Title I of the Americans with Disabilities Act (ADA) 

Employment - Definition of Disability

Gogo v. AMS Mechanical Systems, Inc., 737 F.3d 1170 (2013)
The Court of Appeals vacated and remanded the District Court’s dismissal of the employee’s complaint, where the employee alleges that his employer fired him because of his disability; vision and circulatory problems caused by high blood pressure, and therefore violated the Americans with Disabilities Act. The Court of Appeals held that the employee’s disabilities qualify under the 2008 amendments of the ADA, “as an impairment that substantially limits a major life activity, or a record of one, even if the impairment is “transitory and minor” (defined as lasting six months or less)”. The court further held that his forty-five years of experience as a pipe welder show that he is qualified to perform the essential functions of his job.

Employment - Essential Job Function

Samson v. Federal Exp Corp., 746 F.3d 1196 (2014)
Samson brought suit against FedEx after they withdrew their offer of employment based on his medical examination which showed that he is a Type-1 insulin-dependent diabetic. The District Court in this case granted summary judgment, holding that Samson could not perform an essential function of the job (test-driving). Samson appealed and the Eleventh circuit reversed, holding that test-driving was not an essential function of the position since there were other employees who could perform the test drives and the need for testing was very minimal.

McMillian v. City of New York, 711 F.3d 120 (2013)
McMillian brought suit against his employer alleging that his employer’s response to his request for accommodations was insufficient and a violation of the ADA. McMillian requested a late arrival time since his medication for Schizophrenia make him extremely “drowsy” and “sluggish” in the morning. The District Court granted summary judgment for his employer and dismissed all of McMillan’s claims with prejudice, stating that arriving within one hour time frame is an essential function of the job. The Court of Appeals vacated and remanded the District Court’s grant of summary judgment for the City of New York, holding that there was a genuine issue over an essential function of the employee’s position. The court held that McMillian worked for many years with late arrivals with the City’s approval and the City’s flex-time policy, which permits employees to arrive to work by 10:15 am, implies that punctuality is not an essential function of the job.

EEOC v. AT&T Corp., 1:12-CV-00402-TWP, 2013 WL 6154563 (S.D. Ind. Nov. 20, 2013)
This matter went before the District Court on cross-motion from both parties for summary judgment. EEOC claims that AT&T violated the ADA for two reasons: discriminatory discharge and failure to accommodate. EEOC represents a former AT&T employee who was diagnosed with Hepatitis C–3a, which required her to take intermittent and then extended leave under FMLA. The court held that there was an issue of fact as to whether attendance is an essential job function, as well as to whether AT&T was on notice that the employee was seeking reasonable accommodations. The Court denied both motions for summary judgment.

  Basden v. Professional Transp. Inc., 714 F.3d 1034 (2013)
Basden alleged that her former employer, Professional Transportation, Inc., (“PTI”) violated the ADA when they denied her request for 30 day leave and instead terminated her. The District Court found that Basden failed to show a prima facie right to the ADA or FMLA and granted summary judgment in favor of PTI. The seventh circuit affirmed this decision, stating that the employee failed to present sufficient evidence that she was able to perform an essential function of her job even with a reasonable accommodation. The court determined that a person whose disability keeps them from regularly attending work cannot perform their essential job function and therefore does not qualify under the ADA. The court of appeals held that the employer was not liable under the ADA for failing to perform the required interactive process where the employee has failed to show that she could perform an essential function of her job. Further, the court held that Basden did not qualify for FMLA since she had not yet met the 12 month tenure requirement.

Employment - Direct Threat

Equal Employment Opportunity Comm'n v. Beverage Distributors Co., LLC, No. 11-CV-02557-CMA-CBS, 2013 WL 6458735 (D. Colo. Dec. 9, 2013)
EEOC charges were filed after the defendant withdrew an offer of employment to an employee who worked for the company for four years and whose previous position was eliminated. The withdrawal was based on employee’s medical examination which indicated that he was legally blind and could be a “direct threat” unless reasonable accommodations were made.  The EEOC alleged that the Defendant violated the ADA by using the results of the medical examination unlawfully. The court denied the employer’s defense that the employee failed to mitigate because the company failed to identify comparable jobs that the employee could have performed. The court also ordered the Employer to hire the employee as a Night Warehouse Loader and awarded the employee interest on back pay.

