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«Brief No. 22 EMPLOYMENT May 2014 Legal Briefings Prepared by: Barry C. Taylor, Vice President of Systemic Litigation and Civil Rights and Rachel M. ...»

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Included in the ADA’s “qualification standards” is the “requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.”98 Direct threat is defined as “a significant risk of substantial harm to the health or safety of the individual or others than cannot be eliminated or reduced by reasonable accommodation.”99 The EEOC has developed various factors used to consider whether an individual would pose a direct threat, and requires the determination to be an individualized assessment based on reasonable medical judgment relying on the most current medical knowledge and/or the best objective evidence.100 It is clear that plaintiffs have the burden of proving that they are qualified, and defendants have the burden of proving that plaintiffs are a direct threat. However, when the question of whether a plaintiff can perform the essential functions of a position blends into the related question of whether she poses a direct threat, the case law is mixed on which party has the burden of proof.101 This occurs when the essential functions and direct threat analyses are “inextricably intertwined.”102 Some courts have placed the burden on the plaintiff to show that he can perform the essential functions, even where as a practical matter that requires the plaintiff to show that the plaintiff can perform the essential functions in a way that does not endanger others.103 Other courts, however, require defendants to show that the plaintiff cannot perform the essential functions because he poses a direct threat.104 For instance, in Hutton v. Elf Atochem North America, the court reasoned that because the “direct threat” defense is set forth in the ADA’s “Defenses” section, it is an affirmative defenses, on which the employer bears the burden of proof.105 Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act In one recent case involving the interplay between qualified and direct threat, the court chose not to decide which party ultimately has the burden of proof, holding that regardless, neither party could demonstrate the direct threat defense as a matter of law. In Nelson v. City of New York, the issue was whether a police officer with a history of Personality Disorder with Histrionic Features and Post Traumatic Stress Disorder posed a direct threat to herself or others, and by extension, whether she could perform the essential functions of her job.106 The parties agreed that the ability to tolerate the Battleground After the ADA Amendments Act stress of police work was an essential function of the position, but disagreed on Qualified Under the ADA: The New Legal whether plaintiff could meet this requirement. The court, however, found that the plaintiff’s evidence could surpass summary judgment. Presenting conflicting expert testimony, the court relied on the plaintiff’s expert, who was also her personal therapist, given that she had more familiarity with the plaintiff’s mental profile. Plaintiff’s therapist testified that the plaintiff no longer met the full criteria of histrionic personality, no longer had PTSD, and opined that her past symptoms were attributable to a previously undiagnosed thyroid cancer and Hashimoto’s autoimmune disorder. As courts and employers are supposed to do when assessing whether an individual poses a direct threat, the court held that a jury could find that the defendant did not rely on the most current medical knowledge available, given its focus on the plaintiff’s history instead of her current condition.

The Ninth Circuit has held that the defendant has the burden to demonstrate that the plaintiff posed a direct threat, and in Hutton v. Elf Atochem North America, concluded that the defendant met its burden.107 In Hutton, the plaintiff worked as a chlorine finishing operator at a facility that manufactures chlorine and related chemical products. He also had Type 1 diabetes and experienced various diabetic episodes during his employment. In response to his ADA lawsuit, defendant argued that he was not qualified, because he posed a direct threat to himself or others. Specifically, it asserted that during diabetic episodes, the plaintiff could lose consciousness, which was dangerous in light of his job to work with chemical products. The plaintiff disagreed, arguing that the risk of substantial harm was too small, asserting that he only lost consciousness one time while working. The court found that the defendant had met its burden. It explained that even if it was to agree that the severity of the risk was small, it would still be a significant risk under the direct threat analysis given the “catastrophic” consequences. Specifically, if the plaintiff lost consciousness, chlorine could spill from railcars, convert to gas and then cause severe, potentially fatal, harm to other workers and people near the facility. Further, in light of the long hours and rotating shifts required for the position, it was difficult for the plaintiff to control his diabetes and no one could rule out the occurrence of another event that would affect the plaintiff’s ability to remain conscious, alert and communicative. The court further noted that the plaintiff sometimes worked his shifts alone.

There is another line of cases evaluating the interplay between “qualified” and “direct threat,” which deal with employees who threaten workplace violence. Courts have Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act distinguished between employees that pose a direct threat, and employees who are terminated because they “make[] threat[s].” In Mayo v. PCC Structurals, Inc., a welder told several co-workers that he was going to bring a gun to work and shoot several supervisors.108 When confronted by the police about these threats, the plaintiff reiterated his intention and could not rule out following through on the threats. He was ultimately hospitalized and was treated for major depressive disorder. His psychologists determined that such threats were expressions of ruminating negative

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Instead of engaging in a direct threat analysis, the court considered whether the employee was “qualified” and found that he was not. The court held that making violent threats disqualify an employee, even if the threats were related to the employee’s disability. In Mayo, because the employee stated the threat multiple times to multiple people, and also named specific supervisors and the time, place and manner of the threatened attack, the court found that no reasonable jury could find the plaintiff to be qualified. See Sista v. CDC IXIS N. Am., Inc., 445 F.3d 161, 170–71 (2nd Cir. 2006) (explaining that the direct threat defense applies when an employee poses a threat, not when an employee actually makes a threat); Bodenstab v. Cnty. of Cook, 569 F.3d 651, 658–59 (7th Cir. 2009) (holding that the direct threat defense is not at issue because employer legitimately fired employee for the threats he had already made);

But see Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir. 2007) (holding that “conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination”).

