Category Archives: ADA

March 10, 2014

Safety Violation Or Too Much Intermittent FMLA Leave? Tenth Circuit Says Jury Must Decide Wyoming Employee’s FMLA and ADA Case

Did Solvay Chemicals fire long-time employee Steven Smothers because of a first-time safety violation or because the company was tired of his frequent absences due to an ongoing medical disability? The Tenth Circuit Court of Appeals recently ruled that Smothers provided sufficient evidence to suggest that Solvay’s stated reason for his termination was pretextual, allowing his claims for unlawful retaliation under the Family and Medical Leave Act (FMLA) and discrimination under the Americans with Disabilities Act (ADA) to proceed. Smothers v. Solvay Chem., Inc., No. 12-8013 (Jan. 21, 2014). The Court affirmed the grant of summary judgment on his state law claim for breach of an implied employment contract.

Medical Treatments and Severe Pain Lead to Frequent FMLA-Protected Absences

For eighteen years, Smothers worked as a surface maintenance mechanic in Solvay’s trona mine in Sweetwater County, Wyoming. The company considered him to be an excellent mechanic who did great work and got along with everyone. In 1994, Smothers injured his neck and developed degenerative disc disease in his spine. Over the next five years, Smothers had three surgeries to his neck as well as numerous other medical procedures. Despite treatment by a specialist, Smothers continued to have severe ongoing neck pain, severe migraine headaches and lower back problems. At times, Smothers was unable to work without pain treatments and he often was able to sleep only a few hours each night due to the pain.

Smothers asked for and was granted FMLA leave for intermittent absences caused by his condition. Managers and co-workers began to complain about his absenteeism, especially because he worked on the graveyard shift where there were fewer workers to absorb his absences resulting in increased overtime costs. Solvay’s production superintendent Melvin Wallendorf pressured Smothers to change to the day shift, but Smothers refused as the shift change would have cost him about $7,000 a year. Solvay’s human resources department advised Wallendorf that urging Smothers to switch shifts would violate the FMLA so Wallendorf stopped pressuring Smothers but did not stop complaining about his absences.

At one point, Wallendorf and Rick Wehrle, Smothers’ direct supervisor, gave Smothers a poor performance rating on his evaluation due to his absenteeism. In 2005 or 2006, Smothers applied for a promotion but was told that he was rejected because of his absences.

Safety Issue Explodes into Argument

In 2008, the graveyard crew conducted a routine maintenance acid wash to remove build up in its equipment. After a line ruptured, Smothers saw that a damaged “spool piece” had caused the problem and prepared to remove it. Another mechanic, Dan Mahaffey, suggested that Smothers wait for a line break permit, which is a form that certifies that employees have completed a checklist of precautions before a line can be safely disconnected. Smothers said that a permit wasn’t required because the line was already broken. Mahaffey and Smothers then argued. Mahaffey offered help on the repair which Smothers refused. Mahaffey took offense and accused Smothers of hypocrisy since Smothers had previously reported others for safety violations. Smothers made an offensive comment to Mahaffey and told him he did not want his kind of help. Smothers removed the broken piece and began the repair.

Mahaffey immediately reported the argument and Smothers’ removal of the spool piece without a line break permit to the area supervisor. Later that same day, three managers called Smothers in to discuss the safety violation. Although completing the line break permit may not have been absolutely necessary, Smothers later conceded that he should have locked out the pump valve before removing the part according to Solvay’s safety policies. Smothers apologized for not locking the pump valve before removing the piece and promised it wouldn’t happen again. Smothers was sent home pending an investigation.

Six managers were involved in deciding what to do about the argument and the safety violation. Three of the managers personally talked with Mahaffey about the argument but no one spoke to Smothers about it. About eight days later, Solvay fired Smothers. Smothers sued in Wyoming federal court, alleging, among other claims, unlawful FMLA retaliation, ADA discrimination and breach of an implied employment contract based on Solvay’s employee handbook.

FMLA Claim Bolstered By Disparate Treatment and Previous Retaliatory Acts

The trial court granted summary judgment to Solvay on Smothers’ FMLA and ADA claims. On appeal, the Tenth Circuit decided that Smothers presented enough evidence for a trial about whether Solvay’s real reason for his termination was his use of FMLA leave or his disability. Smothers provided evidence that other employees who committed similar safety violations were not fired. Five of the six decision-makers who fired Smothers were also involved in at least one decision in which a similarly situated employee was treated more favorably after violating the same or comparable safety rules. Smothers also pointed to the negative comments, negative performance rating, failure to promote and pressure to change shifts because of his FMLA-protected absences as evidence that the safety violation was a pretext for firing him for his FMLA leave. Moreover, Smothers showed that the decision-makers had failed to sufficiently investigate the argument he had with Mahaffey, basing their decision almost entirely on Mahaffey’s version of events. The Court decided that a reasonable jury could find that Solvay’s investigation into the quarrel was not fair or adequate. Based on this evidence, the Court found that there were issues of fact on whether Solvay’s termination reasons were pretextual and reversed the dismissal of Smothers’ FMLA retaliation claim.