Brandt v. University of Colorado Hospital (D. Co. 2011)
Brandt was denied a position as a surgical technician with defendant hospital after disclosing her medical history of seizures. Brandt's seizures were infrequent and well-controlled with medication and she had been able to perform successfully in similar positions prior to her rejection. Defendant filed a motion for summary judgment raising safety-related arguments in support of the rejection and plaintiff filed an opposition brief.
Complaint
Plaintiff's Brief in Opposition to Summary Judgment Motion

EEOC and Fultz v. Rite Aid, 750 F. Supp. 2d 564 (D. Md. 2008)
In 2012, a consent decree was entered in this case, requiring Rite Aid to pay $250,000 in damages and attorney fees. Rite Aid, allegedly based on concerns about safety risks related to his epilepsy, terminated Christopher Fultz from his position as a pharmacy order agent at the company's customer service center in Maryland. The company allegedly failed, in violation of the ADA, to properly assess whether his particular condition did indeed pose an unacceptable risk, and whether any reasonable accommodations could have eliminated or reduced any such risks. In addition to the monetary payment, the settlement requires Rite Aid to modify its policies applicable at the facility to ensure compliance with the ADA's requirements regarding reasonable accommodations and individualized assessments of employees with epilepsy and other disabilities, and to provide training on ADA issues tor managers. Plaintiff's brief in opposition to summary judgment (provided below) addresses coverage issues under the ADA prior to the 2008 amendments, along with direct threat issues.
Consent Decree
Plaintiff's Brief in Opposition to Summary Judgment

Employment - Medical Inquiries

Blake v. Baltimore Cnty., Md., 662 F. Supp. 2d 417, 418 (D. Md. 2009).
A police officer brought a lawsuit against Baltimore County, Maryland after a commanding officer ordered that he undergo a neurological test (EEG) to determine if he was fit for duty ten years after he experienced a single seizure and received clearance to return to work. The officer alleged that the testing was ordered in retaliation for his testimony in favor of a fellow officer who was forced into retirement because of epilepsy. The court awarded the officer $225,000 after a trial.
Amended Complaint
Plaintiff's Motion for Summary Judgment on Second Amended Complaint
Proposed Jury Instructions
Proposed Voir Dire

Harrison v. Benchmark Electronics Huntsville, Inc., 593 F.3d 1206, 1209 (11th Cir. 2010)
The court of appeals reversed the trial court's grant of summary judgment to the employer and remanded the case. In this case, the plaintiff, who applied for a permanent position with the employer, filed suit alleging an improper medical inquiry, failure to hire due to a perceived disability and termination due to a perceived disability. The Epilepsy Foundation and EEOC filed amicus briefs in this case.
Defendant's Motion for Summary Judgment
Plaintiff's Response to Defendant's Motion for Summary Judgment
Defendant's Reply to Response
Epilepsy Foundation's Amicus Brief
Opinion of the 11th Circuit Court of Appeals

Employment - Driving: Ineligibility for DOT Commercial Driving Certificate

Whitehead v United Parcel Service Inc., 387 F. App'x 16 (2d Cir. 2010).  
A truck mechanic was terminated by UPS because he could not qualify for a U.S. Department of Transportation medical certificate to drive trucks interstate. Such a certification is required to operate a "commercial motor vehicle," i.e., one weighing in excess of 10,000 pounds which is driven across state lines. DOT regulations provide that anyone with a history of seizures or who is on antiseizure medication is ineligible for the medical certification; however, DOT operates an exemption program concerning this requirement.  During the course of litigation, it became clear that the position in question did not involve driving commercial motor vehicles in interstate commerce, and therefore, plaintiff did not need to possess a DOT medical certificate. DOT issued an opinion letter, addressing the facts of this case, indicating that interstate commerce is determined by the shipper's intent and that a package vehicle carrying no cargo that is test driven by the mechanic within one state (New York) is operated in "intrastate, not interstate, commerce." Accordingly, the driver of such a vehicle would not be obligated under DOT regulations to obtain a medical certificate. A confidential settlement was reached.
Complaint 
Plaintiff's Memo in Opposition to Defendant's Summary Judgment Brief
DOT Opinion Letter

