Marshall Law

By Marshall H. Tanick

‘New’ ADA not employee-friendly in Eighth Circuit, yet

“The universe is not hostile, nor is it
friendly, it is simply indifferent.”

John Holmes, The Sensible Man’s View of Religion (1933)

The major revision to the Americans with Disabilities Act (ADA), 42 U.S.C. §12101-12213 enacted in September 2008, and effective January, 2009, was widely heralded as making the anti-disability discrimination measure more user-friendly for employees. See Perspectives, “Eighteenth birthday of ADA brings old views and new changes,” in the November 3, 2008, edition of Minnesota Lawyer.

But the few cases that have trickled through the legal system since the make-over have yet to bear out that prophecy. A quartet of recent decisions of the Eighth Circuit Court of Appeals this summer, including two from Minnesota, reflects that the new measure, like the old, still poses substantial hurdles for employees to overcome in asserting disability-related issues in the workplace.

The four cases shared some similarities. In each, the employee raised claims under other laws as well as the ADA. But in all of them, they failed to provide sufficient medical documentation to support their assertions.

Minnesota Matters

Claims under the ADA and Minnesota Human Rights Act along with an assertion of retaliation failed for visually challenged employee of a Canadian-based railroad in Kirkeberg v. Canadian Pacific Railway, 2010 WL 3363243 (8th Cir. Aug. 27, 2010). The position was outsourced, at a savings of about $70,000, after the employee developed monocle vision, a hepatitis condition. U.S. District Court Judge David Doty dismissed the lawsuit and the Eighth Circuit affirmed.

The ADA and parallel state disability claims were not actionable because the claimant’s condition did not “substantially limit” any “major life activities,” as required to trigger statutory protection. The employee’s sight problems were not, according to the medical documents he submitted, “of an extended or permanent duration,” a necessary element for a disability claim. Because he acclimated to the affliction “fairly normally” and had no significant impairments, his visual condition was not statutorily protected.

The “same conclusion” was raised with regard to hepatitis. The claimant offered “no evidence that he was substantially limited by this impairment.” Nor was there evidence that he was “regarded as disabled” to invoke the perception-of-disability claim.

In another case from Minnesota, the Eighth Circuit upheld dismissal of a disability discrimination claim filed by an employee who quit and after failing to provide the required medical certification for a leave of absence in Kobus v. The College of St. Scholastica, Inc., 608 F.3d 1034 (8th Cir. June 21, 2010). A painter at a parochial college in Duluth sought a leave of absence under the Family Medical & Leave Act (FMLA), 29 U.S.C. §2601.254. The college required medical certification, but the employee stated that he did not “have a doctor.” Following some discussion about the possibility of a non-FMLA leave, the employee quit and later sued for violations of the FMLA, ADA, and Human Rights Act.

The claims were rejected by U.S. District Court Judge John Tunheim, and the Appellate Court affirmed. The disability and FMLA measures require that the employee “inform the employer” of a requested accommodation. The painter failed to do so because he never revealed his diagnosis and had no apparent limitations at work. Moreover, guidelines promulgated under the ADA allow an employer to “ask for reasonable documentation concerning the employee’s disabilities and functional limitations,” which was not complied with by the employee before he quit.

The painter’s failure to submit an application form for a leave of absence negated his FMLA claim as well. Regulations accompanying the FMLA and the college’s own internal documents contained “unequivocal directives” calling for such documentation, and there was no “ambiguity” warranting the employee’s resignation without supplying the required certification.

Dispatcher Discharge

An employee’s failure to pass a fitness-for-duty exam constituted grounds for termination in Wisbey v. City of Lincoln, Neb., 2010 612 F3d. 667 (8th Cir. July 6, 2010). Unlike the Duluth painter in Kobus, the employee, an emergency dispatcher for a municipality, furnished medical certification for a leave of absence. But her condition prompted the employer to request a “fitness for duty” examination, which concluded that her condition of depression and insomnia impaired her from performing the “essential functions” of her job.

The city then fired her, prompting a lawsuit for violations of the ADA and FMLA. The Trial Court dismissed the lawsuit on summary judgment, and the Eighth Circuit affirmed.

The fitness exam did not violate the ADA because the employee’s job required that she “focus and concentrate at all times.” The test, therefore, was a “business necessity,” which is permissible under the statute. Because she failed the fitness exam, the employer could terminate her for inability to perform the “essential functions” of the job, consistent with the ADA.

The employee’s FMLA claim also failed. Her request for intermittent leave for six months or longer was not viable because the statute does not provide a right to “unscheduled and unpredictable leave.” There also was no evidence of retaliation by the employer in firing her.

FMLA Failures

The FMLA also failed to protect another Minnesota employee this summer in Estrada v. Cypress Semiconductor, 2010 WL 3220363 (8th Cir. Aug. 17, 2010). A technician at a production line in Bloomington, who was fired for poor attendance, claimed her discharge was in retaliation for taking FMLA leave for a sick day after her surgery. U.S. District Court Judge Paul Magnuson rejected her claim, and so did the Eighth Circuit affirming summary judgment.

The FMLA claim was not viable because the employee accumulated excessive “points” under the company’s attendance policy regardless of the one-day post-surgery leave. The company “actually and habitually enforces [its] policy,” and there was “no evidence” that it would have granted “leniency” to the claimant despite a lenity provision in the policy.

Because the company “would have made the same decision” to discharge her regardless of the single FMLA-protected sick day, her claim was not actionable under the statute.

Yet another FMLA claimant suffered defeat in Brown v. Kansas City Freightliner Sales, Inc., 2010 WL 3258301 (8th Cir. Aug. 19, 2010). An employee sued for wrongful termination under the statute after he was fired following an absence from work. Affirming summary judgment, the Eighth Circuit held that the employee was not deprived of any FMLA right of reinstatement because he did not furnish notice that he wanted FMLA leave or that his absence differed from “ordinary sick days.”

The revisions in the ADA, approved by Congress and signed by President Bush two years ago, were responsive to a series of court rulings, particularly by the U.S. Supreme Court unfavorable to employees. The new law, in fact, specifically directs that it be construed “broadly” for the benefit of employees.

The measure may ultimately be treated more friendly towards employees than its predecessor. But, as these cases reflect, they are still having problems laboring with the law.

Marshall Tanick is a Partner with Mansfield Tanick & Cohen, P.A., practicing in the areas of civil litigation, employment and labor law. A Minnesota State Bar Association Board Certified Civil Trial Specialist, he can be reached at 800-4016-194.