10th Circuit Holds Migraines Not a Disability Under the ADA

Despite the fact the 2008 amendments to the Americans with Disabilities Act were enacted to make it easier for plaintiffs to qualify as individuals with disabilities, the Court of Appeals for the Tenth Circuit has delivered a decision that does the opposite of that intent.  In Allen v. Southcrest Hospital, No. 11-5016, 2011 U.S. App. LEXIS 25488 (10th Cir. Dec. 21, 2011), the plaintiff transferred to work for a particular doctor, who had a busy practice that was especially hectic on the three days during the doctor’s compressed office hours. Shortly after the transfer, the plaintiff claimed that she began having migraines. These migraines varied in severity - as some days she could go to work, while other days she had to stay home - and she was prescribed medication for the pain. In August 2009, after requesting and being denied FMLA leave and allegedly being denied a reasonable accommodation for her migraines, the plaintiff resigned, because of “migraines and hypertension.” Although she later tried to rescind the resignation, the employer told her that her resignation was accepted the day she tendered it and that her employment was terminated.


Upon filing both federal FMLA and ADA claims, the employer moved for summary judgment arguing the plaintiff was not disabled as defined under the ADA and the district court granted the motion.  On appeal, the 10th Circuit noted that the plaintiff had to show that: (1) she had a recognized “impairment;” and (2) the impairment substantially limited one or more of her major life activities.  It was undisputed that the migraines were an "impairment" but what was disputed was whether the plaintiff was substantially limited in one or more of her major life activities.  The plaintiff claimed that the migraines affected her ability to “work,” to “care for herself,” and to “sleep.”
 

The employer was able to prevail on appeal but critiquing the plaintiff's daily routines both when she had migraine pains and when she didn't.  The 10th Circuit was not persuaded that the plaintiff's migraines as an impairment "substantially limited her in one or more of her major life activities."  

This decision does not mean that migraines are not disabilities ever under the ADA as disability discrimination cases are a case-by-case evaluation.  It may be that a different plaintiff suffering from migraines may very well be substantially limited in major life activities to qualify as an individual with a disability under the ADA.

Employment Case Law Update

--Savage v Gee, 6thCir, January 4, 2012, Case No. 10-3839:  Court of Appeals for the Sixth Circuit AFFIRMS grant of summary judgment in favor of defendant on all of plaintiff's claims, which included a First Amendment violation and cosntructive discharge.  The plaintiff was Head of Reference and Library Instruction at The Ohio State University’s Bromfield Library in Mansfield, Ohio.  In 2006, the plaintiff joined a committee that sought to select a book all incoming freshman would be asked to read.  It was the plaintiff's recommendations that served as the basis of his suit as Savage wanted to "choose something that confronts the accepted wisdom of Ohio State University."  Savage then selected a book that had a anti-homosexual message, which highly offended another member of the committee. 

Savage's recommendation led to a serious of sexual harassment complaint exchanges with the university as well as a series of emails discussing Savage's behavior though the university chose to not terminate him.  Eventually Savage took a leave of absence and claimed the university did nothing to protect him against the attacks.  Savage then instituted claims in state court against the university and resigned.  When Savage filed suit in federal court before dismissing his state-level claims, the university moved for summary judgment on the grounds that Savage had waived all federal and state damages claims against state officials arising from the above-recited facts by bringing an action in the Court of Claims, citing Leaman v. Ohio Department of Mental Retardation & Development Disabilities, 825 F.2d 946 (6th Cir. 1987) (en banc).  The district court then found that Savage’s claims for damages were barred byLeaman; his right to free speech was not infringed because his speech was not protected; he was not constructively discharged; he lacked standing to bring a facial challenge to the University’s sexual harassment policy; and that his as-applied challenge to the policy failed because he sustained no

cognizable harm because of the policy.

--Draper v Martin, 7thCir, December 30, 2011, Case Nos. 10-2837 & 10-3054:  Defendants' motion for summary judgment on plaintiffs' wrongful termination claims AFFIRMED.  Plaintiff's filed claims in response to losing their jobs arguing that their terminations were politically motivated in violation of the First Amendment, and second, that they were denied a property interest in their jobs in violation of the Fourteenth Amendment.  In affirming the lower court's decision, the 7th Circuit held that these claims were barred by Illinois' two-year statute of limitations for wrongful termination claims given the date they were issued unequivocal termination notices.  The court did not delve into the merits of the underlying claims.

--Hemphill v City of Wilmington, DDel, December 20, 2011, Case No. 10-679:  Plaintiff's hostile work environment claim based on race dismissed on summary judgment but retaliation claim under Title VII proceeded to trial and, after a three-day trial, a jury returned a verdict finding defendant had retaliated against plaintiff when it forced her to transfer from her supervisory position back to her position as administrative assistant to the Chief of Police.  The jury awarded no compensatory and the equitable remedies of reinstatement, back pay, and other appropriate equitable relief were reserved for the judge to determine.  The judge awarded placement in an equivalent position, back pay, and equitable relief in the form of a court order requiring the city to hire a third party to further train its managers on handling harassment complaints and also to post a complete and accurate account of the outcome of the litigation.