Coverage of Persons with Epilepsy under the ADA prior to the ADA Amendments Act

Russo v. Sysco Food Services of Albany LLC., 488 F.Supp.2d 228 (N.D. N.Y. 2007)
The issue before the court was whether an employer violated the ADA in denying a request for reassignment to a truck driver who had lost his commercial driver's license as a result of experiencing seizures, when the new positions sought apparently did not require driving. After losing his truck driver's license, SYSCO refused to place Mr. Russo in a position in the company warehouse because the employer's doctor found that he could not operate commercial vehicles or equipment unless he was seizure free for 2 years. Mr. Russo was also denied a position as a night time supervisor because there was a possibility that he might be required to drive.

Based on these findings of the company doctor, the court ruled that "SYSCO regarded plaintiff as unable to work in any job requiring the operation of trucks, forklifts, or any other company vehicle. Positions requiring the operation of all vehicles and heavy equipment constitute a class of jobs. Thus plaintiff has shown that SYSCO regarded his epilepsy as a substantial limitation on his ability to work. Therefore, as a matter of law, plaintiff is an individual with a disability." The court also found that there were questions of fact as to whether the positions sought required driving and/or whether Mr. Russo could safely perform those duties. These issues were deferred to trial.
 Summary Judgment Brief of Plaintiff

Taylor v. USF-Red Star Express, Inc ., 2005 U.S. Dist. Lexis 3600 (E.D. Penn. March 8, 2005), affirmed, 2006 WL 3749598 (3rd Cir. 2006), cert. denied.
The court refused to overturn a jury verdict awarding $159,000 to a dock worker whom a jury had found was improperly placed on leave in violation of the ADA, based on the employer's erroneous belief that the employee had epilepsy (which the employer believed presented an unacceptable safety risk in the position). In the Taylor case, plaintiff had two seizure-like incidents, and the employer placed him on extended leave, until he was able to produce a doctor's note clearing him to work. Judge Newcomer found that Taylor's seizures were brought on by his taking creatine, a nutritional supplement designed to enhance muscle growth, and that he did not have epilepsy. A jury awarded Taylor back pay, lost pension benefits and compensatory damages. Judge Newcomer upheld the awards to Taylor and also awarded attorney's fees to the plaintiff's attorneys. The court found that there were ample grounds for the jury's conclusions and denied the employer's motion for a new trial.

Judge Newcomer found that Red Star mistakenly perceived Taylor as having epilepsy and being prone to seizures and to sudden loss of consciousness. The court found that if the jury believed these statements, they could easily have believed that defendant regarded plaintiff as being "substantially limited" in one or more major life activities (a requirement for protection under the ADA). The court also found that there was conflicting evidence on the question whether all persons in the plaintiff's position needed to drive a forklift and whether Taylor was in fact capable of driving that vehicle, but that the jury's determination in favor of the plaintiff must be given deference, as there was ample evidence on which the jury could have based its finding that Taylor was qualified to perform the job.
Decision on the merits of plaintiff's claim
Decision on attorney's fees
Brief of plaintiff
Document Production Requests -- addresses a broad range of accommodations issues
Proposed Jury Instructions

Morris v. Oldham County Sheriff's Department (Ky. State Court, unreported, 2006)
This case involved the dismissal of a deputy sheriff who had experienced one seizure, while off-duty, after being seizure-free for 32 years, and who had been cleared to return to work by his neurologist. The examining physician concluded that plaintiff's history of seizures might create a "slight" increased risk of seizures during stressful situations. The court denied the defendant's motion for summary judgment. In the order overruling the defendant's motion, the Judge found that the plaintiff's epilepsy is a disability covered under the ADA, even though associated physical impairments can be mitigated by medication. The parties reached a confidential settlement
Plaintiff's Brief in Opposition Defendant's Motion for Summary Judgment

Rodriguez v. ConAgra Grocery Products Company, 2005 U.S. App. Lexis 25042 (5th Cir. Nov. 14, 2005)