Smothers Was Disabled Under ADA

Smothers also asserted that his firing was in violation of the ADA. He presented evidence that his medical condition was an impairment that substantially limited a major life activity, specifically his ability to sleep. Because the facts would allow a reasonable jury to conclude that Smothers’ sleep was substantially limited, Smothers satisfied his burden of establishing a prima facie case of disability discrimination. As with the FMLA claim, the Court found sufficient evidence that Solvay’s stated termination reasons may have been a pretext for disability discrimination. Therefore, the Court reversed the dismissal of Smothers’ ADA claim as well.

No Breach of Implied Contract Based on Employee Handbook

Smothers also alleged that Solvay violated the terms of its employee handbook, giving rise to a claim for breach of implied contract under Wyoming law. The Court disagreed. Wyoming recognizes a claim for breach of implied contract if an employer fails to follow its own required procedures, such as the procedures laid out in an employee handbook. Solvay’s handbook contained a four-step progressive disciplinary process, with termination as the last step. But it also contained a provision that allowed Solvay to terminate an employee immediately for a serious offense, including a safety violation. Because the discipline policy unambiguously gave Solvay the discretion to fire employees who violate safety rules, the Court found that Solvay’s decision to terminate Smothers for violating a safety rule did not violate the terms of the employee handbook. Therefore, the appeals court upheld the trial court’s dismissal of Smothers’ breach of implied contract claim.

Back To Court They Go

We don’t know whether Smothers or Solvay will prevail if this case goes to trial but we do know that the appellate court thought that some of the evidence about the actions of Solvay managers could demonstrate that Solvay acted with a discriminatory motive:

Supervisors and co-workers gave Smothers a hard time about taking FMLA-protected leave.
Solvay failed to properly investigate all sides in the quarrel, accepting one employee’s version of events as fact.
The decision-makers treated Smothers more harshly than other similarly-situated employees who had violated similar safety rules.
Managers and supervisors considered Smothers’ FMLA absences when providing his performance evaluation and rejecting him for a promotion.

Evidence of these actions prevented Solvay from obtaining a grant of summary judgment on appeal. While Solvay may dispute Smothers’ evidence when the case actually goes to trial, this case stands as a lesson about the kinds of supervisory comments and actions that can feed into a discrimination claim, and a good reminder of how carefully employers must manage employees with injuries or disabilities.

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May 28, 2013

Addressing ADA Concerns When Employee is Physically Able But Psychologically Impaired

By Jude Biggs

The Tenth Circuit's decision in Koessel v. Sublette County Sheriff's Dep't, No. 11-8099 (10th Cir. May 14, 2013) raises an interesting issue: if an employee’s doctor says he can physically perform the essential functions of his job, but another doctor says psychological issues may interfere with his ability to perform his job, must an employer keep him on the job? The good news? Koessel says , “No.”

Kevin Koessel worked as a patrol officer with the Sublette County Sheriff's Office when he suffered a stroke. After he recovered, he worked part-time until he was cleared to work full-time. Co-workers reported concerns about his behavior, so a neurologist examined him. The neurologist found him physically able to work from a neurological standpoint, but recommended Koessel be examined by a psychologist due to cognitive issues. The psychologist found some of Koessel's symptoms (for instance, fatigue, episodes of lightheadedness, and weeping) could interfere with the performance of the high-stress parts of his job. Koessel returned to a temporary position, but was terminated after funds were cut from the Sheriff’s budget. Koessel sued for, among other things, disability discrimination under the ADA.

Koessel’s employer argued it properly let him go, as he was unable to do essential functions of his job. The psychologist had recommended Koessel be placed in a low-stress position that did not require frequent contact with the public; hence, he could not preserve the peace at public gatherings, neighborhood disputes and family quarrels; testify in court; or apprehend suspects. Koessel agreed those were essential job functions, but argued he could do them because his own doctor cleared him to return to work full time and he had performed 35 traffic stops without incident after returning from work.

The Tenth Circuit concluded Koessel’s examples only showed he could do the job physically, not that he could handled his job psychologically in high-stress situations. In so ruling, the Tenth Circuit disagreed that a jury should decide the issue of whether Koessel was qualified for his job, because there was no indication the psychologist's report was unreliable; there was no question Koessel remained impaired cognitively and psychologically; and there was no evidence Koessel had encountered high-stress situations after returning to work.

