assertion that he posed a direct threat to the safety of himself and others by
virtue of his hypoglycemic episodes. First, Onken pointed to the testimony of several of his co-workers,
who testified that they had no fears for their safety. The court rejected this argument, however, pointing to
the fact that existence, or nonexistence, of a significant risk must be determined from the standpoint of the
person refusing the accommodation, and not the employee's co-workers. In this case, the plant's
occupational health nurse, Mary Adam, and human resources director, Tracey Rymer, were ultimately the
individuals who determined that Onken posed a direct threat. Second, he argued that Adam and Rymer
failed to follow the requirements of the ADA because they did not base their decision on reasonable
medical judgment and failed to consider the factors set forth in the regulations. On this issue, the court
ruled that Onken was simply incorrect. The evidence showed that not only did they perform an
individualized assessment of the factors listed in the regulations, but they also based their decision on the
facts contained in the July 18 incident report regarding his behavior during his last hypoglycemic episode,
and also on the thorough fitness-for-duty evaluation. Finally, Onken argued that the evaluation did not
actually support the conclusion that he posed a direct threat, but rather stated that he should have been
allowed to return to work and perform more frequent blood sugar checks. The court also disagreed with
this argument, pointing to the fact that the evaluation stated only that Onken would pose no risk if he were
able to manage his underlying medical condition without having hypoglycemic episodes, and the fact that
all previous attempts, over a period of years, had resulted in failure. Based on this reasoning, the court
granted McNeilus' motion for summary judgment and dismissed Onken's claims.


                                                   14
    C. School Aide Who Suffered Fainting Spells Can Proceed With ADA Discrimination Claim Where
         Evidence Refuted Employer's Assertion that She Posed Direct Threat

Case: Kaw v. School Dist. of Hillsborough County, No. 8:07-cv-2222-T-33TGW, 2009 U.S. Dist. LEXIS
11086 (M.D. Fla. Jan. 30, 2009).

Facts: In 2005, Sherrie Kaw was hired by the Hillsborough County School District as a one-on-one aide
for B.V., an autistic child. Her job duties mandated that she was exclusively responsible for B.V.'s safety,
security and functioning. In 2002, Kaw had been diagnosed with electrocardiogenic syncope, a condition
that causes fainting spells. Prior to this diagnosis, she had been fainting constantly, and according to her
own testimony, her fainting spells compromised her ability to care for her children. However, under
treatment her condition improved. During the 2005-2006 school year, Kaw was frequently absent from
work and fainted twice, once in the hallway with B.V. and once in the classroom. During both of these
incidents, Kaw lost consciousness and the paramedics were called. Although principal Bobby Smith was
concerned about both her attendance record and her fainting spells, Kaw was offered a position as B.V.'s
aide for the following year.

In August 2006, shortly after beginning her second year, Kaw reported to the school nurse, stating that she
felt lightheaded. She was advised to go home and to see her physician. She never returned to work. On
September 18, Kaw "stopped by" Smith's office without an appointment, and Smith asked about the heart
monitor she was wearing. While Kaw was meeting with Smith, the heart monitor beeped twice. When
Kaw informed Smith that she would have to wear the monitor for 30 days, Smith allegedly told her that a
beeping monitor would be a distraction and that it would be better if she completed all of her medical tests
before returning to work. Smith testified that that Kaw seemed very anxious during the meeting and that he
was concerned she might have a heart attack right then in his office. During the meeting, Kaw did not
explain to Smith why she had been absent from work for the past several weeks or when she would be
returning. Smith followed up on the meeting by calling Kaw twice to inquire about her status and her
ability to return to work, but she never returned his calls. Smith consulted with Joseph Trumbach, the
School Board's Manager of the Office of Professional Standards, who advised that Kaw could be
terminated based on her failure to fulfill her employment duties. Trumbach explained this conclusion by
stating that Kaw's health issues "could have put [B.V.'s] life, health, and safety in danger . . ." and that
"we're in the kid business, and if we're going to err, we're going to err on the side of the child." When Kaw
protested her termination and produced several physicians' notes releasing her to return to work with no
restrictions, Trumbach advised Smith to offer Kaw reinstatement. In the offer of reinstatement, however,
Smith stated, in part, that [i]t is our hope that your good health continues to allow you to serve as a
productive employee of our school district. Should circumstances change, we will address them
accordingly." Kaw rejected the offer, determining that it was conditioned upon an improvement in her
condition, which had not and would not happen. She hired a lawyer and sued, alleging a violation of the
ADA.

Issues and Decision: The court denied both the parties' motions for summary judgment, and in the process
rejected the School District's argument that Kaw presented a direct threat to the safety of B.V. The court
first agreed with the School District that Kaw had no actual disability due to the infrequency of her fainting
spells and the effectiveness of the medications controlling her condition. In reviewing the evidence,
however, the court held that a reasonable jury could find that the School District regarded Kaw as having a
disability. The School District argued that Kaw posed a direct threat to herself, B.V. and others. However,
the court found a genuine factual issue as to whether Kaw posed a direct threat. First, the court noted,
nothing happened the two times Kaw fainted while B.V. was in her care. There was no harm to B.V., Kaw,
or others. Second, the court held that the School District's position that Kaw posed a direct threat was

                                                    15
belied by its "uncontested willingness to reinstate her after her termination." Based on this reasoning, the
court held that it was for a jury to decide whether Kaw posed a direct threat to herself and others.

    D. Combination of Inherently Dangerous Job Duties and Unpredictable Seizure Disorder Makes
         Employee a Direct Threat

Case: Davis v. Michigan Agricultural Commodities, No. 08-10077-BC, 2009 U.S. Dist. LEXIS 5582
(E.D. Mich. Jan. 12, 2009).

Facts: Aaron Davis was hired by Michigan Agricultural Commodities ("MAC"), a large grain handler, in
October of 2001. Davis worked as a "general laborer" and his job consisted of several dangerous job
duties. His primary job duty was to clean the inside of grain bins. To accomplish this, employees worked
in pairs—one employee would enter the grain bin, either by a side door or by being lowered by rope—and
would sweep or knock grain from the walls of the bin. The other employee would remain outside the bin,
which was a confined space, to serve as a lifeline and safety net for the employee in the bin. Either method
of entering and cleaning the bin requires constant vigilance by both employees because of the risk of being
crushed by collapsing grain as it is knocked down, and because the employees cannot see each other
because of the grain dust. Davis' job also routinely involved the use of heavy equipment, including a fork
truck, front-end loading tractors, and a railcar mover. In January 2006, Davis suffered an on-the-job back
injury. Approximately two to three months later, he began having seizures of varying degrees at
unpredictable intervals. The evidence revealed that Davis had suffered from seizures as a child, but that he
had not had any seizures since he was a teenager. Between the time he first began having seizures until his
termination in October 2007, Davis' physician attempted to control his seizures by using medication.
However, he continued to have seizures both on and off work. In October 2007, when it became apparent
that his seizures were still not medically controlled, MAC terminated his employment based on its belief
that his seizures rendered him incapable of safely performing the essential functions of his job. Davis sued,
alleging that MAC regarded him as having a disability.

Issues and Decision: MAC, in defending its position, argued that Davis could not show that he was a
"qualified individual" because his impairment posed a direct threat to health and safety, a threat which
could not be eliminated by reasonable accommodation. The fact that Davis' job duties were inherently
dangerous was undisputed. Further, MAC emphasized that if it were to eliminate all of the hazards of
Davis' position, it would be required to eliminate virtually all of his job duties. These job duties, MAC
contended, were particularly dangerous for someone with an uncontrolled seizure disorder. While Davis
argued that MAC's assessment of the risk he posed was "speculative," the court rejected this argument,
finding that even if the risk was small, the "inherently dangerous nature of his position deserves significant
weight in the analysis of whether [he] is a 'direct threat.'" Davis' doctor testified that at the time of his
termination, Davis' seizures were 80% controlled. However, he also testified that it would not be safe for
him to operate a forklift or tractor, climb, or act as a lifeline for someone below him in a grain elevator if he
was still experiencing seizures. Based on the evidence, the court concluded that there was no question but
that Davis posed a direct threat, given the combination of inherently dangerous job duties and the
unpredictability of his seizure disorder. In keeping with this conclusion, the court granted MAC's motion
for summary judgment.




                                                     16
VII. REASONABLE ACCOMMODATION

    A. Transfer to a Vacant Position as a Reasonable Accommodation Where Employee with a Disability
         Is Not the Most Qualified Candidate

         1.   Circuit Courts in Conflict

Where a vacant position exists, the employer may, or may not, be required to transfer a less qualified
candidate into the position in order to reasonably accommodate the employee under the ADA. At present,
whether or not such an action would be required depends on where the employer is located in the federal
circuits. With its May 2007 decision in the Huber case (summarized below), the 8th Circuit (Arkansas,
Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) joined the 7th Circuit (Illinois,
Indiana and Wisconsin) in holding that the ADA is not an affirmative action statute and that an employer is
not required to transfer a employee with a disability to a position for which there is a more qualified
applicant. EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1027-28 (7th Cir. 2000). The 5th Circuit
(Louisiana, Mississippi and Texas), while not addressing the issue directly, has stated that "we do not read
the ADA as requiring affirmative action in favor of individuals with disabilities, in the sense of requiring
that people with disabilities be given priority in hiring or reassignment over those who have no disability. It
prohibits employment discrimination against qualified individuals with disabilities, no more and no less."
Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995). Other courts have made similar statements.
See Wernick v. Federal Reserve Bank, 91 F.3d 379 (2d Cir. 1995) ("[N]othing in the law leads us to
conclude that in enacting the disability acts, Congress intended to interfere with personnel decisions within
an organizational hierarchy. Congress intended simply that people with disabilities have the same
opportunities available to them as are available to nondisabled persons."); Hedrick v. Western Reserve Care
Sys., 355 F.3d 444 (6th Cir. 2004) ("Although a 'reasonable accommodation' may include reassignment to a
vacant position, an employer need not reassign an employee with a disability to a position for which he is
not qualified, nor is the employer required to waive legitimate, non-discriminatory employment policies or
displace other employees' rights in order to accommodate” a person with a disability.); Terrell v. USAir,
132 F.3d 621 (11th Cir. 1998) (citing ADA language and Daugherty for the proposition that "[w]e cannot
accept that Congress, in enacting the ADA, intended to grant preferential treatment for disabled workers").

The 10th Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming) has held that
"'reassignment' must mean something more than the mere opportunity to apply for a job with the rest of the
world," and the D.C. Circuit has held that "[t]he word 'reassign' must mean more than allowing an
employee to apply for a job on the same basis as anyone else. An employee who on his own initiative
applies for and obtains a job elsewhere in the enterprise would not be described as having been 'reassigned';
the core word 'assign' implies some active effort on the part of the employer." Smith v. Midland Brake,
Inc., 180 F.3d 1154, 1164 (10th Cir. 1999); Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir.
1998). The other federal circuits have not ruled on this issue to date.

         2.   The Huber Decision (Huber v. Wal-Mart, 486 F.3d 480 (8th Cir. May 30, 2007)

Facts: Pam Huber filed suit against Wal-Mart for discrimination in violation of the ADA and the Arkansas
Civil Rights Act. Huber worked as a dry grocery order filler until sustaining a permanent injury to her right
arm and hand which prevented her from being able to fulfill the essential functions of her job. Huber
requested a reassignment to a vacant, equivalent position, and at that time, there was an open router
position at the facility. Wal-Mart considered her, along with other applicants, for the router position and
ultimately awarded the position to another employee. Huber did not deny that the other employee was the
best qualified applicant. Huber was reassigned to a maintenance associate position where she was paid less


                                                    17
than half of her previous hourly salary. She sued Wal-Mart, alleging that she should have been given
preference for the router position because of her disability.

Issues and Decision: The lower court determined that an exception was necessary to Wal-Mart's policy
requiring that it hire only the most qualified candidate in order to provide for accommodations in
compliance with the ADA. In May 2007, the 8th Circuit reversed this decision, siding with other federal
circuit courts which have held that the ADA is not an affirmative action statute and "does not require an
employer to reassign a qualified employee with a disability to a vacant position when such a reassignment
would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate."

On December 7, 2007, the U.S. Supreme Court granted certiorari in Huber and agreed to consider whether,
under the ADA, Wal-Mart was required to reassign Huber notwithstanding the fact that she was not the
most qualified candidate for the position. The Supreme Court's decision would have settled this question
in all of the circuits.

Settlement: On January 14, 2008, the parties reached a confidential settlement agreement and Huber
withdrew her appeal. Therefore, the issue of whether an employer has to ignore its policy of filling
vacancies with the most qualified applicant in order to accommodate an employee who has a disability and
needs to transfer to another job is still in dispute.

         3.   Recent Court Decisions

              a.   Court Holds that the Hiring of a More Qualified Applicant Is Not a Defense to a
                   Rehabilitation Act Claim

Case: Alston v. Washington Metro. Area Transit Auth., 571 F. Supp. 2d (D.D.C. 2008).

Facts: Donna Alston was working as a bus cleaner for the Washington Metropolitan Area Transit
Authority ("WMATA") in April 2005, when she was declared medically ineligible for her job due to a
respiratory impairment. Because her employment was covered by a collective bargaining agreement,
Alston was retained as an employee and was given three years to seek reassignment to another position.
Alston applied for over 70 jobs with WMATA, both before and after she was declared medically ineligible
for the bus cleaner job. She was not hired for any of them, and in January 2007, she sued, alleging that
WMATA failed to provide her with a reasonable accommodation as required by the Rehabilitation Act.
Only two of the jobs Alston applied for were at issue on the parties' cross-motions for summary judgment
and the court denied both motions. In the fall of 2005, Alston applied for the position of Job Access
Information Assistant, but the job was filled by an applicant that both parties agreed was more qualified
than Alston. The second job, a receptionist's position, was posted but Alston never applied for it. When it
was re-posted, she did not receive the job vacancy announcement but alleged that if she had known of the
vacancy, she would have applied.

Issues and Decision: In its analysis, the court first noted that both of the positions that Alston sought were
filled by applicants who were more qualified. WMATA argued that, even assuming that Alston could
establish a prima facie case, her right to reasonable accommodation through reassignment must give way to
its policy of hiring the most qualified applicant for a vacant position. Alston, on the other hand, argued that
the Rehabilitation Act required more of WMATA than simply providing her with the opportunity to
compete with other candidates for a vacant position. Noting the split in the circuits, the court held that it
was bound by the D.C. Circuit's prior decision in Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (1998)
(discussed above), and denied WMATA's motion for summary judgment. The court also noted, in support
of its holding, that the EEOC has also weighed in on the issue and has stated that, with regard to

                                                    18
reassignment to a vacant position, an employee with a disability "does not need to be the best qualified
individual for the position in order to obtain it as a reassignment."

    B. Selected Court Decisions Regarding Reasonable Accommodations

         1.   Two Weeks' Leave to Consult Specialist Was Not Reasonable Accommodation Where Employee
              Could Not Show that It Would Allow Him to Perform the Essential Functions of His Job

Case: Graves v. Finch Pruyn & Co., No. 09-1444, 2009 U.S. App. LEXIS 25142 (2d Cir. Nov. 17, 2009)
(This case was previously reported in the 2007 State Bar ADA presentation. At that time, the Second
Circuit had reversed and remanded summary judgment in favor of the employer based on its finding that
there was a question of fact whether the employee's implied request for unpaid leave was "cut off" by the
employer).

