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LEGAL UPDATE: RECENT DEVELOPMENTS UNDER THE AMERICANS WITH DISABILITIES ACT

American Public Transportation Association2013 Risk Management Seminar

Monday, June 10, 2013


Presenter

CHARLES M. ROESCHDINSMORE & SHOHL LLP255 East Fifth St., Suite 1900Cincinnati, Ohio [email protected](513) 977-8200

mailto:[email protected]


Transportation-Related ADA Updates


One-Handed School Bus Trainee Qualified

Rosebrough v. Buckeye Valley High School, Case No. 10-4057 (6th Cir. August 8, 2012): One-Handed Trainee Bus Driver fired by School District for

allegedly failing to meet the essential functions of the prospective job by acquiring a Commercial Driver’s License (“CDL”).

6th Circuit reversed summary judgment for Defendant because ADA covers discrimination during job training as well as employment.

Trainee “otherwise qualified” without CDL where the purpose of the trainee program is to help obtain a CDL.

Remanded for further analysis of Plaintiff’s prima facie case.


One-Handed School Bus Trainee Qualified

Subsequent History: Rosebrough v. Buckeye Valley High Sch., 2013 U.S. Dist. LEXIS

23041 (S.D. Ohio Feb. 20, 2013):

Summary Judgment for Defendant School District.

Plaintiff failed to prove an adverse employment action occurred where:Defendant had asked Plaintiff to become a trainee;Trained her; andWas prepared to administer the certification test as soon as it

could be conducted.


Bus Driver’s Perceived Disability Gulley-Falzgraf v. Cherry Creek Sch. Dist. No. 5, 2013 U.S. Dist.

LEXIS 45574 (D. Colo. Mar. 29, 2013) :

Plaintiff brought a “Perceived Disability” claim against Employer School Board after being terminated for failing DOT certification exam.

Denial of Defendant’s Motion for Summary Judgment where factual question remained as to whether bus driver was a “qualified individual”.

Bus driver failed DOT certification administered by physician hired by the School Board, but passed certification administered by her personal physician.


Bus Driver’s Perceived Disability Gulley-Falzgraf v. Cherry Creek Sch. Dist. No. 5, 2013 U.S. Dist.

LEXIS 45574 (D. Colo. Mar. 29, 2013):

Court found evidence that a reasonable juror could find that School Board switched physician evaluators to discriminate against disabled drivers.

Court also found the approval process where school board’s contracted physician requested approval from Defendant’s manager of safety and training to issue certifications could constitute disability discrimination.

Plaintiff was permitted to proceed with her claim


Blanket DOT Medical Test Violates ADA

Nichols v. City of Mitchell, 2012 U.S. Dist. LEXIS 161426 (D.S.D. Nov. 9, 2012):

Three former city bus drivers terminated after failing to pass DOT medical certification exam alleged city’s blanket policy requiring drivers to comply with federal safety rules for interstate drivers violated the ADA.

US District Court for the District of South Dakota held that the City’s blanket policy violated the ADA’s prohibition against medical exams inquiring into employees’ disabilities.

Court granted partial summary judgment for Plaintiffs.


Blanket DOT Medical Test Violates ADA

In discussing medical examinations under the ADA, the Nichols Court found:

Medical exams such as the one at issue were permissible; and

Employer must make an individualized assessment of job-relatedness and business necessity; and

Employer must have significant evidence that employee may be unable to continue performing the duties of employment; and

Exam must not be more intrusive than necessary.


DeCamp Bus Line Settlement

On May 29, 2013 Assistant Attorney General and DeCamp Bus Lines entered into a three year settlement agreement:

DeCamp is an over-the-road bus operator with 100% of its fleet readily accessible to, and usable by, individuals with disabilities, including those in wheelchairs.

DeCamp’s website, bus route information, and customer representatives required individuals with disabilities to provide notice 48 hours prior to requested service.

As of October 29, 2012 large, fixed-route OTRB systems may no longer require 48 hour advance notice to provide accessible service.