The court of appeals reversed the trial court's grant of summary judgment to the employer and granted plaintiff's motion for partial summary judgment, finding that ConAgra improperly denied a laborer position to an individual with diabetes. The appeals court found that ConAgra regarded the individual as substantially limited in the major life activity of working (and therefore he was covered under the ADA), based in part on evidence showing that the human resources manager believed that the plaintiff was unable to perform the job because of the risk of dizziness and blackouts and that there were essentially no manual labor jobs for which he would be qualified. The plaintiff was denied the position when defendant's doctor determined he was unqualified for a position at a manufacturing plant based on a cursory examination and the results of a urine glucose test. The decision reaffirms the importance of individualized assessments of an employee's capabilities and limitations.
Appellant's Brief
Amicus Brief of the American Diabetes Association
Amicus Brief of EEOC

Jibben v. United Parcel ServiceCV No. S-02-0039-DAE (D. Nev. April 14, 2004)
In this case, the court denied UPS's motion for summary judgment, finding that there are material issues of fact which must be resolved at trial as to whether plaintiff's epilepsy amounts to a covered disability under the ADA. Similarly, the court found whether the plaintiff's condition prevented him from performing an essential function of the job (working 9.5 hours a day as a supervisor) also must be resolved at trial.

In reaching its decision on the coverage issue, the court found that Mr. Jibben experiences nocturnal seizures once or twice a month, which are not totally controlled by medication. The seizures last approximately 30 seconds to two minutes, during which Mr. Jibben is unable to walk, speak, hear or work. Following his seizures, he experiences tiredness, shakiness and difficulty concentrating. Based on these findings, the court ruled that there was a genuine issue of material fact as to whether Mr. Jibben's epilepsy substantially limits a major life activity. Regarding Mr. Jibben's ability to perform the essential functions of the job of supervisor for UPS, there was conflicting evidence as to whether the position of supervisor actually required Mr. Jibben to work at least 9.5 hours a day and work a varied and flexible schedule (working beyond 45 hours arguably would be harmful to Mr. Jibben's condition).
 Amicus Brief (Epilepsy Foundation)
 Jibben decision

 

Employment - Blanket Exclusion Policies

Equal Employment Opportunity Commission v. Overnite Transportation Company, 2006 WL 2594479 (S.D. Ohio 2006)
EEOC alleged in its complaint and motion for summary judgment against Overnite that the company follows a blanket policy that excludes persons with epilepsy and/or diabetes without individually assessing an individual's ability to perform the essential functions of the job with or without reasonable accommodation. The Commission filed its suit on behalf of two individuals with epilepsy who sought positions with Overnite as dockworkers.  The court issued a decision denying the defendant's motion for summary judgment, finding that the individuals on whose behalf the action was filed may have been screened out from the dock worker position without adequate consideration as to whether they posed a direct threat. The court concluded that the employer has the burden of demonstrating there is a direct threat, and that Overnite had not clearly done so.

EEOC v. Northwest Airlines, No. 1-705 MJD/JGL (D. Minn. Dec. 30, 2004)
In 2004, the EEOC reached a favorable settlement with Northwest Airlines in a case challenging a similar exclusion policy.  In this case, the U.S. Equal Employment Opportunity Commission and Northwest Airlines, Inc. reached a settlement of a lawsuit under the ADA which will ensure that persons with epilepsy (and insulin-dependent diabetes) who apply for various positions with the airline will not be unfairly denied those positions.

Northwest had allegedly relied on a company-wide policy of automatically disqualifying applicants for positions of cleaners or equipment service employees if they had seizure-related disorders or other disabilities that pose a risk of loss of consciousness, no matter how remote the risk was. A key element of the agreement is that Northwest will conduct an individualized assessment of the current ability of persons to safely perform these positions, with or without reasonable accommodation. Northwest will also provide a settlement fund of $510,000 for distribution among 28 individuals for whom the EEOC was seeking relief.  The EEOC's brief argued that Northwest needed to abandon its zero tolerance policy -- that discriminated against persons with epilepsy and diabetes -- in favor of a policy of individualized assessment of an applicant's ability to perform the essential functions, with or without reasonable accommodations, of the position sought.

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