Facts: George Graves, a paper inspector in Finch Pruyn's quality assurance department, was diagnosed in
1999 with a bone spur on the heel of his left foot, a painful condition requiring surgery and treatment.
Because paper inspectors are on their feet for much of their shifts, Finch Pruyn assigned Graves to "light
duty" in the months preceding surgery to accommodate his foot pain. After surgery in May 2000, Graves
spent three months on paid disability leave and returned to work on light duty in September 2000. At the
end of October 2000, the company put Graves back on paid disability leave, informing him that no more
light duty work was available. Graves' entitlement of six months of paid disability leave ran out in
December 2000. On January 4, 2001, Finch Pruyn's human resources director gave Graves three options:
(1) immediate return to full duty; (2) reassignment to a desk job with a 64% pay cut; or (3) disability
retirement. Graves elected to take disability retirement, but at his request, the company allowed him to
work for the quality assurance department in a sedentary job until the end of January 2001, giving him an
income stream while he arranged for disability retirement. During this period, Graves did clerical office
work and trained a new paper inspector. Following the termination of his employment, Graves sued,
alleging that Finch Pruyn violated the ADA when it failed to accommodate his disability. The district court
granted summary judgment and Graves appealed, arguing that the company should have provided him with
additional unpaid leave to consult a foot specialist about rehabilitation. Finch Pruyn argued that it was not
required to provide Graves with an accommodation he did not request. Graves, however, testified that
while he did not use the phrase "unpaid leave of absence," he did communicate to the HR manager that his
physician had recommended a foot specialist, that he was trying to make an appointment with the
specialist, and that it would take a "couple [of] weeks." He further testified that in response, the HR
manager told him that there was no more time. Characterizing its decision as a "close call," the Second
Circuit reversed and remanded, holding that a reasonable jury could infer that Graves was in the process of
requesting an unpaid leave of absence in order to obtain an appointment and consult a specialist, and that
"Finch Pruyn cut off this request." On remand, the district court again granted summary judgment and
Graves again appealed.

Issues and Decision: On appeal, the court first noted that the issue before it was whether the requested
accommodation of additional leave time was a "reasonable accommodation" in that there was a question
whether it would likely result in Graves' return to work. Although the Second Circuit has never expressly
held that a leave of absence from an employee's job taken in order to recover from a disability is a
reasonable accommodation, assuming that they are, the court observed that "they must enable the employee
to perform the essential functions of his job." Moreover, the court observed, the employee must show that
the accommodation will "allow him to do so at or around the time at which it is sought." Graves, the court
then held, failed to make a prima facie case that his requested accommodation of two weeks' unpaid leave
to consult with a specialist was a reasonable accommodation because there was no assurance "whatsoever"
that the requested accommodation would allow Graves to perform the essential functions of his job.
                                                   19
Focusing on medical reports in evidence, the court observed that although there was some evidence that
Graves' doctors through that consulting a specialist might be helpful, there was overwhelming evidence that
the doctors were of the opinion that he would never be able to return to his previous job and that even with
additional surgery, there would probably still be restrictions on the amount of walking, standing, lifting and
carrying that he would be able to do. The court also dismissed Graves' argument that Finch Pruyn failed to
engage in the interactive process, noting that it has consistently held that an employee may not rely on an
employer's failure to engage in the interactive process where he cannot make a prima facie showing that a
reasonable accommodation existed at the time of the adverse employment action. Based on this reasoning,
the court affirmed summary judgment in favor of Finch Pruyn.

         2.   Employer Is Not Required to Engage in Interactive Process Where No Reasonable
              Accommodation Is Possible

Case: McBride v. BIC Consumer Prods. Mfg., No. 07-5689-CV, 2009 U.S. App. LEXIS 21771 (2d Cir.
Oct. 5, 2009).

Facts: Sandra McBride was a long-time employee of BIC, a manufacturer of writing instruments, shavers
and lighters, when she first became ill from the chemical fumes in her workplace. In June 2001, she
reported her illness to BIC, stating that she was suffering from a respiratory ailment as well as panic and
anxiety attacks. After consulting various medical and psychiatric practitioners, McBride took a medical
leave of absence. In May 2002, she contacted BIC about the possibility of resuming her employment. In
connection with this request, BIC received restrictions from her physician that she should avoid "chemical,
solvent or ink fumes, as well as any other hydrocarbon fumes" and should avoid "any inappropriate hassles
or threatening conditions." On June 5, 2002, McBride met with a BIC supervisor, who offered her the use
of a respirator, which would accommodate the "avoidance of fumes" restriction. She rejected this offer and
there was no other discussion of potential accommodations. At the conclusion of the meeting, the
supervisor told McBride not to report to work the next day. Approximately a month later, upon the
expiration of her 12-month medical leave, BIC notified her that her employment was being terminated. In
the letter, BIC noted as grounds for the termination the fact that she rejected the offer of a respirator and
proposed no alternative accommodation that would allow her to return to work. She sued, claiming a
failure to accommodate. The district court granted summary judgment in favor of BIC, and McBride
appealed, arguing in part that BIC violated the ADA when it failed to engage in the interactive process to
identify a reasonable accommodation and that it violated the ADA by failing to transfer her to another
position.

Issues and Decision: While McBride made a sufficient showing that she had a disability at the time of her
termination, the court first observed that, the question before it was whether she made a sufficient showing
that, with reasonable accommodation, she could perform the essential functions of her job and that BIC
failed to make the appropriate accommodations. The court rejected all of her arguments, noting first that
she provided no evidence that there existed any potential accommodation that would have allowed her to
continue to work, regardless of the form of the accommodation. At the June 5 meeting, she suggested no
potential accommodations and rejected the accommodation offered by BIC. Indeed, the court observed, at
a hearing on summary judgment in the lower court and during oral argument on appeal, she conceded that
she was unaware of any such accommodation. The court also rejected her "failure to transfer" argument,
stating that she failed to identify a suitable position to which she could have been transferred. In order to
prevail on this claim, the court observed, she must "demonstrate the existence, at or around the time when
accommodation was sought, of an existing vacant position to which she could have been reassigned." In
addition, the identified position must be one for which McBride was qualified and may not be a position
which would involve a promotion. The record revealed that most of the positions open at the time of
McBride's termination would have involved a promotion, or required extensive applicable professional
                                                    20
experience, proficiency with a variety of business software packages, and in many cases, a college degree,
all qualifications which McBride lacked. One vacant position for which she was qualified would have
required her to be in the manufacturing area of the facility, where she would have been exposed to chemical
fumes, a requirement that was incompatible with her disability. Turning to McBride's assertion that BIC
failed to engage in a sufficient interactive process to develop a mutually agreeable accommodation of her
disability, the court held that even if this assertion were true, the ADA does not impose liability for the
"mere refusal to explore possible accommodations where, in the end, no accommodation was possible."
Based on these findings, the court affirmed summary judgment in favor of BIC.

         3.   Court Holds That the Fact That an Employer Allowed Employee With a Disability to Work a
              Modified Schedule in the Past Does Not Make It a Reasonable Accommodation

Case: Webb v. Donley, No.07-00471-CV-D-N, 2009 U.S. App. LEXIS 20411 (11th Cir. Sept. 14, 2009)
(unpublished).

Facts: Belinda Webb began her employment with the Department of the Air Force in 1997. During her
employment, she was a Project Manager, managing and supervising contract employees staffing computer
help desks, and was ultimately responsible for the operations of the help desks, including working
conditions, equipment and work product. In 1998, Webb sustained injuries in an off-duty accident, and
was determined to be disabled under the Social Security Act from March 1998 until January 2001 based on
the following conditions: fibromyalgia, myofascial pain syndrome, carpal tunnel syndrome and
degenerative joint disease. In 2001, she suffered a fall which resulted in her being placed on workers'
compensation and being relieved from duty from August 2001 to August 2003. From August 2003 to
November 2004, pursuant to restrictions, she worked in her Project Manager position for four hours per day
and received workers' compensation payments for the other four hours. In January 2004, she was released
to return to full-time duty, as long as she was able to split the day—working 4 hours at the office and 4
hours at home. In September 2004, Webb was examined by a workers' compensation physician and was
released to return to full-time work with four-hour limits on various activities, and a ten-minute break each
hour. She worked from November 2004 to May 2005 without incident. However, beginning in May 2005,
she began to miss work and on May 24, her primary physician notified the workers' compensation office
that her medical condition rendered her incapable of maintaining full-time employment and recommended
that she work on a part-time basis for four hours per day. Webb immediately requested a series of leaves
without pay and never returned to work. On March 26, 2007, she was terminated based on her continued
unavailability for work, absenteeism and inability to work a regular schedule. She sued, alleging a failure
to accommodate, and the court granted summary judgment in favor of the Air Force. According to the
district court, although Webb never articulated it, Webb apparently was arguing that she could have
performed the essential functions of her job if she had been granted the accommodation of a modified
schedule, permitting her to work 4 hours a day at home and the other 4 hours at the office. Webb appealed
the district court's disposition to the 11th Circuit.

Issues and Decision: In an unpublished opinion, the court of appeals addressed her assertion that the Air
Force failed to accommodate her disability by allowing her to work on a modified schedule. The court
rejected her argument, first noting that although part-time or modified work schedules may be reasonable
accommodations, an employer is not required to reallocate job duties or change the functions of a job. In
Webb's case, the court observed, the Air Force presented evidence that a modified schedule was
unreasonable because her presence at the worksite was an essential function of her supervisory position.
Although the Air Force had previously permitted her to work a modified schedule, the court noted,
precedent holds that "the fact that an employer previously has granted a requested accommodation does not
render that accommodation reasonable." Additionally, the court observed, Webb produced no evidence

                                                   21
showing that she would have been able to perform her job functions while working a modified schedule.
Accordingly, the court affirmed summary judgment in favor of the Air Force.

        4.   Appeals Court Affirms More Than $1.3 Million Jury Verdict on Failure to Accommodate Claim

Case: Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121 (1st Cir. 2009).

Update: This case was first reported in Developments in Disability Discrimination Law 2003-2005,
presented at the 14th Annual Advanced Employment Law Course on February 2, 2006. In that reported
decision, the district court granted summary judgment in favor of the employer. However, Tobin appealed
to the First Circuit, which affirmed in part and reversed and remanded in part, finding issues of fact as to
whether Liberty Mutual had failed to provide a reasonable accommodation. The case was tried before a
jury, and a verdict of more than $1.3 million was rendered in Tobin's favor, based on Liberty Mutual's
failure to accommodate Tobin's disability. Liberty Mutual appealed the verdict to the First Circuit, which
rendered its decision on January 23, 2009.

Facts: Kevin W. Tobin was hired by Liberty Mutual Insurance Company ("Liberty Mutual") on September
17, 1964, in an administrative position. In May 1968, Tobin began working as a Sales Representative,
which required him to sell various types of insurance policies. However, from 1993-2000, Tobin's sales,
prospecting, and performance did not meet Liberty Mutual's expectations. Specifically, Tobin was
consistently unable to meet Liberty Mutual's sales quotas. In April 1996, Tobin's supervisor issued Tobin a
written warning and informed Tobin that failure to meet the sales requirements for a 30-day period would
lead to a 60-day probation, followed by possible termination. On November 21, 1997, Tobin's supervisor
placed him on a nine-week warning period and gave him until January 23, 1998, to demonstrate increased
sales.

In December 1997, Tobin took a leave of absence and, in March 1998, provided medical certification that
he had been diagnosed as bipolar and depressed. According to his doctor, he was significantly restricted in
interpersonal relations, daily occupational and social activities, and all work-related activities. Tobin
returned to Liberty Mutual on June 15, 1998. He was permitted to work a reduced schedule for his first
four weeks back, but by July 20, 1998, was phased back into full-time work as a Sales Representative.
Upon resuming his full-time duties, Tobin's warning period was reinstated.

In September 1998, Tobin took a second leave of absence. This time, his doctor indicated that Tobin was
suffering from "bipolar disorder plus manic." According to his doctor, Tobin was restricted in a manner
similar to his prior absence and further stated that Tobin could not "grasp how to cope with work" and that
he became "more fixed, confused, irritable and disorganized as productivity decreases, which in turn
exacerbates problems." When Tobin returned to work in 1999, Liberty Mutual hired a nurse to assist him
in resuming his position as a Sales Representative. After an initial period of working reduced hours, Tobin
resumed full-time duties on February 1, 1998. His warning period was reinstated, but was revised to run
until February 26. Tobin was further told that if he did not sell at least 24 new policies during the four
week warning period, he would begin a four week probation period.

At the end of the warning period, Tobin was deemed to have satisfied his requirements. However, he was
told that, beginning March 1, 1999, his per capita sales would be monitored to ensure that he was meeting
the minimum standard. He was also informed that he would be expected to meet or exceed 276 new
business sales for the February 1-December 1, 1999 period. At the end of his first four week monitoring
period, Tobin was placed on probation for failing to meet the minimum sales requirements. At that time, he
was warned that if he did not sell a minimum of 30 policies within the five week probationary period
ending April 30, 1999, he could be terminated. Again, Tobin successfully completed the probationary

                                                   22
period, but was told that, once again, his sales would be monitored and that he would be required to meet
the quota of 78 new policies for each 13 week quarter and 276 policies for the period of February 1, 1999
to the end of 1999. In October 2000, Tobin was once again issued a warning because his performance had
begun to deteriorate. On November 27, 2000, Tobin was placed on probation for the second time and was
told that he was expected to sell at least 30 new policies for the new probationary period (November 27,
2000 to January 5, 2001). On December 20, 2000, Tobin was informed that, as of December 15, 2000, he
had sold only nine new policies since the start of his new probationary period. He was further informed
that he was required to sell a minimum of 30 policies by January 5, 2001, and that a failure to do so would
result in additional action, up to and including termination. When Tobin failed to sell the required 30
policies, he was terminated on January 10, 2001. Tobin filed suit alleging discrimination under the ADA.

Issues and Decision: During the jury trial, arguing that Tobin could not demonstrate that he was a
qualified individual under the ADA at the time of his discharge because he was unable to perform the
essential functions of his job with or without accommodation, Liberty Mutual relied extensively upon
Tobin's documented failure over the course of many years prior to his termination to meet its minimum
sales requirements. Tobin alleged that he would have been able to meet his quota with a reasonable
accommodation. Tobin argued that he requested two accommodations: (1) that he be assigned mass
marketing accounts ("MM accounts"); and (2) that he receive increased clerical assistance. Tobin alleged
that providing increased support staff to respond to customer service calls would have freed him up to
devote more time to sales. Mass marketing accounts are group insurance programs offered to businesses
and other institutions in which employees or members are able to purchase insurance policies at a discount.
These accounts offer access to a large volume of potential clients in a single location and it is not
uncommon for more than a dozen individuals whose employer has newly signed up for an MM account to
meet with a sales representative at their workplace in back-to-back time slots on a single day. According to
Tobin, had he received these two accommodations, he would have been able to meet Liberty Mutual's sales
quotas.

Liberty Mutual, however, argued that Tobin was provided with the support staff he needed and that he was
not qualified to handle an MM account. Liberty Mutual argued that the assignment of MM accounts was
not a reasonable accommodation because these accounts were distributed solely on the basis of merit to
sales representatives who were actively pursing other such accounts and who otherwise were meeting their
sales quotas. Company representatives also testified that managing an MM account required strong
organizational and time-management skills because of the need to move from task to task when meeting in
rapid succession with many individuals. Evidence was produced that MM sales encounters were
particularly stressful and the company attempted to show that Tobin could not have performed the job even
with the accommodation of an MM assignment. Liberty Mutual also attempted to show that service
support was available to Tobin, but he chose not to take advantage of it and handled too many service calls
himself. The jury disregarded Liberty Mutual's argument and found in favor of Tobin, awarding him over
$1.3 million in damages.

On appeal, Liberty Mutual argued that the evidence presented during trial was insufficient to prove that
assigning MM accounts to Tobin would have been a reasonable accommodation. The assignment of MM
accounts to Tobin would have been unreasonable, Liberty Mutual argued, in that his poor sales
performance made him ineligible for MM assignments. Citing Supreme Court precedent for the
proposition that an accommodation request "cannot be deemed unreasonable solely because the employee
with a disability has failed to satisfy standard eligibility requirements for the benefit," however, the court
held that Liberty Mutual's first argument failed. Likewise, the court rejected Liberty Mutual's analogy of
its assignments of MM accounts to a seniority system, which was presented along with its argument that
Tobin should not be allowed to circumvent the company's established assignment policy. Further, the court

                                                    23
pointed to evidence produced at trial that showed that the accounts were awarded on a case-by-case,
discretionary basis and were not always as a reward for performance. Testimony revealed that some new
sales representatives were given MM accounts to "jump start" their business. Another manager testified
that some low-producing sales representatives also received MM accounts because they did not have
Tobin's extended history of failing to meet minimum standards. Both Tobin's sales manager through 1998
and his assistant regional sales manager during the relevant period testified that they had the discretion to
provide Tobin with MM accounts but they chose not to do so.