--EEOC v The Gap, Inc, EDMich, December 27, 2011, Case No. 10-14559:  Court DENIES EEOC's motion to amend their complaint and modify the scheduling order.  After initially filing his charge with the EEOC, the charging party discovered that a symptom of his disability was attributable to HIV and not glomerulonephritis as originally thought.  In denying the EEOC's motion, the magistrate noted the length of unexcusable delay and prejudice to an employer The magistrate also found that because the agency knew and concealed the fact that this was an HIV case, the EEOC also denied the employer a reasonable opportunity to conciliate and refused the EEOC’s alternative request to stay the proceedings for further conciliation.

7th Circuit Holds Employee Not Entitled to Overtime Pay Despite Substantial Pre-Shift Work

Just catching up on a lot of blogging and case updates I've missed over the last several weeks and noticed this decision out of the Court of Appeals for the Seventh Circuit on the ever-popular issue of compensable time.  The case, Kellar v. Summit Seated, Inc., Case No. No. 11-1221, involved an employee who performed substantial pre-shift activities and believed she was entitled to overtime pay because the activities constituted compensable time.  However, the 7th Circuit held that the employee was not entitled to overtime pay because she failed to show that her supervisors had actual or even constructive knowledge of her overtime work. 


The 7th Circuit also found several other things wrong with the plaintiff's pre-shift routine in upholding the lower court's decision.  First, the court noted how the plaintiff conceded that most employees who clocked in early did not perform work until their shift began.  Next, the court noted that the plaintiff's behavior did not raise any red flags.  For instance, the plaintiff did not record her pre-shift time – rather she consistently indicated on her time cards that she arrived at the beginning of her shift, not before it. Moreover, she attended weekly meetings with her supervisors in which schedules were discussed, but never disclosed that she had worked pre-shift time or complained about the same. In sum, the supervisors had no reason to know that she had worked unpaid overtime.


While it is unfortunate that this plaintiff worked to the employer's benefit and will not receive pay, the lesson to be learned here is to keep your employer informed when it comes to pay.  As this case highlights, it is never safe to assume that you will be paid for any and all work performed.  

Department of Workforce Development Overpays Unemployment Insurance Claimants

The Wisconsin Department of Workforce Development recently notified state law makers that an error in computer coding resulted in more than 600 unemployment compensation claimants receiving overpayments of about $280, on average.  From the Milwaukee Journal Sentinel on the overpayment errors: Sixty-two people had overpayments applied to existing balances they owed the agency. Those are in the process of being reversed internally. The remaining 562 will be offered the option of returning the overpayments in installments.

University of Wisconsin Law School to Argue Interesting Unemployment Compensation Case in Front of Court of Appeals

On January 18, 2012, the Wisconsin Court of Appeals for District IV will hear oral arguments in a case involving unemployment compensation and the issue is what effect the change in language in Wis. Stat. sec 108.02(12)(a) has on claimants for unemployment insurance.  Specifically, a part-time real estate agent began collecting unemployment when he was laid off from his full-time manufacturing job.  Later, the claimant switched real estate agencies and the Department of Workforce Development held that the claimant quit his job without good cause attributable to the employer and cut off his unemployment benefits.  The reason this is on appeal is because the Department made this determination even though the claimant performed services that are not covered employment for purposes of unemployment purposes.

In 2005 the Wisconsin legislature made a change in the language of Wis. Stat. sec. 108.02(12)(a) by removing the phrase, "in an employment."  The Wisconsin Labor & Review Commission (LIRC) argue that removal of the phrase means claimants meet the definition of employee for any services they perform for an employing unit, regardless of whether that service is in covered or excluded employment. 

This link has more information on the technicalities of the case.  Best of luck to the University of Wisconsin Law School's Unemployment Appeals Clinic.  I used to volunteer with this clinic when I was a law student there!

EEOC Discusses Upcoming New Guidance on Reasonable Accommodation Under Americans with Disabilities Act Amendments Act

The ADA Amendments Act (ADAAA) took effect on January 1, 2009 and put new emphasis on accommodating otherwise qualified applicants and employees with disabilities.  However, the Equal Employment Opportunity Commission (EEOC) has not issued guidance since well before the ADAAA took effect and not since 2002.  In  a recent webinar hosted by the American Bar Association, a panel consisting of EEOC commissioners Chai Feldblum and Victoria Lipnic discussed reasonable accommodation in light of the ADAAA to shed light on what to expect out of the upcoming EEOC guidance.


Bloomberg has an excellent summary of the webinar's highlights here.

New Businesses in Wisconsin Increases

The Wisconsin Department of Financial Institutions has revealed its 2011 figures and numbers and revealed that 33,190 new businesses formed in 2011 which is up from 32,458 the previous year.  The Milwaukee Journal Sentinel has a VERY brief article on the new business increase.  


PS
Enochs Law Firm, LLC is one of the new businesses!