Employers will deal more and more with Koessel-like situations as baby boomers age and suffer strokes, heart attacks, or other medical issues that can have an impact on cognitive abilities. It shows the importance of getting an expert/specialist’s opinion before making a termination decision, as a specialist’s opinion is more likely to “trump” a general practitioner’s opinion. Still, given the risk of disability and age related discrimination issues, and the sympathy a jury is likely to feel for a former employee who has health issues, it also shows the importance of proceeding with great care (and with the advice of counsel) before making such termination decisions.

January 14, 2013

ADA Reasonable Accommodations Require an Interactive Proces

by Mark B. Wiletsky

Although some say talk is cheap, that saying does not apply when evaluating an employee’s request for a job accommodation under the Americans with Disabilities Act (“ADA”). Instead, it is important to engage in an open discussion with the disabled employee; failing to do so can easily land your organization in court. A Texas school district recently learned that lesson when a federal judge ruled that discharging a disabled classroom aide without engaging in a good faith interactive process regarding reasonable accommodations could result in liability for the district for a violation of the ADA. Nelson v. Hitchcock Indep. Sch. Dist., No. 3:11-CV-00311 (S.D. Tex. Dec. 21, 2012).

Disabled employee needed accommodation after exhausting FMLA leave. Iris Nelson had worked for the Hitchcock Independent School District (“District”) as a teacher’s aide for the Head Start program since 1996. In February 2009, Nelson learned she needed to have knee replacement surgery on both knees due to severe bilateral knee arthritis. Nelson soon took leave covered by the Family and Medical Leave Act (“FMLA”) for surgery on her right knee. In August 2009, shortly before the new school year was to begin, Nelson met with the District’s payroll and benefits supervisor, Theresa Fails, to request another two-and-one-half months off for surgery on her left knee. Fails informed her that she had exhausted her FMLA leave and would not be eligible for additional leave until the following year.

Nelson claims that she told Fails that she would work using a cane or a walker until she became eligible for more leave but Fails allegedly responded that she could not use walking aids. Nelson also stated that she would just have to take pain pills, a suggestion Fails supposedly refused as well. After the meeting, Fails notified the District’s interim Head Start director and the school superintendent of the conversation and recommended that until a doctor’s note could be obtained and a decision made, Nelson should not be allowed to return to work.

Without hearing anything more on her accommodation request, Nelson returned to work on August 17, 2009 and filed a form requesting leave which would begin on August 20, 2009. Nelson did not receive a response to her leave request and unilaterally took off to have her surgery on August 23, 2009. On August 25, 2009, the District’s superintendent sent Nelson a letter denying her leave request, noting that she had exhausted her FMLA entitlement. Six days later, the superintendent sent Nelson a notice of termination, informing her that her “employment with Hitchcock ISD has been terminated for being unable to perform the essential functions of your job.” Not surprisingly, Nelson sued, claiming that the District violated the ADA when it terminated her instead of accommodating her disability.

Court finds evidence that District failed to engage in ADA-required interactive process. The Court concluded that Nelson’s ADA claim could proceed to trial as Nelson presented sufficient evidence that the District never engaged in the communication and good faith interactive process regarding her accommodation requests that is required under the ADA. The Court noted that Nelson offered to postpone her surgery had she been allowed the accommodation of using a cane, walker or pain pills. Although the District argued that it would have been unreasonable to allow Nelson to supervise children while using a walking aid or while under the influence of pain medications, the Court ruled that it need not reach a reasonableness determination because the District had failed to engage in the required interactive process that would have allowed the District to assess the alternate accommodations. The Court pointed out that had the District discussed the alternatives with Nelson, it could have clarified whether she needed a walking aid or pain pills or both, whether any over-the-counter medications would have been sufficient and what the side effects of any required dosage would be. Only by engaging in that dialog could the District determine whether Nelson’s requested accommodations would impose an undue hardship on the District.

Lessons learned. When faced with an accommodation request, employers should not jump to deciding whether the proposed solution places an undue burden on the company, without first actually talking to the employee and seeking further input from the employee if the proposed solution seems unreasonable or unworkable. Employers must engage the employee in an interactive dialog to discuss what would allow the employee to perform the essential functions of their job. Remember, when it comes to reasonable accommodations under the ADA, there is often more than one way to skin a cat. The first accommodation requested may not be the only, or even the best accommodation for a particular disabled employee. By including the affected employee in the accommodation process, employers meet their ADA obligation while exploring the options that could allow the employee to stay on the job. You may not always reach a solution that works for both parties, but as long as you try in good faith—and appropriately document your efforts—it is much harder for the employee to attack your process and actions in a lawsuit down the road.