Liberty Mutual's second argument was that Tobin's disability made him incapable of handling the stressful,
fast-paced MM sales process. Although the court found that this argument was more "substantial," it held
that there was sufficient evidence before the jury for it to conclude that assignment to an MM account
would have enabled Tobin to achieve his sales quotas and thus perform the essential functions of his job—
making the assignment to MM accounts a reasonable accommodation. In particular, the court pointed to
the testimony of Tobin's sales manager, who testified that he had not given Tobin an MM account because
of his long-standing underperformance rather than because of any concern that he would be unable to
manage them. In fact, the manager agreed that it "could be a reasonable assumption" that Tobin would
have been able to sell more policies if he had more access to people who wanted to buy insurance and
admitted that Tobin's sales would have improved if he had been assigned MM accounts. Additionally,
another manager testified that some MM accounts were "relatively easy" to handle because appointments
could be pre-scheduled or individual interviews could be spaced farther apart, thus reducing time pressure.
Based on this reasoning, the court affirmed the judgment of the lower court and dismissed Liberty Mutual's
appeal.

         5.   Employer Is Not Required to Accommodate Employee Taking Narcotic Pain Medications by
              Providing Him with a Driving Test

Case: Quinney v. Swire Coca-Cola USA, No. 2:07-cv-788-PMW, 2009 U.S. Dist. LEXIS 42098 (D. Utah
May 18, 2009).

Facts: Douglas Quinney worked for Swire Coca-Cola USA from 1984 until his termination in August
2002, when he was approved for long-term disability. At the time of his termination, he was an Account
Manager, a position that is impossible to perform without driving. Quinney's saga began in April 2000,
when he was diagnosed with ankylosing spondylitis, a chronic, inflammatory arthritis and autoimmune
disease that mainly affects joints in the spine and the sacroilium in the pelvis. He began taking narcotic
painkillers and over the next eighteen months, the amount of drugs he was taking rapidly increased. His
physician, concerned that he was misusing his pain medication, eventually referred him to a pain
management specialist. In December 2001, after learning from one of Quinney's co-workers that he was
abusing or overusing narcotic medication, Swire placed him on a paid leave of absence while he was tested
for drugs pursuant to his consent. Based on a positive drug test result, the company's policy on drug and
alcohol abuse, and a medical review officer's opinion that Quinney should not operate a company vehicle
while taking narcotic pain medication, Swire placed Quinney on paid leave and informed him that he could
not return to work in his Account Manager position until he ceased taking narcotic pain medication.
Quinney, however, chose not to cease taking the medication but rather attempted to obtain a release from
his physicians stating that he was capable of safely operating a motor vehicle while taking his present
medication. None of his physicians were willing to provide him with such a release, although one
physician stated in general terms in his report that if Quinney were to obtain normal results on an objective
independent driving test through the rehabilitation department of the University of Utah Hospital, he would
have no concerns about his continuing to drive for Swire. The physician later clarified this statement by
testifying that he would not have cleared Quinney to drive without taking the test. Quinney never took the
test, and in January 2002, began leave under the FMLA. When that leave expired, he went on short-term
                                                   24
disability until June 2002, at which time his short-term disability leave expired. Quinney promptly filed a
discrimination charge against Swire, alleging disability discrimination. Also in June, Quinney applied for
long-term disability and Social Security disability benefits. In July 2002, during a resolution conference on
his discrimination claim, Quinney requested that Swire permit him to return to work in his Account
Manager position. Swire declined, but did offer to transfer him to any open position for which he was
qualified. Beginning in July, Swire met with Quinney on a weekly basis and offered him every open
position for which he was qualified that did not involve operating a vehicle as an essential function.
Quinney rejected all of these offers, and when his application for long-term disability benefits was
approved, he was terminated. Quinney filed suit against Swire, alleging, among other things, a failure to
accommodate.

Issues and Decision: Quinney first argued that his ability to drive safely was demonstrated by the fact that
he had been driving for many years without incident. The court flatly rejected this argument, stating that
not only was that fact irrelevant to the question whether he had actually been driving safely, but also that it
was Swire's right to rely on the opinions of medical professionals in concluding that he was unable to drive
safely. Quinney's next argument was that Swire should have accommodated him by permitting him to take
a driving test, where he could have demonstrated his ability to drive safely. This assertion, the court
concluded, amounted to a request for a reasonable accommodation. The court addressed this argument,
even though Quinney admitted that he never requested any accommodation and thus failed to fulfill his
own obligations under the ADA. The court further held that Swire was not required under the ADA to
permit Quinney to take the driving test as an accommodation, but rather was entitled to rely on the medical
opinions of its own physicians as well as Quinney's physicians, that he was unable to operate a vehicle
safely, whether he took the driving test or not. Thus, Quinney's attempt to assert the driving test as a
reasonable accommodation failed.

Quinney also argued that Swire could have reasonably accommodated him by reassigning him to another
position—asserting that he was willing to "do anything" to remain employed at Swire. The court also
rejected this argument, noting first that Quinney failed to identify any alternative position for which he was
qualified and which was denied to him. The court also pointed to evidence showing that although Swire
met with Quinney on four separate occasions in a six-week period to assist him in his job search, he
rejected every open position that was offered to him by Swire. Based on these conclusions, the court
granted summary judgment in favor of Swire and dismissed Quinney's claims.

         6.   No Violation of ADA for Failure to Accommodate Where Employer Did Not Know of
              Employee's Impairments at the Time She Requested Transfer

Case: Keeler v. Florida Dep't of Health, 21 A.D. Cas. (BNA) 1645 (11th Cir. Apr. 27, 2009).

Facts: Karen Keeler began working for the Florida Department of Health (the "Department") as a Records
Technician in September 2003. In September 2004, Keeler told supervisor Bonnie Cain that she wanted a
transfer to a vacant Senior Clerk position, a demotion. During this conversation, Keeler began to cry and
explained that her current position was too stressful. In a follow-up email later that month to Cain, Keeler
reiterated her request for a transfer to the Senior Clerk position and again mentioned that the stress and
volume of work in her current position was "more often than not, overwhelming." Sometime thereafter,
Cain informed Keeler that her (Cain's) supervisor, Alan Shaffren, had denied Keeler's request for a transfer
because he does "not like to demote his employees" and that he felt that she was doing fine in her current
position. In a subsequent meeting on October 22 with Cain and another supervisor, Keeler admitted that
she had been working unauthorized overtime in order to complete her work. During this meeting, she again
"broke down" and started crying. Later that same day, Cain observed Keeler leaving work forty minutes
after the end of her shift. When Cain subsequently questioned her, Keeler denied working overtime and
                                                    25
said she was in the ladies' room making phone calls. Cain sent Keeler a memorandum of counseling dated
October 26, in which she advised Keeler that working unauthorized overtime was a violation of policy, and
that failure to complete her work in a timely manner constitutes poor performance. Keeler responded to
this memo in writing, revealing for the first time that she suffers from attention deficit hyperactivity
disorder (ADHD), a neurological disability, and obsessive-compulsive disorder, and that she had been
taking daily medication for these conditions. She also claimed that the recent discussions regarding her job
performance had created an even greater amount of stress and pressure that was hindering her performance
and that she had requested a transfer to avoid her "current stressful position." Keeler was eventually
terminated for working unauthorized overtime, and for lying to Cain when questioned about it. She sued,
alleging, among other things, failure to accommodate under the ADA, a claim that was based on the
Department's failure to transfer her to the Senior Clerk position as requested.

Issues and Decision: Although Keeler admitted that she never revealed her impairments prior to the
counseling session with her supervisors, she argued that they nevertheless should have been aware of her
disabilities based on her contention that her job was too "stressful" and that the volume of work was
"overwhelming." These "buzz words" Keeler contended, "indicated an underlying problem that should
have been addressed." Keeler also argued that Cain and the other supervisors should have been aware of
her disabilities because she cried when she requested a transfer and she had a habit of taking "copious
notes," which, according to her, is a symptom of her OCD, ADHD and anxiety. The court rejected her
arguments, holding that the Department did not know of her alleged impairments at the time it denied her
request for a transfer. In her deposition, Keeler admitted that at the time she requested the transfer,
"nobody knew" of her disabilities and she did not disclose them until after the Senior Clerk position had
been filled. Further, the court rejected Keeler's contention that Cain and the others should have known that
she had a disability because of her crying and other "symptoms." This behavior, the court observed, was
not sufficient to put the Department on notice that Keeler had a disability because it in no way suggested
that Keeler was substantially limited in any major life activity. Because Keeler could not raise a viable
claim for failure to accommodate, the court dismissed her ADA claim.

VIII. MISCONDUCT AND DISABILITIES

    A. No ADA Violation Where Employer Terminated Physician Who Threatened to Kill Supervisor and
         Co-Workers

Case: Bodenstab v. County of Cook, 569 F.3d 651 (7th Cir. 2009).

Facts: Dr. Philip Bodenstab, an anesthesiologist, was hired by Cook County Hospital in Chicago in 1993.
In early 2002, Bodenstab phoned a friend who lived in Seattle and told her that he had been diagnosed with
a cancerous lesion on his lip, that he was going to the Mayo Clinic, and that if the cancer had metastasized,
he was going to kill his supervisor and other co-workers. Concerned that he was serious, the friend
contacted the Chicago police and the Seattle FBI office. The police and the FBI initiated an investigation
and alerted the hospital that the threats were credible. Bodenstab was suspended with pay and directed to
make an appointment with a forensic psychiatrist for a fitness-for-duty evaluation. Bodenstab was
eventually assessed and treated but his discharge summary, while stating that he was fit to return to work,
also indicated that he should not return "to a work situation that is emotionally, politically, or
interpersonally charged." The summary also recommended long-term psychiatric monitoring and
therapy—recommendations that Bodenstab apparently ignored. After Bodenstab's discharge, the Hospital
asked its own psychiatrist, Dr. Deepak Kapoor, to interview him. Dr. Kapoor not only expressed concern
that Bodenstab "exhibited paranoia and interpersonally charged issues," but also that he, Dr. Kapoor, feared
for his own safety. Following a disciplinary hearing, Bodenstab was notified by the Hospital that he was


                                                   26
being terminated based on his threats to kill his supervisor and other co-workers. He sued, alleging that his
termination was a violation of the ADA.

Issues and Decision: In response to Bodenstab's claims of discriminatory termination, the Hospital
repeatedly maintained that he was terminated solely because of the threats he made against his co-workers.
Bodenstab argued that by terminating him, the Hospital discriminated against him and failed to
accommodate his psychiatric condition. The court held, however, that the Hospital was under no legal
obligation to accommodate his conduct—as opposed to his disability—even if the threats were somehow
related to his disability. Bodenstab also argued that he was terminated in retaliation for engaging in
protected activities under the ADA—namely requesting reinstatement, complaining about being forced to
undergo psychiatric evaluations, and asserting possible reasonable accommodations. The court also
rejected this argument, again pointing to the fact that the Hospital produced credible evidence that his
termination was based on the threats he made against co-workers and the fact that Bodenstab produced no
evidence linking any of the complained-of activities with his termination. Based on this reasoning, the
court affirmed summary judgment in favor of the Hospital.

    B. Employer Is Not Required to Excuse Misconduct that Occurs Before Disability Is Revealed

Case: Heard v. St. Luke's Hospital, No. 08-5494, 2009 U.S. Dist. LEXIS 89124 (E.D. Pa. Sept. 28, 2009).

Facts: Ryan Heard worked as a security guard on the night shift at St. Luke's Hospital for seven years and,
prior to his termination, enjoyed an exemplary performance record. At some unnamed time during his
employment, Heard alleged that he requested a shift change due to "stress." He further alleged that when
the shift change was denied, his "condition" exacerbated. On January 13, 2007, Heard was in a car accident
near the hospital when he was just moments away from reporting for his scheduled shift. As a result of the
accident, Heard was arrested for driving under the influence—with a blood alcohol level at nearly twice the
legal limit. At some point he signed a corrective action notice, indicating that he had been found to be
impaired on the way to work his scheduled shift. On the day after the accident, Heard was diagnosed with
major depression and the Hospital approved medical leave for approximately one month so that he could
receive treatment. On the following day, he informed his manager that he would not be returning to work
until his doctor cleared him. In early February, Heard met with managers at the Hospital, who told him that
his employment was being terminated based on the January 13 incident and his "poor judgment." Heard
then told the managers of his diagnosis of major depression and asked to participate in the Employee
Assistance Program, a request that was twice denied because he did not qualify for the discretionary
program. Heard also argued that the accident had nothing to do with the hospital since it occurred on his
own time, before he reported for work. Although he attempted to have the discharge rescinded, the
Hospital reaffirmed his termination by letter, citing his poor judgment—intending to report to work while
intoxicated—which posed serious risks not only to Heard, but also to the Hospital's patients, visitors and
staff. Heard sued, alleging disability discrimination, and the Hospital filed a motion to dismiss.

Issues and Decision: Heard argued that the Hospital failed to participate in the interactive process when it
refused to grant him the shift change and when it refused to rescind his termination. The court noted,
however, that Heard never made the Hospital aware that he had any substantially limiting impairment until
after he engaged in the misconduct which led to his termination. Heard admitted that the decision to
discharge him was made while he was still on medical leave and prior to his disclosure of his purported
disability to his employer and his request for accommodation. Liability cannot be established, the court
held, "where an employee engages in misconduct, learns of his resultant termination, then informs his
employer of an impairment and requests an accommodation." Even the EEOC, in its Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, has weighed in on the issue,
finding that "since reasonable accommodation is always prospective, an employer is not required to excuse
                                                   27
past misconduct even if it is the result of the individual's disability." Based on these findings, the court
dismissed Heard's claim, finding that the Hospital had a legitimate, nondiscriminatory reason for
terminating his employment.

    C. Employee with PTSD Was Legitimately Terminated for Misconduct Where He Violated Employer's
        Policies

Case: Pacenza v. IBM Corp., No. 04-Civ.-5831 (PGG), 2009 WL 890060 (S.D.N.Y. Apr 02, 2009).

Facts: At the time of his termination in May 2003, James Pacenza had worked for IBM for 19 years.
Pacenza suffers from PTSD, allegedly from his service in Vietnam and sexual abuse he suffered as a child.
He alleged that he has developed addictive tendencies as a result of his PTSD, including alcoholism, food
addiction, and sex addiction. He began therapy for his sex addiction in the early to mid-90's, and attended
various self-help group meetings during that period. He took a leaves of absence in 1997 and 1998 to
receive in-patient psychiatric treatment and spent approximately a year in a halfway house. He also began
psychotherapy with a Dr. DeRosalia, who continued to treat him after his termination. All of Pacenza's
medical care was funded by IBM's health care plan, and despite Pacenza's allegations, he claimed that his
PTSD has never had any affect on the performance of his duties at IBM.

IBM's policy permits employees to use its systems for direct business purposes as well as for "general
information of personal interest." In late 2002 or early 2003, a co-worker reported to Joseph Mihans,
Pacenza's direct supervisor, that Pacenza had been accessing inappropriate Internet sites on his work
computer. The co-worker described the material as "graphic" and "pornographic in nature." Mihans spoke
with Pacenza and warned him that IBM's policy prohibits "look[ing] at anything that could be considered
offensive on the intermet." Mihans alleged that he informed Mihans about his sexual addiction, that he was
getting help, and that it would never happen again. However, in May 2003, another complaint was made to
Mihans about Pacenza's inappropriate use of his work computer. When Pacenza left his computer to
operate another employee's computer while he was at lunch, Pacenza's team leader, Steve Questal, replaced
Pacenza at his computer. When Questal toggled the computer screen, he saw that Pacenza had been logged
on to a chat room where performing sexual acts was being discussed. Questal described the chat room as
"pornographic" and "sexual in nature." Questal reported Pacenza's accessing of the chat room to Mihans.
After consulting human resources, Mihans terminated Pacenza for his inappropriate use of his work
computer. Pacenza sued, alleging, among other things, disability discrimination under the ADA.