Interplay Between “Qualified” and Statements on Applications for Disability Benefits A legal brief about the term “qualified” would not be complete without a discussion of the interplay between being qualified under the ADA and seeking benefits under disability insurance programs, such as Social Security Disability Insurance (SSDI).

The benchmark case on this issue is Cleveland v. Policy Management Systems Corporation, a Supreme Court case from 1999.109 In Cleveland, the Supreme Court considered whether pursuit and receipt of SSDI automatically estopped a recipient from pursuing an ADA claim, and concluded that it did not. Despite the “appearance of conflict” between the SSDI program and the ADA, the Court held that these two claims do not inherently conflict, and “there are too many situations in which an SSDI claim and an ADA claim can comfortably exist side by side.”110 The Court explained reasons why a recipient of SSDI could still be qualified under the Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act

ADA, including:

1. The Social Security Administration (SSA) does not take into account the possibility of reasonable accommodations in determining SSDI eligibility.

2. An individual might qualify for SSDI under SSA’s administrative rules for specific impairments, but still be able to perform essential functions.

3. The SSA grants SSDI benefits to individuals who can work and are working through the trial-work period.

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Despite these explanations, and despite declining to apply any special legal presumptions for recipients of SSDI in ADA cases, plaintiffs who make statements in SSDI applications about their inability to work must reconcile the inconsistent statements. In other words, a plaintiff must explain how she is “unable to work” for SSDI purposes, but “qualified” under the ADA.

Cleveland’s Application to Disability Benefits Other Than SSDI The Supreme Court’s decision in Cleveland has been interpreted to apply to recipient of disability benefits other than SSDI. In recent years, Cleveland has been found applicable to applications under the Nevada Public Employees’ Retirement Systems (PERS),111 the Federal Employee Retirement System benefits,112 and State-police pension benefits.113 In deciding to extend Cleveland’s holding outside of SSDI cases, courts have explained that the “reasoning and language of Cleveland supports a broader application,”114 noting that the “principles are pretty much the same.”115 The first question, according to Cleveland, is whether the claims for benefits “inherently conflict” with an ADA claim. If not, but the plaintiff makes statements that appear to conflict with one another, then the plaintiff must explain the inconsistency.

Explaining Inconsistency: Passage of Time As noted by the Cleveland decision, one way ADA litigants can explain the apparent inconsistency between their SSDI application and ADA lawsuit is to point to the passage of time between their statements. In Ryan v. Pace Suburban Bus Division of Regional Transit Authority, Ryan experienced an on-the-job injury.116 After providing him with temporary assignments to light-duty positions, and various medical leaves, the employer ultimately terminated Ryan’s employment in February 2009. After a prolonged period of unemployment, in December 2011, Ryan applied for SSDI, stating that he could not hold any full-time or part-time employment due to his disability, could not perform any auto repair and rebuilding, could only stay awake for one to two hours at a time, and could only lift up to four or five pounds. In February 2012, the SSA granted the plaintiff’s SSDI benefits, and determined that Ryan was completely disabled as of October 31, 2008, months before his official termination.

Brief No. 22 May 2014 Qualified Under the ADA: The New Legal Battleground After the ADA Amendments Act The employer argued that because Ryan stated that his injury occurred on October 31, 2011 on his SSDI application, before he was terminated, he was not qualified under the ADA. The court disagreed. Despite Ryan’s apparent inconsistent statements, he successfully reconciled such statements by highlighting the three-year lapse of time between his discharge and the statements on his SSDI application. Further, Ryan’s responses on his SSDI application were made in the present tense, suggesting that his statements assessed his ability to work at the time he completed the application

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Compare this to a case where the court found that the employee’s attempt to reconcile his apparently conflicting statements failed. In Butler v. Village of Round Lake Police Department, the defendant argued that the statements made in the police officer’s application for disability pension prevented him from establishing that he was qualified under the ADA.117 In support of his pension application, the police officer stated that his pulmonary condition made it impossible to do the required duties, such as chasing a suspect or wrestling with an unruly one. He also provided certificates of disability from three physicians, who noted that he was “permanently disabled from police service” with certain limited restrictions.118 In an attempt to save his ADA claim, the police officer argued that the statements made at his pension hearing referred to his thencurrent abilities as opposed to the earlier time frame. Rejecting this argument, the court found that the police officer failed to provide any evidence that he could have performed the essential functions of police work during those earlier time frames, especially in light of the fact that by the time that he stopped reporting to work, he could “barely walk a few blocks or climb stairs.”119This case reminds litigants that they must be able to prove the underlying facts to explain the apparently inconsistent statements.



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