Mexican Immigrant Indianapolis Hotel Workers File Wage & Hour Class Action Suit

More than a dozen ow-level hotel workers in Indianapolis have filed a class-action lawsuit against ten of the city's hotels and a labor staffing agency, claiming they were routinely cheated out of pay with the knowledge of hotel management.  The workers claim they had to work while off-the-clock and during unpaid breaks which often put them below the minimum wage rate of $7.25/hour.  The suit is potentially only the tip of the iceberg in a widespread problem in the workplace and could potentially involve more than a thousand workers and millions of dollars in claims, according to the hotel workers union UNITE HERE, which is organizing workers in Indianapolis.


From The Huffington Post article on the lawsuit:

The Hospitality Staffing Solutions (HSS)-staffed hotels named in the Indianapolis lawsuit include Embassy Suites, Marriott, Westin, Hyatt, Holiday Inn and Omni properties.

Martha Gonzalez, 28, one of the workers now suing, tells HuffPost she worked at Hyatt and Marriott properties as an HSS employee earning the minimum wage. She says that she was required to come in early and prepare her housekeeping cart before punching in, and that she often wound up working through her lunch break or clocking out to finish work at the end of the day, to avoid being punished. She says she quit last summer.

"I was sick of getting a check that didn’t meet my family's needs," Gonzalez, who's from Mexico, says through a translator. "Every check was just too small. I was so tired of working in a place under pressure, getting calls from the manager, 'Are you finished? Are you finished?'"

This is a huge, huge problem as a lot of immigrants are fearful of losing their jobs and concerned about immigration issues which prompts employers to take advantage of their immigrant employees.   However, immigrant employees should not be worried as they have rights in this country even if they are here unlawfully or not yet through the immigration process.  An unlawful immigration status does not allow rights to be circumvented and immigrant employees who believe they are not being paid properly are encouraged to contact attorneys who practice wage & hour law.

EEOC Issues Informal Discussion Letter on the ADA and High School Diploma Requirements

Last month the Equal Employment Opportunity Commission (EEOC) posted an informal discussion letter on its website addressing the requirement of a high school diploma as it relates to jobs and job postings.  Some of you may be wondering how requiring a high school diploma may violate a disability anti-discrimination statute such as the Americans with Disabilities Act (ADA), but think about it: if an individual has a learning disability/impairment and is therefore restricted from a large pool of jobs that he or she could probably perform without a high school diploma, that would run afoul of the scope and spirit of the ADA.


From the informal discussion letter:

Under the ADA, a qualification standard, test, or other selection criterion, such as a high school diploma requirement, that screens out an individual or a class of individuals on the basis of a disability must be job related for the position in question and consistent with business necessity. A qualification standard is job related and consistent with business necessity if it accurately measures the ability to perform the job’s essential functions (i.e. its fundamental duties). Even where a challenged qualification standard, test, or other selection criterion is job related and consistent with business necessity, if it screens out an individual on the basis of disability, an employer must also demonstrate that the standard or criterion cannot be met, and the job cannot be performed, with a reasonable accommodation. See 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, 1630.15(b) and (c); 29 C.F.R. pt. 1630, app §§ 1630.10, 1630.15(b) and (c). 

Thus, if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

However, there will obviously be a large pool of jobs that meet the "consistent with business necessity" requirement such as jobs as doctors, pharmacists, nurses, etc.  

Fitness Instructor Fired for Tweet About Big Mac

In yet another case of an employer over-reacting to a harmless social media posting, a fitness instructor's termination over a Twitter post is making news.  Grant Hill (not the NBA star), a cycling instructor at Life Time Fitness in Rockville, Maryland, like a lot of Americans, has a Twitter account and likes to tweet about life's musings.  One day Hill saw a coworker eating a Big Mac from McDonald's and decided to tweet:

“A McDonalds bag sits on an employees desk @lifetimefitness aka “the healthy way of life company.” Ah the irony.”

He was later terminated.  


Apparently, Life Time Fitness did not find the post humorous, and, according to the "Capital Business" article on the Twitter firing, "triggered weeks of back-and-forth with managers demanding that the tweet be deleted. Hill said he refused unless Life Time allowed him to write an article about the health risks of fast food for its widely distributed magazine."  Life Time Fitness is claiming the termination was not for the tweet but, instead, "for his work outside the company, which Life Time deemed to be a competing 
personal fitness business."


So, then, the inevitable question that ensues for such a termination: "Is this legal?"  Well, Hill wouldn't have a 1st Amendment claim because Life Time Fitness is a private employer and not public.  Hill "probably" doesn't have a discrimination claim unless other similarly-situated employees did the same, were in a different protected class and were treated more favorably.  That then leaves labor laws and the National Labor Relations Act (NLRA) which the National Labor Relations Board (NLRB) governs.  The most used section of the NLRA in social media terminations is Section 7 governing "concerted protected activity."  In this case, while it's not entirely obvious how Hill's tweet is protected, Hill did claim the tweet related to Life Time Fitness' "mission," and an argument could be made!