Issues and Decision: The court granted IBM's motion for summary judgment on all of Pacenza's claims,
including his claims under the ADA. First, the court held, Pacenza did not establish a prima facie case of
disability discrimination because he failed to demonstrate that his employer—specifically Mihans, the
supervisor who made the decision to terminate him—was aware of his alleged PTSD disability. Pacenza
argued that the fact that he told Mihans about his longstanding sexual addiction when he was first
admonished about his inappropriate Internet usage would not have put Mihans on notice of his PTSD. As
the court stated, there was no reason to believe that Mihans would assume Pacenza had PTSD merely
because Pacenza disclosed his Internet sex addiction.

The court also rejected Pacenza's allegation that IBM's medical records revealed that he had PTSD. The
court found that not only was there no evidence in the record to support this contention, but even if his
records had disclosed his PTSD, there was no evidence that Mihans or any of the human resources officials
involved in the decision to terminate had ever accessed any of Pacenza's medical records. Finally, the court
rejected Pacenza's disparate treatment claim, which he based on the theory that there was a significant
distinction between accessing sexually explicit images and sexually explicit language. IBM, however,
provided evidence, which the court considered to be "ample," that IBM had terminated non-disabled

                                                   28
employees for similar conduct. Three employees were fired for sending out vulgar e-mail and another for
sending "an inappropriate sexual message on IBM's computer system." Thus, the court observed, IBM had
terminated employees in the past who accessed or sent out vulgar or sexually oriented text.

    D. Employer's Motion for Summary Judgment Denied Where Employee Was Terminated for
         "Disruptive Behavior" After Making Repeated Requests for Accommodation

Case: Mayer v. Future Electronics GP Corp., No. 2:07CV46-SA-SAA, 2008 U.S. Dist. LEXIS 81976
(N.D. Miss. Oct. 15, 2008).

Facts: Jean Mayer worked for Future Electronics ("Future") from July 1991 until her termination in March
2006. In 2003, Mayer was diagnosed with breast cancer and following surgery, she was given a variety of
lifting restrictions by her doctor, culminating in a 2005 restriction limiting her to lifting no more than two
to three pounds. In July 2004, Mayer transferred from Future's plant in Bolton, Massachusetts to its
Southaven, Mississippi plant. Upon her arrival in Mississippi, Mayer was placed in a quality control
position that required her to lift packages. She informed her supervisor of her restrictions and her difficulty
in performing the quality control position. She was offered three alternative positions, all of which had a
fifty-pound minimum lifting requirement. Alleging that she had no alternative, she chose a repack position,
but she soon began having trouble with the lifting requirements. She complained to her supervisor, who
told her that he would assist her with lifting the packages that were too heavy for her, but he was not
always present to assist. She then requested an accommodation of a transfer to a different position. At that
time, she was told by a company vice president that she needed "to be careful and stop complaining." She
was moved to a data entry position, remained in this position for approximately six weeks and then sought
another transfer because the data entry position required her to input data into a computer that was
positioned at shoulder level, an awkward position for her arms. At the time she informed her supervisor of
her problems in this position, he stated that "the doctor didn't say anything about something being wrong
with [your] legs." On August 15, 2005, Mayer transferred to a customer service position and remained in
that position until her termination for "disruptive behavior" in March of 2006. At the time of her
termination, Mayer had only received a low score and some comments on her annual evaluation, and had
never been counseled or "written up" for disruptive behavior. She sued, alleging failure to accommodate,
hostile environment, discrimination and retaliation under the ADA.

Issues and Decision: The court first dismissed Mayer's reasonable accommodation and hostile
environment claims based on her failure to exhaust administrative remedies. Turning to Mayer's other
claims, the court held that the two statements made by supervisors—"be careful and stop complaining" and
"the doctor didn't say anything about something being wrong with [your] legs"—both constituted
circumstantial evidence of discrimination. The court also found that she proved that she was treated less
favorably than another employee who had been "written up a few times" before she was terminated, while
Mayer only received a low score and comments on her annual evaluation—she never received a written
warning nor was she formally counseled. Although Future Electronics argued that it had a legitimate,
nondiscriminatory reason for Mayer's termination—disruptive behavior—the court found that Mayer
showed pretext by offering as evidence the two statements by company officials and additional evidence
that shortly before her termination, the company vice president who told her to "stop complaining" had
conference calls with human resources officials discussing the accommodations provided to Mayer and
"how they treated [her] better than they should have." Mayer also argued that none of her supervisors
could provide any examples of her "disruptive behavior," and that it was not until she received her written
performance review, 27 days before her termination, that she was told that she needed to get along with her
co-workers and control her frustration. She also alleged that at that time, she was told that this was not a
disciplinary action, but merely a "needed to work on" portion of the review. Based on the evidence Mayer

                                                    29
presented, the court held that she raised an issue of material fact as to whether her termination was a pretext
for discrimination.

IX. EXTENSION OF LEAVE AS A REASONABLE ACCOMMODATION UNDER THE ADA

    A. Leave of Absence of a Definite Duration May Be a Reasonable Accommodation

In its Interpretative Guidelines, the EEOC has taken the position that reasonable "accommodations could
include permitting the use of accrued paid leave or providing additional unpaid leave for necessary
treatment." 29 C.F.R. § 1634.2(o), App. (2002). A number of courts have agreed with this conclusion,
holding that extending a leave of absence for a definite period may be a reasonable accommodation. See,
e.g., Basith v. Cook County, 241 F.3d 919, 932 (7th Cir. 2001).

An employer need not make a reasonable accommodation that would cause an undue hardship. See 42
U.S.C.A. § 12112(b)(5)(A) (West 1996); Den Hartog v. Wasatch Academy, 129 F.3d 1076, 1087 (10th Cir.
1997). "Determining whether a proposed accommodation (medical leave in this case) is reasonable,
including whether it imposes an undue hardship on the employer, requires a fact specific, individualized
inquiry." Nunes v. Wal Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999). The factors to be
considered in determining whether an accommodation would cause an employer an undue hardship are,
among others, (1) the nature and cost of the accommodation; (2) the number of persons employed by the
company; (3) the financial resources of the company; and (4) the impact of the accommodation upon the
operation of the company. In the context of a leave of absence, "it is not the absence itself but rather the
excessive frequency of an employee's absences in relation to that employee's job" that determines whether
the requested leave would pose an undue hardship. Haschmann v. Time Warner Entm't Co., L.P., 151 F.3d
591, 602 (7th Cir. 1998).

A leave of absence of limited duration will generally not pose an undue hardship on an employer.
Accordingly, the Seventh Circuit has held that an employee's request for a medical leave of absence for up
to four weeks would have been a reasonable accommodation. See Haschmann, 151 F.3d at 601. In
Haschmann, the Vice President of Finance for Time Warner's Green Bay division sought a leave of absence
to recover from medical treatment for lupus, an autoimmune system disorder that affects the central
nervous system. The court held that the four week leave would not constitute an undue hardship in light of
Haschmann's supervisor's comments that she would have an opportunity to prove herself once she regained
her health. Moreover, the fact that the job remained unfilled for nearly four months, until Haschmann
obtained a doctor's release to return to work, indicated that the position could have remained open during
Haschmann's medical leave without the employer suffering an undue hardship.

Likewise, in Rascon v. US West Comms., Inc., 143 F.3d 1324, 1335. (10th Cir. 1998), the employee
obtained three consecutive 30 day departmental leaves of absence before being denied a fourth leave.
Despite this denial of departmental leave, US West could have provided personal leave or sickness and
accident disability leave under its existing policies. During the three months of Rascon's leave, his duties
were performed by other employees. This continued for several months even after Rascon was terminated.
Because these facts demonstrated that US West could have provided Rascon another leave extension, the
court held that such additional leave would not cause the company an undue hardship.

The availability of a disability leave of absence under the company's existing policies also played a critical
role in Criado v. IBM Corp., 145 F.3d 437, 444 (1st Cir. 1998). In Criado, the court noted that IBM
allowed disabled employees to take a 52-week paid disability leave of absence. Accordingly, the court held
that providing a leave of absence to an employee in order to permit his treating physician to develop a
treatment plan would not impose an undue hardship on the company.

                                                    30
Finally, the ability of the employer to replace the employee was an important factor in Garcia Ayala v.
Lederle Parenterals, Inc., 212 F.3d 638, 647-48 (1st Cir. 2000). In Garcia Ayala, the employee sought a
five-month extension to a leave of absence from her position as a secretary in order to undergo treatment
for breast cancer. During her short term disability leave, which she had exhausted during the previous
fourteen months, the company filled the employee's position with secretaries hired from temporary
agencies. Concluding that the company could continue relying on temporary labor for five months, the
court held that a leave extension would be a reasonable accommodation.

    B. Prolonged Leave of Absence May Be an Undue Hardship

Although the extension of a leave of absence may generally be a reasonable accommodation, an
excessively long leave may pose an undue hardship on the employer. This is especially true where the
employer has already provided a substantial leave and the employee demonstrates no clear prospects for
recovery. See Walsh v. United Parcel Serv., 201 F.3d 718, 727 (6th Cir. 2000). Accordingly, the Walsh
court held that the employee's request for a ninety-day leave extension to plaintiff's year long leave of
absence did not constitute a reasonable accommodation. Other courts have also held that prolonged leave
extensions do not constitute a reasonable accommodation. See Taylor v. Pepsi Cola Co., 196 F.3d 1106,
1110 (10th Cir. 1999) (ten month extension of a leave of absence that had already lasted one year was not a
reasonable accommodation); Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1225 26 (11th Cir. 1997)
(employer had no obligation to extend paid leave for two additional months after permitting the employee
to remain on paid leave for ten months without any showing that the employee would return to work at the
end of that period); see also Micari v. Trans World Airlines, 43 F. Supp. 2d 275, 281 82 (E.D.N.Y.)
(observing that, where medical leaves have stretched beyond one year, courts have found that an employee
cannot perform the essential functions of the job as a matter of law), aff'd mem., 205 F.3d 1323 (2d Cir.
1999).

Various factors will determine whether a leave of absence will constitute a reasonable accommodation or
pose an undue hardship. These factors include:

             a.   The size and resources of the employer;

             b.   The expected duration of the employee's impairment and proposed leave of absence in relation to
                  the employee's duties;

             c.   The number of employees performing the same job duties as the employee with a disability;

             d.   Whether the employer's existing policies permit the employee to take the requested leave;

             e.   Whether other employees could perform the worker with a disability’s duties during the duration
                  of the leave;

             f.   Whether the employer could reasonably replace the employee with temporary employees;

             g.   The speed of his termination; and

             h.   Whether the employee has previously been on a leave of absence and, if so, the duration of the
                  leave.

These issues should be reviewed before determining whether a continuation of an employee's leave of
absence would be a reasonable accommodation.


                                                      31
    C. Indefinite Leave of Absence

         1.   An Indefinite Leave of Absence Is Not a Reasonable Accommodation

"[T]here are limits to how far an employer must go in granting medical leave." Waggoner v. Olin Corp.,
169 F.3d 481, 484 (7th Cir. 1999). "The ADA does not require an employer to accommodate an employee
who suffers a prolonged illness by allowing him an indefinite leave of absence." Nowak v. St. Rita High
Sch., 142 F.3d 999, 1004 (7th Cir. 1998).

         2.   An Employee Requests an Indefinite Leave by Failing to Specify the Duration of the Impairment

"[R]easonable accommodation does not require the [employer] to wait indefinitely for [the employee's]
medical conditions to be corrected." Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995). Where the
employee fails to specify the expected duration of his impairment, his request is for an indefinite leave that
would not be a reasonable accommodation. See Waggoner v. Olin Corp., 169 F.3d 481, 485 (7th Cir.
1999); Hudson v. MCI Telecomm. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996).

Informing an employer that he will return to work as soon as he is able does not state a definite duration of
the impairment and therefore is a request for an indefinite leave of absence. See Walsh v. United Conveyor
Corp., No. 01-C-2279, 2002 U.S. Dist. LEXIS 4387, at *22 n. 13 (N.D. Ill. March 15, 2002) (unpublished).
Likewise, vague statements in a physician's report that the employee's injury is not permanent do not
provide the employer with the duration of the expected leave. See Hudson, 87 F.3d at 1169.

As an evidentiary matter, moreover, it is not enough for an employee to notify his employer that he intends
to return to work only after he has been terminated. A "self serving post-termination claim is insufficient to
raise a material issue of fact as to [an employee's] ability to come to work on a regular basis prior to [the
employer's] decision to terminate him." Nowak v. St. Rita High Sch., 142 F.3d 999, 1004 (7th Cir. 1998).

    D. Recent Court Decisions on Extension of Leave

         1.   Employee Who Indicated that She Could "Possibly" Be Back to Work by January 2007,
              Without Specifying a Definite Return Date Was Asking for "Open-Ended" Leave

Case: Cortez v. Raytheon Co., No. 3:08-CV-0801-K, 2009 U.S. Dist. LEXIS 91112 (N.D. Tex. Oct. 1,
2009).

Facts: Ann Cortez began working for Raytheon in 1998 and at the time of her termination in November
2006, she was a senior information systems technologist. In November 2005, she began an approved
medical leave due to complications from pregnancy. She gave birth the following month and began
suffering from postpartum depression and additional physical ailments. Cortez failed to return to work in
February 2006 as planned, and instead requested seven extensions of her leave, all of which were granted.
She was diagnosed with depression in mid-2006 and maintained that she was unable to work all of that
year. During her medical leave, Cortez received short and long-term disability benefits from MetLife
pursuant to Raytheon's policies. MetLife eventually determined from the medical documentation Cortez
provided that her medical condition did not warrant an extension of benefits beyond September 10, 2006.
In accordance with this conclusion, MetLife discontinued her disability benefits and notified Raytheon.
Reviewing all of the documentation from MetLife, Raytheon's Senior Employee Benefits Administrator,
Hulda Wood, determined that nothing in the file supported Cortez's continued absence from work. In
November 2006, Raytheon's HR manager, Stacey Chapman, had a telephone conversation with Cortez
during which Cortez indicated that her doctor had not authorized her to return to work and that she would
provide whatever documentation Chapman needed to extend her leave. Alternatively, Cortez proposed
                                                    32
either that she be allowed to work from home or to take an educational leave of absence to pursue her
masters' degree.

By letter of November 16, 2006, Chapman advised Cortez that because MetLife had stopped paying her
disability benefits and she had exhausted her FMLA leave, she must return to work by November 27, 2006.
The letter further advised that if she did not return to work, she would be considered to have abandoned her
job. Cortez responded by e-mail that her doctor would not release her to return to work on November 27,
but that he would continue monitoring her condition and that it was "extremely probable" that she would be
able to return to work in January 2007. Although Cortez contended that she was unable to work at least
through the end of 2006, she provided Raytheon with no medical documentation supporting a need for
additional leave and did not return to work on November 27. By letter dated November 28, Chapman
terminated her employment. Cortez sued, alleging, among other things, a failure to accommodate by
denying her additional medical leave.

Issues and Decision: In examining Cortez's failure to accommodate claim, the court first observed that she
failed to establish the first prong of her prima facie case—that she was a qualified individual—because she
was unable to report to work, which was an essential function of her job. The court then proceeded to note
that the record showed that Raytheon worked with Cortez for approximately nine months by repeatedly
extending her medical leave. When Cortez then asked for an additional extension, to telecommute, or
educational leave, all of which meant that she would still not be reporting for work, Raytheon denied
further accommodation and terminated her. Raytheon, the court held, was within its rights when it did so,
based on the fact that the best Cortez could offer in the way of returning to work was "speculation that she
could possibly be back in January 2007," a response that gave no definite return date and which was in
effect a request for an "open-ended" leave. Based on her failure to establish a prima facie case and on
precedent holding that an indefinite leave is not a reasonable accommodation, the court dismissed Cortez's
failure to accommodate claim.

         2.   Employer Is Not Required to Accommodate Employee by Granting an Indefinite Leave of
              Absence

Case: Peyton v. Fred's Stores, 561 F.3d 900 (8th Cir. 2009).

