EEOC has good day on ADA case in Fifth Circuit January 4, 2015
President George H.W. Bush signing the landmark Americans with Disabilities Act in 1990. 24 years later, in EEOC v. LHC Group, Inc., 12/14/14, the Fifth Circuit revived a significant ADA case finding that the questions whether a home health care nurse was promoted to a team leader position, whether driving was an essential function for that position, and whether the employee’s inability to drive due to a seizure disorder could have been accommodated in that role were questions for a jury.
Tthe employee provided home health care to patients; she also spent “a couple of hours” traveling between patients. In March 2009, her supervisor decided to promote her to a team leader position, though the parties disputed whether she was actually promoted or simply training for the position. Team leaders manage patient care, communicate with doctors and pharmacists, schedule field nurses, and fill in when nurses are absent.
On May 26, the employee had a grand mal seizure at work and was taken by ambulance to the hospital. Her doctor released her to work two days later. On June 1, the employee discussed her medical condition with her supervisor and the director of nursing (DON). They gave her a copy of the team leader job description and asked for a release from her neurologist. He reviewed it, added a note to it stating “no driving x 1 year, no working on ladder,” and released her for work. She discussed the limitations with her supervisor and the DON; the three agreed that she would get rides to work from a coworker who lived next door to her.
The employee’s anti-seizure medicine made her “very tired” and she had memory problems. When she returned to work, she asked her supervisor for extra help with the computer-related requirements of her job, including remembering passwords and using the scheduling software. According to the employee, the supervisor simply walked away. On June 7, the employee worked a shift as a field nurse; her mother drove her, with the DON’s approval. During the next week, she continued to struggle with several team leader duties. The court found the record unclear on the degree of the employee’s difficulties and whether she was aware of her shortcomings.
On June 19, the supervisor and the DON met with the employee, pointing out several problems with her computer skills, errors with patients, and communication and scheduling problems. They set a target date of July 31 for her to “master” the team leader duties. The supervisor also allegedly told her that if her disability manifested again at work, the company would be in “trouble.” The next Monday, the employee missed work without approval to take a child to the doctor. The same day, the employer received a complaint from a patient who asked that the employee not be sent back to her home. The employee was soon terminated. The HR rep said nothing about her performance but simply stated that she was being let go “because you’re a liability to our company.”
The EEOC filed suit on behalf of the employee and the district court granted summary judgment for the employer on its ADA claims.
On appeal, the Fifth Circuit held that the proper causation standard in an ADA case is whether the employee was “subject to an adverse employment decision on account of his disability.” Turning to the merits, tt was undisputed for purposes of the motion that the employee had a disability. To show that she was qualified, the EEOC had to show she could perform her job’s essential functions with or without a reasonable accommodation. In the court’s view, the district court correctly held that driving was an essential function of the field nurse position and the employer could not have provided a reasonable accommodation that would have enabled her to perform this function.
However, the parties disputed whether the employee had actually been promoted to team leader. The EEOC offered evidence that the employee was a field nurse. Contrary to the court below, the appeals court found triable issues on whether driving was an essential function of the team leader position. The job descriptions for both jobs require a driver’s license, insurance, and access to a dependable vehicle, and they stress that significant portions of daily assignments require travel. However, the deference given an employer’s judgment on what functions are essential is not absolute. The employee estimated that, as a field nurse, she spent a “couple” of hours during her eight-hour day driving, but team leaders drove far less often. And the DON testified that many team leader tasks were performed in the branch office.
The appeals court also found questions of fact on whether the employer could have reasonably accommodated the employee’s inability to drive in the team leader role. While none of the options offered by the EEOC (public transportation, van services, rides from the employee’s mother) would have been a feasible solution as a field nurse because driving was central to that role, those options might have enabled a team leader to perform her duties. Indeed, the team leader job description stated that travel can be done “via car or public transportation.” Thus, there were triable issues on whether driving was essential as a team leader and, if so, whether the employee’s inability to drive could have been accommodated in the team leader role.
The Fifth Circuit also found questions of fact on whether the employer could have reasonably accommodated the employee’s difficulties with the essential computer and communications duties of a team leader. It first noted that the parties disputed the extent to which her disability precluded her from doing computer-related tasks. The EEOC conceded that she struggled, but contested the employer’s assertion that her difficulties predated her seizure. Plus, the employee asserted that her limitations were largely due to an unusually high dosage of anti-seizure medication, which she was in the process of tapering.
In the court’s view, if the employee was “unable to perform her essential computer-based tasks, then LHC had a duty to work with her toward a reasonable accommodation.” She expressly reached out to her supervisor, indicating she wanted temporary help using computer programs and remembering passwords due to her medication levels but her supervisor kept silent and walked away. On this record, a jury could find that the employee was denied an interactive process, the court concluded.
To show a nexus between the employee’s disability and her discharge, the EEOC highlighted that her supervisors criticized her performance only after her seizure and it claimed the criticisms were “exaggerated, unfounded, or fabricated.” It also pointed to the supervisor’s remark that the employer would be in “trouble” if her disability manifested again and the HR rep’s remark that she was fired because she was a “liability” to the company because of her disability. To the appeals court, the lower court erred in ruling that these statements on the EEOC charge were hearsay. They were made by employees speaking on behalf of the company and fell under Fed. R. Evid. 801(d)(2). In addition, the statements were not offered for the truth of the matter asserted. In light of all of this evidence, then, the appeals court found a triable issue on whether there was a nexus between the employee’s disability and the adverse employment decision. The EEOC therefore made out a prima facie case of discriminatory termination.
The court also found questions of fact on whether the employee’s termination for poor performance and inability to perform essential functions was pretextual. Several portions of the record supported the inference that discrimination was a motivating factor in the decision, including the comments about her being a liability for the company and about the company being in trouble if her disability manifested again on the job. For all of these reasons, summary judgment was reversed on the discriminatory discharge claim.
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