DeCamp Bus Line Settlement

As part of the Settlement Agreement DeCamp agreed to:

Remove all references to the 48 hour notice from its website within thirty (30) days;

Within 60 days of settlement, no longer post, distribute, or publish any bus schedules, or written materials requiring notice; and

Train all employees and contractors on ADA requirements for the next three years.


More Accessible Taxis

Noel v. New York City Taxi & Limousine Comm'n., 687 F.3d 63 (2d Cir. N.Y. 2012):

Plaintiffs, two individuals who use wheelchairs and several advocacy groups, alleged that the Taxi and Limousine Commission (“TLC”) failed to provide meaningful access to persons with disabilities in violation of the ADA.

TLC is responsible for issuing all taxi licenses, or medallions, to all individuals operating taxis in New York City.

Lower court granted Summary Judgment for Plaintiffs and issued temporary injunction on issuing medallions to any non-accessible taxi.

Noel Court reversed summary judgment for Plaintiffs, lifted Temporary Injunction, and remanded with direction for lower court to enter summary judgment for Defendants.


More Accessible Taxis

Defendants were not required by ADA Title II(A) to deploy their licensing and regulatory authority to mandate meaningful access to taxis because:

Statute governing the conduct of a public entity administering a licensing program does not address Plaintiff’s grievances;

Licensing program did not discriminate as none of the medallions issued by the TLC prohibited any medallion owner from operating an accessible taxi;

Control over the taxi industry does not make the private taxi industry a "program or activity" of a public entity; and

ADA does not require a licensing entity to use its regulatory power to coerce compliance by a private industry.


General ADA Updates


Flexible Start Time As Accommodation Valle-Arce v. Puerto Rico Port Authority, 651 F.3d 190

(1st Cir. 2011):

Human resources employee sought flexible work schedule for her chronic fatigue syndrome.

Trial court granted judgment to employer because employee not a qualified individual where regular attendance was an essential job function.


Flexible Start Time As Accommodation

First Circuit reversed lower court:

Jury could find that the proposed accommodation of a flexible start time would have allowed Plaintiff to fulfill the essential function of attendance.


Relief From Rotating Shift as Accommodation

Kallail v. Alliant Energy Corp. Servs., Inc., Case No. 11-2202 (8th Cir. Sept. 4, 2012):

Diabetic Employee sought an exception to the Employer’s shift rotation policy, after her physician advised that rotating shifts led to “erratic changes” in her blood sugar.

Employer argued the rotating shift was an essential function because it provided enhanced experience and training.


Relief From Rotating Shift as Accommodation

Eighth Circuit found rotating shift constituted an essential job function where:

Employer listed rotating shift as a requirement in written job description.

Evidence existed that rotating shift allows for greater experience across geographic and service areas.

Granting the accommodation would place an additional burden on all co-workers.


Disabled Employee’s Full Release In October, 2011, the EEOC and TIC Industries, a Wyoming

Company, settled a disability discrimination claim for $135,000.

Employee sought to return to work after an amputation, but was allegedly required to provide medical documentation that he could perform his duties "without medical restrictions."

Company failed to engage in good faith interactive process which was tantamount to refusing to grant or even consider a reasonable accommodation.


Leave as Reasonable Accommodation

In June, 2011, the EEOC conducted public hearings regarding leave as a reasonable accommodation

EEOC maintains that "appropriate leave" under the ADA requires an individualized assessment even when the employer appears to provide generous leave.

Separating an employer’s leave administration function from its ADA decision maker can be very risky.

Employers must engage in the interactive process.


Requests for Employee Counseling Kroll v. White Lake Ambulance Auth., 691 F.3d 809 (6th Cir. Mich.

2012):

Emergency Medical Technician brought suit after being terminated for failing to attend counseling after screaming at a co-worker.

Plaintiff Employee alleged that required counseling constituted either:A medical examination; orUnlawful inquiry not shown to be job related or consistent with

business necessity.

6th Circuit determined that summary judgment for Defendant was improper where the lower court decided that counseling was categorically not a medical examination.


Requests for Employee Counseling

Employee’ s psychological counseling constituted a medical examination under the ADA because the counseling in question was likely to explore whether she suffered from a mental-health disability, regardless of whether that was defendant's intention.