Facts: On January 6, 2005, three days after she began employment as the manager of Fred's Stores'
("Fred's") Heber Springs, Arkansas Store, Floyce Peyton experienced pain in her abdomen that resulted in a
diagnosis of ovarian cancer. She told the assistant manager at the store that she would be hospitalized, and
her fiancé delivered a note to the store signed by her physician stating that she "needs to be off work at least
1/9/06. Return date unknown." Peyton underwent surgery on January 12 and between the 12th and the 14th,
the area manager for Fred's called her and asked "[h]ow can we accommodat[e] you?" Peyton responded
that did not know how long she would be out. She later stated that she did not recall the conversation
because she was under the influence of pain medication. The area manager consulted with the regional
vice president about the need to have a manager at the store, and a decision was made to replace Peyton.
On January 14, Peyton was advised that she had been terminated. Peyton underwent six months of
chemotherapy, but was given a limited release for work by her doctor in March. Peyton sued, alleging a
failure to accommodate under the ADA. The district court granted summary judgment in favor of Fred's
and Peyton appealed.

Issues and Decision: On appeal, Fred's argued that at the time of her termination, Peyton was unable to
work at all and thus she was not "otherwise qualified." The district court noted that at the time of Peyton's
termination, Fred's had no information as to when, if ever, she would be able to return to work. Peyton
argued, however, that Fred's failed to engage her in the interactive process of discussing an accommodation

                                                     33
that would enable her to continue her employment, an argument that the court rejected. Peyton admitted
that although she was given a limited release in March, she was unable to perform her duties during the
entire six months that she was receiving chemotherapy and that at the time of her termination, she did not
know when, if ever, she would return to work. In light of this admission, the court concluded that she was
requesting an indefinite leave of absence, which "is not a reasonable accommodation under the ADA."
Affirming summary judgment in favor of Fred's, the court stated that "employers should not be burdened
with guess-work regarding an employee's return to work after an illness."

         3.   Employee's Request for Intermittent Leave Was Not Equivalent to a Request for Indefinite
              Leave

Case: Clinkscales v. Children's Hospital, No. 06-3919, 2009 U.S. Dist. LEXIS 38939 (E.D. Pa. May 7,
2009).

Facts: Karen Clinkscales, an African-American female, left her employment at Emory University, turned
down another pending offer of employment, and went to work as an Intellectual Property Specialist for
Children's Hospital of Philadelphia. According to Clinkscales, shortly after she began work in September
2003, it became apparent to her that her job responsibilities had changed significantly since they were
communicated to her during her interview. She repeatedly clashed with Kurt Schwinghammer, a Hospital
Director and she made multiple complaints of race discrimination to the Hospital's human resources
department, all of which, she alleged, were ignored. In the summer of 2004, at the urging of Human
resources, Schwinghammer agreed to meet with Clinkscales to attempt to resolve their differences.
According to Clinkscales, however, during the meeting Schwinghammer remained hostile to her, asserted
that she performed poorly during her probation period and gave her specific instructions how to handle a
specific project. When he later complained that Clinkscales had not completed the project, she alleged that
she was working in a hostile environment that prevented her from performing her duties.

Clinkscales went out on medical leave on the advice of her doctor to recover from "a stress-induced
physical disability and related ailments." Although her actual "disability" was never identified, she
returned to work for just one week before she went out on medical leave again. At that time, she requested
intermittent medical leave, which meant that she "would be able to take leave as the need would arise."
While on leave Clinkscales also filed a charge of discrimination with the EEOC and the Pennsylvania state
human rights agency. While she was out on leave, she received a letter from the Hospital notifying her that
she would be placed on layoff status if she did not return to work in December 2004. She replied in
writing, stating that she was not ready to return to work, but looked forward to doing so when she was able.
Clinkscales argued that this letter was a request for accommodation under the ADA. When in January
2005 she received yet another letter from the Hospital informing her that if it were able to fill her position,
she would be terminated, her medical condition worsened and she became unable to return to work.
Clinkscales filed suit, alleging race discrimination and a host of other claims, including a failure to
accommodate claim under the ADA.

      Issues and Decision: In reviewing Clinkscales' ADA claim, the court examined the allegation that
Clinkscales requested intermittent leave, meaning that she would take leave for "a day or a few days" if the
need arose. The Hospital argued, among other things, that Clinkscales' request for intermittent leave was
for an indefinite time period and therefore was not a viable request for accommodation under the ADA.
The court rejected this assertion, noting that although a request to stay off work indefinitely is not a
reasonable accommodation, Clinkscales informed the Hospital in her December 2004 letter that "she
looked forward to returning when she was medically able to do so." In light of this assertion, the court held
that it could not consider her leave request to be "so open-ended as to constitute a request for indefinite


                                                    34
leave" and that it could not find that a request, at most, for several days of leave was per se unreasonable
under the ADA.

X. HARASSMENT/HOSTILE WORK ENVIRONMENT

    A. Selected Court Decisions

         1.   "Evil Smirk," Combined with Other Allegedly Discriminatory Actions, Does Not Create
              Disability-Based Hostile Work Environment

Case: Ragsdale v. Holder, No. 07-1256 (RBW), 2009 U.S. Dist. LEXIS 101505 (D.D.C. Nov. 2, 2009).

Facts: Sandra Ragsdale, an employee of the FBI since 1973, suffers from multiple major medical
conditions: asthma, Lupus, hiatal hernia, gastroesophageal reflux disease, arthritis, bilateral patellar
chrondromalacia, irritable bowel syndrome, multiple chronic allergies and fibromyalgia. Added to the mix
is a substantial disability resulting from injuries to both knees sustained in a work-related accident in 1986.
Because of her medical condition, Ragsdale was often unable to walk or had limited mobility and was
required to take considerable time off work. As a long-term federal employee, Ragsdale accrued annual
leave combined with sick leave at the rate of 12 hours per pay period. Under the FBI's policy, leave does
not accrue during the pay period, but rather is considered earned and available for use at the end of the pay
period. In certain cases, and purely at the discretion of the manager involved, advance leave may be
granted. However, the policy stresses the fact that an employee does not have any "entitlement to advance
annual leave." During May and June of 2005, Ragsdale requested sick leave for two days that fell during
pay periods where she had a zero balance of leave accrued. Both requests were denied and she was
required to take leave without pay. Based on the denial of advance sick leave, Ragsdale filed an EEOC
charge and then filed suit, alleging that she was subject to a hostile work environment based on her
disability.

Issues and Decision: In response to the FBI's motion for summary judgment, Ragsdale argued that the
following actions created a hostile work environment: "repeated" denials of sick leave and being placed on
leave without pay, a "false" accusation against her by one of her supervisors that occurred in 1997, an
alleged threat of termination by another of her supervisors based on her poor attendance, and an "evil
smirk" she received from another supervisor. The court first noted that in order to prevail on a claim of
hostile work environment, a plaintiff must show that the employer "subjected h[er] to discriminatory
intimidation, ridicule, [or] insult that is sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment." Further, the court advised, the standard
for judging hostility is "sufficiently demanding" so as to "filter out complaints attacking the ordinary
tribulations of the workplace." Turning to Ragsdale's claim, the court held that the conduct alleged by
Ragsdale was not sufficiently severe or pervasive to support a hostile work environment claim. Rather, the
court held, Ragsdale "presented accusations which amount at best to several isolated, 'sporadic' incidents of
office tension with little or no relationship to each other." The court also rejected Ragsdale's contention
that the emotional distress she allegedly suffered because of her supervisors' actions was relevant to a
finding of hostile environment. While such evidence can be relevant, the court advised, the effects of the
allegedly discriminatory actions "are merely one factor to take into account" when determining whether the
environment is objectively hostile or abusive. Based on this reasoning, the court granted the FBI's motion
for summary judgment on Ragsdale's hostile environment claim.




                                                    35
         2.   Effects of Contentious Employment Relationship Do Not Necessarily Create a Hostile Work
              Environment

Case: Trevino v. UPS, No. 3:08-CV-0889-B, 2009 U.S. Dist. LEXIS 98738 (N.D. Tex. Oct. 23, 2009).

Facts: Sharon Trevino began working for UPS in 1984 as a car washer and worked her way up to the
position of "feeder driver" by the time the events on which she based her lawsuit occurred. As a feeder
driver, Trevino drove tractor-trailer rigs between UPS hubs, UPS facilities and customers. Although
Trevino has been diagnosed with depression, panic disorder, anxiety and post-traumatic stress disorder, the
work-related incident she alleged caused her conditions was disputed by UPS, both as to her account of the
incident and her conclusion that the incident caused her medical conditions. Nonetheless, Trevino asserted
in her lawsuit that her medical conditions render her sporadically unable to work, limit her ability to sleep
and to care for herself, and affect her memory. Beginning in 2005, Trevino's employment relationship with
UPS became more contentious, and she was twice terminated, once for "gross insubordination," and the
second time for violation of Department of Transportation regulations prohibiting a driver from operating a
commercial vehicle while impaired. She grieved her termination both times under the UPS-Teamsters
contract and was reinstated. However, it was the events surrounding the second termination that was the
main focus of her ADA hostile environment claim. On July 22, 2008, Trevino was intercepted while she
drove her rig from Big Cabin, Oklahoma back to the hub in Mesquite, based on a co-worker's report that
when he saw Trevino in Big Cabin, she was "noticeably distressed, disoriented, and gasping for air." When
the co-worker approached Trevino, she asked him not to call her managers because she was afraid they
would take her out of service. The co-worker was concerned enough to disregard her request and as a
result, three Mesquite managers left the hub to intercept Trevino. She was removed from service based on
UPS's safety concerns, taken to the hospital and given a fitness-for-duty exam, and was given a
breathalyzer test. Trevino asserted in her lawsuit that she was not ill, but was just "having a little trouble
breathing" and that UPS's actions were unjustified and discriminatory. Following the incident, UPS
managers again decided to terminate Trevino based on her violation of DOT's rules prohibiting a driver
from operating a commercial vehicle while impaired, either through fatigue, illness or any other cause.
Trevino grieved her termination and was reinstated, with the termination being reduced to a warning.
Before allowing her to return to driving, however, UPS required her to receive a medical release from its
designated health care provider, Concentra. For approximately a month while Trevino awaited a release
from Concentra, she was assigned to training classes and to work in the warehouse for ten hours per day
handling bags of packages. She eventually returned to work as a feeder driver. However, she filed suit
against UPS and one of her managers, alleging, among other things, disability-based hostile environment
under the ADA.

Issues and Decision: With regard to her hostile environment claim, Trevino pointed to two co-worker
comments, the "forced" fitness-for-duty examination and surrounding events, and actions by management
relating to her return to work. The two comments in question—whether she had "taken her medicine" and
why she hadn't taken FMLA leave when she takes it "all the time," without any allegation that similar
comments occurred with regularity, the court held, were not sufficiently severe and pervasive to "rise to
constitute actionable harassment." Trevino further argued that the fitness-for-duty examination, which she
characterized as "physically humiliating," and the circumstances surrounding her removal from the road
were sufficient to constitute a hostile environment. The court disagreed, finding that while the examination
was "surely unwelcome," there was no evidence that it was "conducted unprofessionally, was accompanied
by degrading or abusive behavior, or that it was not conducted in accordance with the hospital's usual
procedures." Likewise the court rejected her arguments concerning the return-to-work requirements of a
medical release, additional training and work in the warehouse, holding that while these requirements
"could have been completed more efficiently or communicated more clearly, Trevino has not produced
evidence that they were sufficiently severe to support a claim of harassment." Citing precedent for the
                                                    36
proposition that even where return to work conditions are unreasonable, "it is unclear that an unreasonable
return-to-work condition could raise a genuine material fact issue concerning 'harassment.'" Aside from
the difficulties that necessarily attend a fitness-for-duty examination and later return-to-work conditions,
the court held, Trevino presented no evidence that UPS took any action to embarrass or humiliate her, or to
cause any additional harm. Based on these findings, the court granted summary judgment in favor of UPS
on Trevino's hostile environment claim.

        3.   Criticism That Focused on Work Performance Rather Than Employee's Disability Did Not
             Create a Hostile Work Environment

Case: Austin v. Wal-Mart Stores, No. CIV. 07-1306-HA, 2008 U.S. Dist. LEXIS 93522 (D. Ore. Nov.
17, 2008))

Facts: Heidi Austin suffers from cerebral palsy and is wheelchair-bound. In August 2006, she was hired
as a part-time fitting room associate at the Wal-Mart store in Clackamas, Oregon. When she was hired,
Wal-Mart was aware of her disability, and Austin warned management that she "might not be as fast as
everyone else" and might require help or an accommodation. While she was employed, Austin was
admonished several times by Camille Mast, a merchandising supervisor. Mast's criticisms included telling
Austin that she wasn't doing her job correctly, having clothes thrown back at her because they weren't done
exactly the way Mast wanted, not being quick enough, not doing things exactly the way Mast wanted them
done—like "buttoning a button a certain way, or tying something a certain way, or folding something a
certain way." According to Austin, Mast accused her of leaving items on a bench and of hanging up
clothes the wrong way. When Austin took issue with the way Mast wanted her to do things, Mast called
her "insubordinate." On one occasion, Mast allegedly accused Austin of not being able to read. Austin
also contends that Mast "broadcast to others" that Austin had lice," although Austin admitted that she did
have head lice on two separate occasions. Mast allegedly told another employee that she thought Austin
couldn't read because some clothes were hung on numbered racks improperly. When Austin's wheelchair
ran over a hanger and became stuck on one occasion, Mast told this same employee "how stupid Ms.
Austin sounded when she was calling for help." Austin made numerous complaints about Mast's abrasive
manner to other supervisors, including Assistant Manager Deborah Solis.

During her employment, Austin was reprimanded on several occasions for a variety of reasons. She
received a "meets expectations" on her ninety-day performance evaluation, but the evaluation also noted
several significant deficiencies. After disciplinary warnings were issued between January and June 2007,
thus taking her through the four warning steps of the disciplinary process, Austin was terminated for
keeping her fitting room and herself unkempt, after company executives visited the store and reported
concerns about Austin's fitting room appearance. Austin sued under the Oregon disability statute, alleging,
among other things, a hostile environment under the ADA.

Issues and Decision: Austin asserted that she was subjected to a hostile work environment because of her
disability. More specifically, she claimed that she was harassed by Camille Mast. The court first pointed
out that the harassing conduct must be sufficiently severe or pervasive to alter the conditions of
employment. Wal-Mart argued that Austin could not meet the "severe or pervasive" element of her claim
for several reasons. First, there were no slurs, epithets or statements of ridicule. Second, Austin did not
have daily contact with Mast—Austin testified that the contact was sporadic—sometimes she didn't see
Mast for weeks, and at other times, she saw her every day. Finally, Wal-Mart pointed to the fact that Mast
was "unpleasant and abrasive" to a number of subordinates. The court held that while there was ample
evidence that Austin found Mast's conduct to be offensive, Mast's conduct did not rise to the same level of
outrageousness as those cases where the Ninth Circuit has concluded that harassment was severe or


                                                   37
pervasive. Although the court agreed that Mast's behavior was both "rude and unprofessional," it was
insufficient to establish a prima facie case of hostile work environment based on disability.

         4.   Employee May Proceed with Hostile Environment Claim Based on Combination of Incidents

Case: Maggio v. Konica-Minolta Bus. Solutions USA, 578 F. Supp. 2d 969 (N.D. Ill. 2008).

Facts: Samuel Maggio claims that he has had a physical disability since 1969, when he was twice
wounded in Vietnam by shrapnel from mortars. In addition, he suffers from rheumatoid arthritis and
hypertension. Maggio was hired by Minolta in December 1997 as a field technician, and was responsible
for making service calls at customer locations to install, repair and maintain document imaging equipment.
While he was on probation as a result of a customer complaint in 1999, Maggio notified Minolta's vice
president and general counsel that he was limited in his ability to stand, walk and lift, and that he could not
climb stairs with his tools, activities that were essential to his position as a field technician. Partly as an
accommodation, Minolta offered Maggio a full-time position as an in-house shop technician, which he
accepted. In the in-house position, Maggio handled service repairs in-house at a single location. Minolta
also accommodated him by assigning him to work on smaller equipment, which allowed him to work while
sitting. He was also provided with an assigned parking space and provided with work carts.

Maggio complained that during his employment, he was subjected to various forms of abuse, including co-
workers calling him names for his use of a handicapped parking space. Supervisors allegedly "cracked"
and "blew up" at him about his disability. In addition, one co-worker called him a "fat ass" and he received
abusive notes saying such things as "F___ you, Sam." One supervisor allegedly vandalized Maggio's car
by placing screws in his tires and his co-workers would steal his work carts, which were part of Minolta's
accommodation of his disability. Additionally, Maggio claimed that he was denied computer training that
would have enhanced his career opportunities, and he was denied the opportunity to use the company's
computers for training since he could not climb the stairs to the second floor.

In late summer of 2003, as a result of the Konica and Minolta merger, Maggio was terminated in a
reduction-in-force, allegedly based on his ranking as the lowest rated and least senior shop technician.
Claiming that he was terminated based on his disability, Maggio sued, alleging, among other things, a
hostile work environment. Konica-Minolta filed a motion for summary judgment, which the court granted
in part and denied in part.

Issues and Decision: The court denied Konica-Minolta's summary judgment motion on Maggio's hostile
environment claim. The court first noted that Maggio did not offer specifics about how frequent, or severe,
or humiliating many of the incidents were or whether they interfered with his work. Much of his claim,
however, was based on "improper, but isolated incidents of yelling, insults, and vandalism." These
incidents, the court held, standing alone, would not permit a reasonable jury to find an abusive
environment. However, the court held, these incidents combined with conduct that did detract from
Maggio's work performance or that hindered his advancement—stealing shop carts and refusing to provide
computer training—in its totality, could lead a jury to conclude that the work environment was sufficiently
hostile to meet both the objective and subjective hostility requirements.

XI. REDUCTIONS IN FORCE AND THE ADA

    A. Employee With Disability Is Not Entitled to Preferential Treatment During a Reduction in Force

Case: Wong v. Pape Machinery, No. S-08-0042 FCD DAD, 2009 U.S. Dist. LEXIS 29252 (E.D. Cal.
Apr. 7, 2009).

                                                    38
Facts: Pape Machinery sells, leases and services construction equipment. Cara Wong began working for
Pape in its Sacramento location in February 2005 as a Service Administrator, an administrative support
position. She suffered a back injury around November 2005 and took numerous medical leaves for
treatment and recovery throughout 2006 and 2007. On June 11, 2007, Wong again took a leave of absence,
and with the exception of one half-day she worked in June, never returned to work prior to the elimination
of her position in a RIF in November 2007. The RIF itself was based on a substantial decrease in revenue,
resulting in terminations of 20 of the 54 employees in the Sacramento location. None of those who were
terminated were replaced. Despite the fact that Wong was medically unable to work at the time her
position was eliminated, and the fact that she was never replaced and her job duties were distributed among
several other employees, she filed suit against Pape under state law, alleging disability discrimination and a
failure to accommodate.

Issues and Decision: The court found that while it was difficult to separate Wong's reasonable
accommodation claim from her other claims, it appeared that she was asserting that (1) she should have
remained employed and on leave after her position was eliminated, and (2) she should have been
transferred to another position once she was able to work. Noting that Pape had presented evidence that
Wong was terminated for a legitimate, nondiscriminatory reason, the court rejected her arguments, first
advising that she was unable to cite to any authority for the proposition that an employer is required to
accommodate an employee after she is terminated for a legitimate reason. Likewise, the court found that
she produced no authority to support a theory that "disabled employees are entitled to greater job protection
when there is an overall reduction in force." To accept her arguments, the court opined, would "give
disabled employees preferred, rather than equal, status in the workplace." Finding that Pape was under no
duty to accommodate Wong either leading up to or following her legitimate, nondiscriminatory
termination, the court granted summary judgment in favor of Pape on her reasonable accommodation
claim.

    B. Cancer Survivor Cannot Show That Her Inclusion in RIF Was Based on Disability or Employer's
         Perception of Disability

Case: Myers v. AT&T, No. A-3987-06T1, 2009 N.J. Super. Unpub. LEXIS 301 (N.J. Sup. Ct. Jan. 28.
2009).

Facts: Lois Myers, a long-term employee of AT&T, was diagnosed with cancer and took disability leave
from February 1998 to November 1998. When her cancer was in full remission, she resumed her
employment in her previous position. She specifically stated that she experienced no discrimination and
that she felt healthy. During the summer of 1999, there was a reorganization, and Myers, along with two
other employees, became B-band managers in the High Value Clients Organization (HVCO), which was a
newly started group in the Morristown office. Myers noted that throughout 1999 and 2000, she felt healthy
and worked as hard after the cancer as she had before. In 1999 and 2000, AT&T engaged in "forced
distributions" of ratings and rankings of employees, meaning that only 25% of employees could be rated in
the highest categories. Although Myers gave herself the highest ratings on her 1999 self-appraisal, her
supervisor, Dana Joachim, was permitted, because of the forced distributions mandate, to give the highest
possible rating to only one of the three B-band managers. Pursuant to company policy permitting her to
change an employee's self-appraisal, Joachim gave the highest rating to Greg Kirby, and the second highest
rating to Myers and the other B-band manager. In her previous performance review in 1997, Myers also
did not achieve the highest ratings. In January 2000, a layoff was announced and when it was over, only
17,000 of the 22,000 employees in Myers' unit remained. The entire HVCO was disbanded and all three B-
band managers began looking for new jobs in the company. Kirby was selected for an open position in
another unit, a decision that was based on the 1999 performance appraisal ratings. Although the other B-
band manager found a position at AT&T Wireless, Myers was terminated when she failed to secure a new
                                                    39
position. She sued under New Jersey state law, alleging that she was terminated based on her disability.
The case went to trial, and when the jury found in favor of AT&T, Myers appealed.

Issues and Decision: At trial, in support of her claims of discrimination, Myers pointed to Joachim's
deposition testimony where she expressed that although she was unaware of how many hours Myers
worked, she believed that Kirby worked harder and worked longer hours than Myers and that her
perception was that Myers would have worked harder "if she hadn't had the illness." Based on
conversations she had with Myers regarding the relationship between stress and the recurrence of cancer,
Joachim felt that Myers may not have been working as hard as she could because she was concerned about
her cancer returning. These statements, the court observed, formed the foundation of Myers' discrimination
claim. However, the court rejected Myers' reliance on these statements as evidence of discrimination and
affirmed the jury's verdict in favor of AT&T. The court found that the evidence showed that Joachim
lowered Myers' rating—and thus eventually deprived her of the position that Kirby secured based on that
rating—because she could only give the highest rating to one B-band manager and Kirby worked longer
and harder than Myers. The reason that Joachim surmised was causing Myers not to work harder, the court
stated, was irrelevant. The fact remained that Myers' rating was lowered because of her actual work
performance, not because she had a disability or was regarded as such. The court further noted that not
only could a fear of recurrence of cancer be the reason Myers was not working harder, but "it could have
been any other reason as well." Additionally the court found noteworthy the fact that Myers' failed to attain
the highest ratings on her previous performance evaluation.

    C. Employee Provided Overwhelming Evidence That RIF Termination Was Based on His Disability

Case: Eckhardt v. Bank of America, No. 3:06CV512, 2008 U.S. Dist. LEXIS 96745 (W.D.N.C. Nov. 26,
2008))

Facts: In October 1996, Gerard Eckhardt, a quadriplegic, accepted a Systems Engineer position with Bank
of America ("BOA") where he performed mainframe computer programming. In 1998, Eckhardt was
transferred to a new team designing an application called Operational Credit Exposure ("OCE"), a risk-
monitoring application for corporate bank commercial customers, which alerts business partners if the
customers' financial positions with the bank become problematic. Eckhardt, an "expert" on OCE, was one
of it creators and primary developers and was "instrumental" in its creation and continued operation
through various new versions. In addition, he maintained relationships with OCE business partners,
enabling him to communicate the business partners' requirements to the team. Eckhardt consistently
performed his work in a manner that met BOA's reasonable expectations, he was valuable both to the team
and the success of OCE, and he was never subject to any disciplinary action. Further, BOA maintained a
"talent chart" or "depth chart" ranking the strength and value of its employees. In 2004, Eckhardt was the
highest rated individual on the team and in the top 10-20% of the team's larger technology group.

In February 2004, Eckhardt was removed from his team manager position to a consultant application
programmer position ("CAP") by his manager, Jon Dowell. According to Dowell, this move was not due to
any performance problems, but rather his belief that the team would be better served strategically with
Eckhardt out in front of the application, doing high-level design and gathering business requirements.
Eckhardt ceased being a team lead, and therefore a manager, after that point. In March 2004, BOA hired
Lisa Terranova as a CAP. Terranova also reported to Dowell. In the Summer of 2004, Terranova was
promoted to the position of the team's application manager, which generated resentment on the team.
Following Terranova's promotion and several other personnel changes, the morale and behavior of the team
deteriorated into chaos.



                                                   40
On January 1, 2005, Michelle Krause was promoted to team manager. At the time of her promotion,
Krause had no previous management experience with the BOA, no formal computer education, and she had
been a psychology major in college. In April or May 2005, Daniel Globerson, whose primary function
with BOA appeared to be cost reduction—asked Mary Ellen Statland to assume responsibility for the Risk
Group, including OCE. Globerson told Statland that the mandate was to try to optimize the staffing levels,
looking for overlap in areas where responsibilities could be absorbed by others without having large
impacts on deliveries. Statland's task was also to consider "the risk and the reward" of eliminating
positions, including ensuring that there was no "business impact" caused by the layoff. By this time, the
team was "dysfunctional" and plagued by "a lot of conflict," "a lot of arguing against each other" and
"childish crap all the time," which was "scary" for Krause as a new manager. Jeff Sparks was a fellow
CAP with Eckhardt, and his work abilities were the equivalent of Eckhardt's. Like Eckhardt, there was no
evidence of any misconduct or disciplinary action against Sparks. Sparks and Eckhardt were the only two
employees terminated as a result of the reduction in force, and BOA rehired Sparks within weeks. With the
rehire of Sparks, Eckhardt became the only employee who lost his employment with BOA in that
department under the reduction in force. He sued, alleging disability discrimination, and BOA filed a
motion to dismiss his claims.

Issues and Decision: To establish a case of disability discrimination in a reduction in force case a claimant
must show that: (1) he was an individual with a disability; (2) he was selected from a larger group of
candidates; (3) he was performing at a level substantially equivalent to the lowest level of that in the group
retained; and (4) the selection process produced a residual work force that contained some unprotected
persons who were performing at a level lower than that at which the plaintiff was performing. The court
denied BOA's motion, based on overwhelming direct and indirect evidence that several members of the
team were less qualified than Eckhardt, that he was in fact the most qualified and valued employee in his
department based on BOA's own value depth chart, and that his disability played a part in the decision to
terminate him. Not only did he show that he was outperforming others, Eckhardt also produced evidence
that he did so without incurring disciplinary warnings, unlike a number of unprotected employees who
remained after the RIF.

Walter Terry was the least skilled member of the team, the result of which his job duties were transferred to
other employees, including Eckhardt. Terry also showed up to work drunk and drank during his lunch
periods. Another team member, Robin Siegner, was "volatile", "confrontational" and "had a hard time
taking assignments from others." She "hated everybody" on the team and openly wished that many of them
would "go to hell" and was otherwise prone to "crazy ranting." Siegner's language was so foul that the
judge abbreviated the quotes attributed to her because he found the curse words she used to be
"unacceptable in polite society or in any professional context." Siegner caused such problems that she was
eventually moved off the team. Team member Yolanda Gammon had problems with a "non-team spirit"
and "refusal to do her job" according to an action plan Krause created when she took over the team. She
refused to work with Eckhardt and other teammates, was disrespectful and unprofessional toward her
teammates and was "disruptive." Gammon also had technical deficiencies in her work that caused her to be
pulled off one project, and she struggled to understand and translate business requirements described by her
business partners. Gammon physically assaulted Terranova in her cubical as Terranova was trying to
address a personality conflict issue with her. Still, Krause refused to fire her, even though Terranova
recommended her termination. Finally, Eckhardt presented evidence that Terranova, who replaced him as
team manager, was struggling in her role as a first time manager and harbored resentment for Eckhardt
based on his disability.

Terranova, in written memoranda, made several references to Eckhardt's disability, opining that he
"occasionally deviates [from having the rest of the world's best interests in mind] . . . due to his handicap, to

                                                     41
bring the rest of the world, to a screeching halt, by bringing other's [sic] to his level of sadness and deep
seated sorry [sic] by turning us against each other." Manager Krause tried to secure involuntary short term
disability leave for Eckhardt, viewing him as "a little burned out" and under "emotional distress." One
report produced as evidence reflected several disability related comments purportedly made by Krause.

Although Globerson made the final decision regarding Eckhardt's layoff, and there was no evidence he
even knew of Eckhardt's impairment when he authorized and approved his layoff, the court noted that he
neither pressed the managers to substantiate the decision, nor did he conduct any additional investigation.
In other words, he left the decision making process to subordinates Statland and Krause. Additionally, the
evidence showed that Statland and Krause were not constrained in any way in the factors they could
consider in making their layoff recommendations.

Statland did not make her layoff recommendation to Globerson until early to mid-June 2005. Krause made
her layoff recommendations via telephone to Statland, in early June 2005. After Statland received Krause's
recommendation, she completed her own investigation before making her recommendation to Globerson in
a staff meeting. The recommendation that was made was that the Eckhardt be terminated from his
employment with the bank. On June 29, 2005, Eckhardt and Sparks were informed of their terminations in
separate meetings with Statland and Krause. Specifically, Statland told Eckhardt that his position was
eliminated as part of the Bank's cost reduction and that his work could be sent offshore at one-third of the
cost that the bank paid him. When he requested an explanation, he was told by Statland that "We feel that
the 4.0 release took a physical toll on you and you've also had some recent health issues and this will allow
you to find a less demanding position, such as a business analyst position." The evidence further showed
that the business partners opposed the layoffs of Eckhardt and Sparks. One business partner testified that
she was "disappointed beyond belief," believed the layoff was "nuts," and conveyed her grave reservations
about the potential negative impact to her superiors. The evidence showed also that Statland did not
accurately testify concerning proactive contacts by business partners concerning the layoffs and that she
misled business partners about why and how the layoff occurred. Terranova also opposed Eckhardt's layoff
and indicated to him that she was "fighting for [him]." Given the overwhelming evidence that other, less
qualified employees were retained, that the stories told by the managers who made the selection were
replete with conflicting statements and positions, that there were several references to Eckhardt's disability
that made it clear that it was considered in the selection process, and the evidence that several key members
of the staff were in favor of retaining him, the court permitted Eckhardt's disability claims to proceed to
trial.

XII. MEDICAL EXAMINATIONS AND INQUIRIES

    A. EEOC Advises that Employer's Health Risk Assessment May Violate ADA

Resource: EEOC Advisory Letter on ADA: Health Risk Assessments (EEOC Aug. 10, 2009).

In this advisory letter, the EEOC notes that the requestor asked whether the ADA permits an employer to
require its employees to complete a health risk assessment in order to receive monies from an employer-
funded health reimbursement arrangement. A copy of the health risk health risk assessment provided to the
EEOC asks employees to answer more than one hundred questions in several categories: "Family Health
History"; "Self Care"; "Personal Health"; "Women's Health"; "Older Adult Health"; "Health Choices-
Nutrition"; "Health Choices-Physical Activity"; "Health Choices-Alcohol and Tobacco"; "Health Choices-
Safety"; and "Health Changes." Noting that Title I of the ADA strictly limits when an employer may
obtain medical information from applicants and employees, the letter advises that although the Commission
has not taken a formal position on the question, "requiring employees to complete a health risk assessment
that includes many disability-related inquiries—such as questions about how often they feel depressed;
                                                    42
whether they ever have been told that they have certain conditions . . . how many different prescription
medications they currently take; or how much alcohol they drink—as a prerequisite to obtaining
reimbursement for health expenses does not appear to be job-related and consistent with business
necessity." The submitted assessment, the EEOC advised, does not appear to be requesting medical
information for the purposes permitted by the ADA. Finally, the EEOC observed, "even if the health risk
assessment could be considered part of a wellness program, it is not voluntary because it penalizes any
employee who does not complete the questionnaire by making him or her ineligible to receive
reimbursement for health expenses." Based on this reasoning, the EEOC advised that the ADA prohibits
disability-related inquiries or requiring a medical examination under the circumstances the requestor has
described.

As almost an afterthought, however, the EEOC advised that because many questions on the submitted
health risk assessment are not disability-related—i.e., whether an employee sees a personal doctor for
routine care or has a health care directive; questions about "Health Choices," such as how many servings of
vegetables or fruit an employee eats, whether he takes a vitamin supplement, or eats breakfast, or how
much an employee exercises—they "are not likely to elicit information about a disability and, therefore, are
not subject to the ADA's restrictions." Additionally, the EEOC, in a footnote, reminds the requestor that as
of November 21, 2009, the Genetic Information Nondiscrimination Act prohibits an employer from
obtaining any genetic information on employees or employees' family members. Therefore, it will
generally be unlawful for an employer to ask applicants or employees about family medical history.

    B. Employer's Return to Work Physical Capacity Evaluation Is a Medical Examination under the ADA

Case: Indergard v. Georgia-Pacific Corp., No. 08-35278, 2009 U.S. App. LEXIS 21312 (9th Cir. Sept. 28,
2009).

Facts: Kris Indergard began working for Georgia-Pacific Corp.'s ("GP") Wauna mill facility in 1984. On
December 9, 2003, she took medical leave to undergo surgery for work and non-work-related injuries to
her knees. She remained on medical leave until March 21, 2005, when she was released to return to work
with permanent restrictions. GP's policy required employees returning to work from medical leave to
participate in a physical capacity evaluation (PCE) prior to returning to work and Indergard was notified of
this requirement. GP contracted an independent occupational therapist, Cory Blickenstaff, to conduct a job
analysis on Indergard's former job as well as the next position she was entitled to bid on under the
collective bargaining agreement. Blickenstaff interviewed employees who worked in these positions and
identified the physical demands of the positions, including amount of weight employees were required to
push, pull and hold, and the types of movements the positions required. Because of the substantial lifting
requirements imposed by the duties of these positions, Blickenstaff determined that Indergard's permanent
restrictions prevented her from participating in the PCE. Indergard met with GP supervisors and
challenged the lifting requirements, alleging that they were inaccurate based on how the jobs were actually
performed. However, the job analyses were not revised.

In October 2005, Indergard provided GP with a note from her doctor removing the permanent restrictions
and she was then scheduled to participate in the PCE. During the PCE, Vicki Starnes, a state licensed
occupational therapist, took notes on Indergard's medical history, current pain level, use of medication,
alcohol, tobacco, and assistive devices; recorded her weight, height, blood pressure, and resting pulse;
observed her gait, balance, and posture; and measured the range of motion in Indergard's arms and legs, and
compared the results to normal limits. In addition to a substantial amount of testing of Indergard's limbs,
and her ability to push, pull and lift, she required Indergard to perform a "Job Simulation Task" that, among
other things, required her to lift and pour five gallon buckets filled with forty-five pounds of sand. Starnes
additionally recorded details about Indergard's vision, communication, cognitive ability, hearing, attitude,
                                                    43
and behavior. The second day of the PCE included similar tests. Among other things, she measured and
recorded Indergard's heart rate after the treadmill test, and noted that she required "increased oxygen" and
demonstrated "poor aerobic fitness." Starnes concluded that Indergard was unable to perform either the
sixty-five pound lift and carry of her original position, or the seventy-five pound lift required by the
alternative position. Starnes recommended that Indergard not return to work, and forwarded the results of
the PCE to Dr. Ketzler, Indergard's personal physician, who agreed with Starnes' assessment. The lifting
requirements that the PCE indicated Indergard could not meet were those that she had previously contested
as inaccurate. GP then informed Indergard that she could not return to work in either of the identified
positions and that because no other positions were available for which she was qualified, she would be
terminated on February 8, 2006. Indergard filed suit, alleging a multitude of disability discrimination
claims under the ADA and state law. During the summary judgment proceedings, she abandoned all of her
claims except those alleging that the PCE was an improper medical examination and that GP discriminated
against her because of her disability or regarded her as having a disability. The district court granted
summary judgment in favor of GP, and Indergard appealed.

Issues and Decision: On appeal, the court addressed only Indergard's claim that the PCE was a medical
examination that violated the ADA. Relying on the EEOC's interpretive appendix to the regulations and its
Enforcement Guidance on Disability-Related Inquiries and Medical Examinations, the court held that
several factors established that the PCE was a medical examination. The most compelling factor for the
court was Starnes' measurement of Indergard's heart rate and breathing after the treadmill test, as well as
Starnes' notation of her increased oxygen intake and that she demonstrated "poor aerobic fitness."
Measuring Indergard's heart rate and recording these observations, the court found, "was not only
unnecessary to determine whether she could perform the task, but is also the kind of examination that the
EEOC Enforcement Guidance identifies as inappropriate to include in a non-medical physical agility or
fitness test." Of the seven factors listed in the Enforcement Guidance to be considered in determining
whether a test is a medical examination, the court found that at least four of the factors weighed in
Indergard's favor. Those factors are (1) whether the test is administered by a health care professional;
(2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an
impairment of physical or mental health; (4) whether the test is invasive; (5) whether the test measures an
employee's performance of a task or measures his/her physiological responses to performing the task;
(6) whether the test normally is given in a medical setting; and (7) whether medical equipment is used.
With regard to the first and second factors, although Starnes was not a medical doctor, she was a licensed
occupational therapist, and could therefore qualify as a "health care professional." Starnes not only
administered the test, but also interpreted Indergard's performance and concluded that she should not return
to work at GP. Once she made this conclusion, she consulted with another health care professional,
Indergard's personal physician, who concurred with her opinion. With regard to the third factor, although
the PCE was aimed at determining whether Indergard should be returned to work, the court observed that
the "broad reach of the test was capable of revealing impairments of [Indergard's] physical and mental
health, particularly in light of Starnes['] recording Indergard's subjective reports of her current pain level,
use of medication and assistive devices, and communication, cognitive ability, attitude, and behavior."
While the court held that it would express no opinion on the sixth factor and the fourth factor weighed in
GP's favor, it also held that the fifth factor benefited Indergard based on Starnes' recording of her heart rate
and breathing in connection with the treadmill test and her written comments regarding the measurements,
which the court found to be "measurements of Indergard's physiological response to her performance of a
task." This action by Starnes, the court concluded, went "beyond collecting information necessary to
determine whether Indergard was physically capable of performing the task." With regard to the seventh
factor, the court observed that it was unclear whether this factor favored either party, because the only
medical equipment apparently used during the PCE was the blood pressure cuff. Based on these
conclusions, the court reversed summary judgment in favor of GP and remanded to the district court for

                                                     44
consideration whether the PCE, as a medical examination, was job-related and consistent with business
necessity.

    C. Drug Testing Program that Included Testing for Legally Prescribed Drugs May Violate ADA

Case: Bates v. Dura Automotive Sys., No. 1:08-0029, 2009 U.S. Dist. LEXIS 34764 (M.D. Tenn. Apr. 23,
2009).

Facts: In early 2007, management at Dura Automotive Systems' Lawrenceberg, Tennessee manufacturing
plant became concerned about its significantly higher incidence of accidents and injuries than at
comparable plants. In conjunction with "widespread rumors of drug use at the facility," positive post-
accident drug tests, and its belief that there was a connection between drug use, legal and illegal, and the
high number of accidents, Dura management decided to implement a more stringent drug testing policy at
the facility. Prior to the implementation of the new policy in May 2007, the policy had been that
employees could not use legal prescription drugs if the use adversely affected safety, company property or
job performance. In May of 2007, with the assistance of a drug testing organization known as Freedom
from Self ("FFS"), Dura conducted facility-wide testing of its more than 450 employees, including testing
for substances found in legal, prescribed medications. Employees who failed the initial test had the test
result changed from "positive" to "negative" if they provided the medical review officer with a valid
medical explanation, with documentation (i.e., a prescription), for the positive test result. However, in
addition, if an employee failed the initial panel test, then he would be required to meet with FFS and
provide a list of all of his prescribed medications. After meeting with the employee, FFS would send Dura
a list of the employee's prescribed medications and the warnings associated with each one of them. Dura's
human resources manager, in consultation with other senior facility managers, listed as prohibited any
prescribed medications that had warnings about the operation of equipment or machinery or impaired
mental alertness. Any employee whose medications came with such warnings was placed on a 30-day
leave of absence, during which time the employee would be required to transition to other "less risky"
drugs or to stop using the drugs altogether. The policy was "utterly inflexible," and Dura would not accept
a letter from an employee's physician to the effect that the use of the drug in question was safe. Velma Sue
Bates and six other employees (the "Bates plaintiffs") who were affected by the new policy sued, arguing
that the initial panel testing constituted an impermissible medical examination under the ADA.

Issues and Decision: Dura moved to dismiss the Bates plaintiffs' claims, arguing: (1) that the policy did
not "screen out or tend to screen out" individuals with disabilities, which is prohibited under the statute; and
(2) the new testing policy was job related and consistent with business necessity because it was created for
safety reasons. The court rejected both of Dura's arguments, finding first that under the established
proposition that "any program that screens out individuals who, by nature of their prescription drug use,
have certain chemicals in their system that are designed to treat serious physical and mental problems,"
Dura's test clearly "tend[ed] to screen out" individuals with disabilities. Further, the court held that, while
there was some merit to Dura's argument that the policy was "narrowly tailored" in that it only banned
certain drugs that carried an explicit safety warning, there must be "some realistic connection between the
medical screening and the work performed," so that the screening is "consistent with business necessity."
While the policy was based on the "sound goal" of workplace safety, the court held, a reasonable jury could
find that the policy was broader and more intrusive than necessary to achieve its goal. Based on this
reasoning, the court denied Dura's motion to dismiss, permitting the Bates plaintiffs to take their claims to
trial.




                                                     45
    D. Hospital Was Justified in Requiring Physician to Undergo Medical Examination Where Nurse
         Practitioner Alleged He Was Stalking Her

Case: Rivera v. Smith, No. 07 Civ. 3246 (BSJ)(AJP), 2009 U.S. Dist. LEXIS 3523 (S.D.N.Y. Jan. 20,
2009).

Facts: Dr. Roberto Rivera began his employment as an attending physician at Saint Vincent's Catholic
Medical Center's Department of Community Medicine in October of 1991. During his employment at the
Medical Center, he developed a "deep friendship" with Frances Dirks, a Family Nurse Practitioner who was
also employed by the Medical Center in the same department. Dirks ended her relationship with Rivera
and demanded that he cease all contact with her. Despite her instructions, Rivera continued to attempt to
communicate with her. Dirks' attempts to avoid Rivera included requesting a transfer to a different floor.
On May 23, 2006, Dirks lodged a harassment and stalking complaint against Rivera with the Department
Chairman, and a formal written complaint with the Medical Center's human resources department. In her
complaints, Dirks alleged that despite her instructions to cease all communications with her, Rivera
continued to leave personal cards on her desk, told her he would send her Christmas cards for the rest of her
life, emailed her at home, stating that "I'm still here. I haven't disappeared nor have my warm regards
toward you . . . I think that in the end our final conversation three years ago summarized why I have not
forgotten you, gotten over you, nor do I so desire," followed her home on a bicycle, left his wife and moved
to an apartment one block from Dirks' residence, followed her to work, involved himself in Dirks' practice,
and generally made Dirks feel that she was being threatened and stalked. The Medical Center transferred
Dirks to another worksite in May 2006, and ordered Rivera not to speak to her or to have anything further
to do with her. Rivera was suspended from his duties pending an investigation.

As a result of an investigation, Dr. Ruth Smith, the Medical Center's Director of Personnel Health Services
determined that Rivera should undergo a psychiatric evaluation by the New York State Medical Society's
Committee for Physician's Health ("CPH") to determine his fitness for duty. Rivera refused to submit to a
CPH evaluation because he had had a prior negative experience with CPH regarding his history of drug
addiction. When the Medical Center continued to insist that Rivera submit to the CPH evaluation, he
continued to refuse and offered instead to have a private evaluation performed. When he continued to
refuse, the Medical Center terminated him on July 6, 2006. In the termination letter, the Medical Center
stated that "[a]lthough you noted in your June 15, 2006, letter to Dr. Smith that you had offered to have a
private evaluation, you indicated in your June 29, 2006 letter to Ms. Dirks, which you sent despite having
been asked to cease communications with her, that not only would you not go to CPH, but you also would
not get therapy if recommended. Given your refusal to cooperate in efforts designed to ensure your fitness
for duty, St. Vincent's has no choice but to terminate your employment." Rivera sued, alleging violations
of the ADA.

Issues and Decision: Rivera alleged that the Medical Center violated the ADA by (1) requiring him to
undergo a psychiatric evaluation performed by CPH before being permitted to return to work, a violation of
the medical examinations and inquiries provision of the ADA, and (2) by terminating his employment
because of a perceived mental illness, thus violating the ADA's prohibition against discharging a qualified
individual based upon a physical or mental impairment. First observing that the ADA prohibits only those
medical exams and inquiries that are not job-related and consistent with business necessity, the court held
that it was clear that the Medical Center's request that Rivera submit to a psychiatric exam with CPH before
being allowed to return to work was business-related and consistent with business necessity. Further, the
court held, the evidence clearly demonstrated that the Medical Center requested the examination in order to
ensure workplace safety—to ensure that Rivera did not pose a threat to the safety of patients or other
employees before he was permitted to return to work. The Medical Center only requested that Rivera
undergo a psychiatric evaluation after Dirks filed her complaints. The court specifically pointed to Dirks'
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allegations of stalking and her statements that she "felt threatened" and that she "didn't feel safe." As a
result of these allegations, the court observed, the Medical Center concluded it was possible that Rivera
posed a danger to others, and in order to ensure the safety of its employees, required that Rivera submit to
an evaluation by CPH—the organization it determined to be the appropriate oversight body—before being
allowed to return to work. From this evidence, the court held that the Medical Center's request for a
"fitness for duty" examination of Rivera was for an appropriate business necessity—ensuring a safe
working environment for all of its employees.

The court also found Rivera's second allegation—that the Medical Center terminated him because of a
perceived mental illness—to be without merit. Rivera's ADA claim on this issue failed because he
provided no credible evidence that the Medical Center's reasons for firing him were a pretext for
discrimination. The Medical Center articulated two legitimate, nondiscriminatory reasons for his
termination: (1) his refusal to cooperate in efforts designed to ensure his fitness for duty; and (2) his failure
to follow the Medical Center's orders to cease communications with Frances Dirks. Based on these
findings, the court granted summary judgment in favor of the Medical Center and dismissed Rivera's
claims.

XIII. DISCRIMINATION DUE TO A RELATIONSHIP WITH A PERSON WITH A DISABILITY

    A. No Viable Association Discrimination Claim Where Employee Was Terminated Following Request
         for Time Off to Care for Child With a Disability

Case: Erdman v. Nationwide Ins. Co., No. 07-3796, 2009 U.S. App. LEXIS 20979 (3d Cir. Sept. 23,
2009).

Facts: Brenda Erdman was hired by Nationwide Insurance in 1980 and over the years she held several
full-time positions with the company until 1998, when she requested a part-time schedule to care for a
daughter who was born with Down Syndrome. When Erdman was notified in early 2003 that her part-time
position was being eliminated, she accepted the offer of a full-time position. At this time, according to
Nationwide, she began to turn into a problem employee: she made inappropriate inquiries about
confidential salary information, encouraged others to work slowly to avoid driving up production standards,
made malicious accusations against her supervisor, and committed other acts of insubordination. At the
time Erdman accepted the full-time position, she attempted to clarify whether she would be permitted to
take the entire month of August as vacation to prepare her daughter for school. When she was told that it
was unlikely due to the unusually high number of employees requesting vacation that month, she indicated
that if she could not use vacation time, she would be taking FMLA leave instead. In April 2003, Erdman
began working full-time. She also submitted a request to take FMLA leave from July 7 through August 29,
and was told by human resources that it was not a problem. Erdman was terminated on May 9, 2003,
when, according to Nationwide, her behavioral problems culminated in the use of profanity during a phone
conversation that was monitored for quality control purposes. While Nationwide does not monitor personal
calls, Erdman prefaced a personal call with the statement that "this is a personal call and should not be
reviewed for quality purposes, assholes." Erdman sued, alleging, among other things, that Nationwide
violated the ADA by denying her leave and terminating her because of her association with her disabled
daughter.

Issues and Decision: While the court allowed Erdman's FMLA claims to proceed, it rejected her ADA
association claim and affirmed the lower court's grant of summary judgment. First noting that the
association provision prohibits an employer from discriminating against a qualified individual "because of
the known disability of an individual with whom the qualified individual is known to have a relationship or
association," the court pointed out that the duty to accommodate does not extend to relatives of the

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individual with a disability. In other words, Nationwide had no duty to provide Erdman with time off to
care for her disabled daughter and thus, even if her termination was based on her request for leave, the
ADA afforded her no protection. Therefore, the only claim that Erdman could conceivably pursue under
the association provision was that her termination was motivated by her daughter's disability. The court
observed that other courts have held that an employee would be protected by the association provision "if
she were fired because her employer feared that she might miss work to care for a relative with a disability
even though she had not taken or requested time off," a position that would be based on "unfounded
stereotypes and assumptions" arising out of the employee's relationship with a particular person with a
disability. This was not the case with Erdman, however. Indeed, the court pointed out, Nationwide was
aware of her daughter's disability for many years before her termination and thus would not have suddenly
been motivated to terminate her on that basis.

    B. Discharged Training Specialist for Developmentally Disabled Could Not Establish Association
         Discrimination Claim

Case: Haire v. BIOS Corp., No. 08-CV-336-TCK-FHM, 2009 U.S. Dist. LEXIS 15335 (N.D. Okla. Feb.
26, 2009).

Facts: Mary Haire worked for BIOS Corporation, first as a habilitation training specialist ("HTS") and
then as a program manager, between 2002 and May 2006, when she was terminated. For the first two
years of her employment, Haire served as an HTS in the home of Timothy Sanders, a developmentally
disabled individual who was receiving federal funds as the result of a class action settlement involving
former residents of state home for the mentally retarded. When Haire became a program manager, she
continued to supervise Sanders' care. In May 2006, Haire became concerned that the amount of money
being distributed to Sanders by BIOS was "too low." She also reported to the Oklahoma Department of
Human Services that BIOS's payments to Sanders had been cut even more and that she would like to move
his services from BIOS to ARC Group Homes, a competitor of BIOS that employed Haire's husband. On
May 12, 2006, Haire was terminated, allegedly for insubordination and failing to follow her chain of
command. She sued under the ADA, alleging that BIOS had discriminated against her by terminating her
employment based on her association with Sanders.

Issues and Decision: The court first held that Haire met the first two of the four elements required to
establish a prima facie case of association discrimination. She submitted evidence that she was
(1) qualified for her position, and (2) she was terminated. To establish the third element, the court held,
Haire must establish that BIOS knew, at the time of her termination, of her association with an individual
with a disability. The question for the court was whether Haire and Sanders had a qualifying "relationship
or association" under the statute. The court held that the relationship qualified, noting that although the
parties did not cite and the court could not locate any definition of "associate" or "association" in the
context of the ADA's relevant provision, the legislative history of the statute provides examples that
indicate that the "association" does not have to be either familial or particularly close. Thus, a qualifying
"association" could include the relationship created by Haire's provision of assistance to Sanders, a disabled
individual. The fourth element of the prima facie case—that the adverse employment action occurred
under circumstances raising a reasonable inference that the disability of the relative or associate was a
determining factor in the employer's decision—however, was Haire's downfall. She was unable to provide
any evidence that would even suggest a discriminatory motive. The court, in its analysis, determined that
courts usually look to three general categories of association discrimination cases to determine motive:
"expense" cases (e.g., where an employee is fired because of a spouse's medical costs); "disability by
association" cases (e.g., where an employer fears that the employee will contract AIDS from his partner, or
that an employee has a genetic predisposition to a condition that a relative suffers from); and "distraction"
cases (e.g., where the relationship renders the employee inattentive at work because the relative or associate
                                                    48
has a disability that requires the employee's attention. The court then noted that her actual association with
Sanders was unlikely to increase BIOS's expenses (i.e., she was actually being paid, in part, to serve as
Sanders' advocate), there was no fear by BIOS that Haire would somehow also become disabled because of
the association, and finally, her association with Sanders did not distract her or render her inattentive at
work—all of the factors that are taken into consideration to establish motive under the association provision
of the ADA. Based on Haire's failure to establish the fourth element of her prima facie case, the court
granted summary judgment for BIOS on her association discrimination claim.

    C. Employee Is Not Entitled to Reasonable Accommodation of Modified Schedule to Care for Disabled
         Husband

Case: Coffman v. QC Financial, No. 8:07CV427, 2008 U.S. Dist. LEXIS 66436 (D. Neb. Aug. 29, 2008).

Facts: Vicki Coffman was hired by QC Financial d/b/a Quik Cash ("QC") in June of 2006, at which time
QC agreed to permit her to work a modified schedule in order to spend evenings at home with her disabled
husband. When a new manager assumed her position at the store where Coffman worked, however, the
new manager indicated that she was going to keep the store open at night and that Coffman would no
longer be entitled to a modified schedule. When Coffman reiterated her need for a modified schedule, the
manager asked if she was "giving [her] 2 week notice." In reply to Coffman's negative response, the
manager then stated that "this is your 2 week notice." Based on these conversations and events, Coffman
filed suit under the ADA, alleging that she was forced out of her job solely because of her need for a
modified schedule to care for her disabled husband.

Issues and Decision: The court first set out the elements of a claim for association discrimination, stating
that a plaintiff must show that (1) she was subjected to an adverse employment action, (2) she was qualified
for the job at that time, (3) she was known by the employer at the time to have a relative or associate with a
disability, and (4) the adverse employment action occurred under circumstances which raised a reasonable
inference that the disability of the relative or associate was a determining factor in the employer's decision.
However, the court went on to note that where an individual cannot meet the attendance requirements of a
job, even because of a relative's or associate's disability, the employee is not qualified and cannot set forth a
prima facie case of discrimination. Citing to precedent holding that the duty to accommodate only applies
to qualified applicants or employees with disabilities, the court summarily rejected and dismissed
Coffman's claims, holding that she had "no legal right to such an accommodation based only on her
husband's disability."

XIV. RETALIATION

    A. Employee Cannot Base ADA Retaliation Claim on Fact that Employer Opposed His Claim for
         Unemployment Benefits

Case: Honeycutt v. FedEx Freight Sys., No. 09-3043, 2009 U.S. Dist. LEXIS 97123 (W.D. Ark. Oct. 16,
2009).

Facts: David Honeycutt, who suffers from complications of diabetes mellitus and other disorders, began
working for FedEx in March 2003. Throughout his employment, Honeycutt alleged that FedEx failed to
promote him, took corrective actions against him, subjected him to a hostile work environment, and
retaliated against him, all because of his disability. According to Honeycutt, between April 2006 and
October 2008, he and a female co-worker were e-mailing each other at work. At an unspecified date, the
female co-worker asked him to stop contacting her. Despite her request, Honeycutt contended that the co-


                                                     49
worker continued to communicate with him, and when he complained to his manager, he was terminated.
He filed a pro se lawsuit against FedEx and Fed Ex filed a motion for summary judgment on his claims.

Issues and Decision: Although the court allowed Honeycutt to proceed on some of his claims, it held that
to the extent he was basing his retaliation claim on the fact that FedEx opposed his claim for
unemployment benefits, the "claim fails as a matter of law." Citing Title VII case law as precedent, the
court stated that the filing of a claim for unemployment benefits is not protected opposition to
discrimination under any statute and is entirely unrelated to the ADA. Therefore, the court granted
summary judgment in favor of FedEx on his retaliation claim.

    B. ADA Retaliation Claim May Proceed Even Though Employee Had Neither Disability Nor Was
         Regarded as Having a Disability

Case: Hutson v. Covidien Inc., No. 8:08CV272, 2009 U.S. Dist. LEXIS 76449 (D. Neb. Aug. 26, 2009).

Facts: When Gene Hutson was hired by Covidien, Inc. as a shipping department material handler/truck
driver in April 2005, he informed the company that he had been injured and had broken his neck while
working for a previous employer. It was Covidien's policy that "[a]ll employees are expected to perform
tasks as assigned by [Covidien's] supervisory/management personnel, regardless of the job title or routine
job duties." In May 2005, when Hutson was assigned a particular task that he felt was outside his physical
limitations, he informed his supervisor. After Hutson met with his supervisor and a human resources
representative, and provided Covidien with a copy of his functional capacity assessment, the task was
removed from his job duties. Another task he could not perform was subsequently removed from his
crew's required tasks, and Hutson's co-workers also assisted him in performing some of his tasks. While
employed at Covidien, Hutson sustained additional injuries—injuring his back twice and breaking his hand.
All of his restrictions in connection with these injuries were accommodated as well. On May 23, 2007,
Hutson was instructed to report to the maintenance department at the beginning of his shift due to a lack of
shipping department work. When he reported to work, he was told by his supervisor, Jennifer Bernhardt,
that his duties would include paper shredding. The conversation that subsequently took place was disputed.
Hutson alleged that he asked Bernhardt if the shredding task violated his work restrictions, and that he told
her that he would rather go home, lose a day's pay and receive a written warning than take a chance on
hurting himself. Bernhardt recalled the conversation differently, testifying that Hutson refused to perform
the paper shredding task because it was beneath him. However, she also testified that he indicated to her
that his neck was bothering him and that the shredding task would "push [him] over the edge." Bernhardt
further testified, however, that she told him that the task was light duty work and "practically begged him to
reconsider his refusal." The parties agreed that after the conversation, Hutson went home and did not work
his assigned shift. Covidien maintained that Hutson never requested an accommodation and never said
anything that could have been construed as a request for accommodation. Hutson was terminated the
following day for insubordination and he subsequently filed suit, alleging disability discrimination and
retaliation.

Issues and Decision: On Covidien's motion for summary judgment on the ADA discrimination claim, the
court held that Hutson failed to provide evidence demonstrating that he either had a disability or that
Covidien regarded him as having a disability. The court further held, however, that Huston was not
required to show that he had a disability in order to proceed with his retaliation claim. Indeed, the court
cited precedent for the proposition that "the ADA protects one who engages in [protected] activity without
regard to whether the complainant is 'disabled.'" Hutson's request for accommodation, the court held, was
protected activity, and Covidien's termination of him was an adverse action. The close temporal proximity
between his "request" for accommodation and his termination, the court held, demonstrated a genuine issue
of material fact whether Covidien's proffered reason for terminating him—insubordination—was a
                                                    50
legitimate reason or was pretextual. Viewing the fact in a light most favorable to Hutson, the court held
that not only had he established a prima facie case of retaliation, but he also presented evidence from which
a reasonable jury could conclude that he was terminated in retaliation for requesting an accommodation
with respect to the paper shredding assignment.

    C. Mere Denial of Accommodation Cannot Support Retaliation Claim

Case: Imbody v. C&R Plating Corp., No. 1:08-CV-0218, 2009 U.S. Dist. LEXIS 4779 (N.D. Ind. Jan. 23,
2009).

Facts: Steve Imbody began working on the barrel line at C&R Plating in March 2006 and sustained a
work-related injury—lumbar and thoracic strains—in mid-June of the same year. He sought treatment
under C&R's workers' compensation policy and received treatment from C&R's physicians. On June 20, he
was released to return to work with restrictions that included "no bending, reaching, squatting, twisting or
climbing; no lifting over 10lbs, no standing or walking; and alternate between sitting and standing as
needed." Imbody alleged in his lawsuit that although he requested accommodation, he was asked to
perform work in violation of his medical restrictions. On June 27, he returned to his physician and received
medical restrictions similar to the original restrictions he was given on June 20. C&R terminated him the
following day. Imbody sued under the ADA, alleging both a failure to accommodate and retaliation.

Issues and Decision: The court granted C&R's motion to dismiss Imbody's retaliation claim, noting that it
was based on the failure to accommodate his impairment by refusing to place him in a position that would
not require him to exceed his various medical restrictions. Thus, the court held, the retaliation claim was
based on the same conduct that supported his disability discrimination claim. The court explained that
although requesting a reasonable accommodation may constitute protected activity, the mere denial of the
requested accommodation claimed to violate the substantive anti-discrimination provisions of the ADA
simply cannot support a retaliation claim. The court cited a case out of the Middle District of
Pennsylvania, which explained the rationale as follows: "'[i]f an employee is not entitled to a reasonable
accommodation under the law, the denial of the requested accommodation simply cannot support a
retaliation claim. If, however, the employee is entitled to the reasonable accommodation refused by the
employer, then a disability discrimination claim has been established, not a retaliation claim.'" Because
Imbody failed to allege any protected activity outside of his request for accommodation, he was unable to
support a retaliation claim as a matter of law.

    D. Former Employee May Proceed with Retaliation Claim Based on Termination of COBRA Benefits

Case: Manthos v. Jefferson Parish, No. Civ. A. 07-1302, 2008 U.S. Dist. LEXIS 63931 (E.D. La. Aug.
21, 2008).

Facts: Peter Manthos, who suffered from a cardiac condition known as atrial fibrillation, began working as
a library associate at the Jefferson Parish Library Department (the "Parish") in June of 2002. In September
2003, Manthos was diagnosed with orthopedic conditions in his back and knees. Manthos alleged that the
Parish informally accommodated his medical conditions. A brief medical leave in March 2006 was
followed, in the next three months, by his placement on involuntary leave, medical restrictions, demands
for accommodations, and requests by the Library for additional medical examinations and information.
Following heart surgery in April 2006, and his failure to attend both a medical appointment the Parish set
up to evaluate his ability to perform his essential job functions and a pre-disciplinary hearing with his
supervisors to discuss his restrictions and his continued employment, he was terminated on June 6. Days
before his termination, he filed a discrimination complaint with the EEOC. Following his termination,
Manthos elected to participate in the COBRA health insurance benefits plan, administered through COBRA

                                                   51
Professionals, Inc. ("CPI"). CPI notified Manthos on June 13 that it had received his enrollment form, and
that payment was required by August 4. On July 11, Manthos was assaulted and sustained a closed head
injury that caused drowsiness and confusion. On August 8, he called CPI to arrange to make a payment for
what he believed was the premium due on September 1. CPI informed him that his benefits had expired for
non-payment of the August 4 premium. CPI also informed him that the Parish had the discretion to accept
a late payment. The following day, Manthos contacted the Parish's Benefits Administrator, who informed
him that the Parish occasionally made exceptions for late payment, but that he would have to furnish a
doctor's corroboration of the circumstances. Manthos obtained a letter from his doctor dated August 14.
However, when he again called the Benefits Administrator, he was informed that federal law and Parish
policy prohibited the reinstatement of COBRA benefits once the payment deadline had passed. Manthos
sued, alleging a variety of ADA claims, including the allegation that his COBRA benefits were terminated
in retaliation for his filing of an EEOC charge.

Issues and Decision: On summary judgment, the Parish made two arguments in response to Manthos's
retaliation claim. First, the Parish argued that there was no causal connection between Manthos' filing of
his EEOC charge and the termination of his COBRA benefits. Alternatively, the Parish argued that it had a
legitimate reason for the cancellation of his benefits—Manthos' failure to pay the August 4 premium. The
court made quick work on both arguments and denied the Parish's summary judgment motion on the
retaliation claim. First, the court rejected the argument that there was no causal connection because the
Parish "has no input and makes no determination relative to COBRA benefits administration including
cancellation, denial, or approval of COBRA insurance coverage." The court pointed out that the Parish
contradicted its own argument by asserting that it had "complied with an internal policy 'enforced by
Jefferson Parish' that governs cancellations of COBRA benefits." Further, the testimony of the Benefits
Administrator suggested that the Parish had the autonomy to make a termination decision based on its own
policies. With regard to the Parish's second argument, that the benefits were legitimately terminated
because of Manthos' failure to make the August 4 payment, Manthos cited precedent for the proposition
that his head injury and subsequent "confused" condition should have tolled the August 4 deadline. The
court held that Manthos had created a genuine issue of material fact as to whether his alleged incapacity
caused his failure to understand the payment deadline. In denying the Parish summary judgment on this
claim, however, the court cautioned that at trial, Manthos "will of course have to prove the degree of his
incapacity and that the Parish was made aware of that incapacity when Manthos ultimately regained the
ability to tender payment."




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