Case remanded to determine: “if such counseling was job related and consistent with business necessity”.


Relapsed Alcoholics’ Drug Tests

Sechler v. Modular Space Corp., 2012 U.S. Dist. LEXIS 54478 (S.D. Tex. Apr. 18, 2012):

Relapsed Alcoholic terminated after refusing an alcohol and drug test in violation of a Last Chance Agreement sued his former employer alleging discrimination and failure to accommodate under the ADA.

Last Change Agreement required employee to submit to at-will drug and alcohol screenings on two hours notice.


Relapsed Alcoholics’ Drug Tests

Court granted summary judgment to Defendant, holding that Agreement did not constitute pre-text for discrimination:Such agreements, without more, are not pre-

textual.

Court granted summary judgment to Defendant, on failure to accommodate claim:Employer had previously granted an accommodation

of a leave for employee to attend treatment.


Fragrance-Free Environment as Reasonable Accommodation

Core v. Champaign County Board of Commissioners, 2012 U.S. Dist. 3:11-cv-00166 (S.D. Ohio 2012):

Plaintiff, county worker with fragrance induced asthma, claimed former employer failed to reasonably accommodate her disability.

Employer offered to bar co-workers from wearing fragrances that triggered Plaintiff’s asthmatic condition.

Plaintiff refused the accommodation and requested to work from home.


Fragrance-Free Environment as Reasonable Accommodation

Court granted Summary Judgment to the Defendant.

Under Pre-Amendment ADA, fragrance induced asthma is not a disability; could possibly be one under ADAAA.

But, Summary Judgment was appropriate where it was objectively unreasonable to create a “fragrance free” environment and Plaintiff could not complete all work from home.


Essential Functions with Accommodation

Otto v. Victoria, 685 F.3d 755 (8th Cir. 2012):

Plaintiff, city worker with history of back problems claimed former employer failed to reasonably accommodate disability.

Plaintiff requested to work in sedentary position for four hours a day and with no heavy lifting.


Essential Functions with Accommodation

Plaintiff was later terminated because no sedentary positions were available.

Court granted Summary Judgment for City.

None of Plaintiff’s proposed accommodations were reasonable because the ADA does not require the employer to create a new position or to eliminate essential functions of an existing job.


Accommodating Commutes

Regan v. Faurecia Auto Seating, Inc., 679 F.3d 475 (6th Cir. 2012):

Plaintiff suffering from narcolepsy alleged violations of the ADA for failing to modify her work schedule to accommodate her commute.

Court affirmed grant of Summary Judgment for employer.

6th Circuit joined other courts in holding that the ADA does not require an employer to accommodate an employee’s commute.


ADA Claims and SSI Applications

EEOC v. Greater Baltimore Medical Center, Inc., 2012 U.S. App. LEXIS 7851 (4th Cir. 2012):

4th Circuit affirmed US District Court’s grant of summary judgment in favor of employer in EEOC enforcement action under ADA.

An employee may seek SSI benefits and simultaneously assert “qualified individual” status if there is no genuine conflict between the two positions.


ADA Claims and SSI Applications

Facts of this case demonstrated a conflict between positions.

Employee received disability benefits based on representations of total disability while providing work releases from his doctor to his employer.

Employee failed to notify Social Security Administration that his condition had improved.


Indefinite Relief from Essential Functions

Robert v. Board of County Commissioners of Brown County, 2012 U.S. App. LEXIS 18365 (10th Cir. 2012):

Plaintiff, supervisor of released adult offenders, suffering from sacroiliac joint dysfunction alleged disability discrimination after she was terminated after exhausting FMLA leave and remaining unable to perform the essential functions of the job.

Court affirmed grant of Summary Judgment for employer.


Indefinite Relief from Essential Functions

Plaintiff was not a “qualified individual” where her condition prevented her from visiting offenders in their homes.

The only accommodation that would allow Plaintiff to perform the essential functions of her position was an indefinite reprieve of her job’s functions.

An indefinite reprieve of an essential function is unreasonable as a matter of law.


Vacant Positions

EEOC v. United Airlines, Inc., 693 F.3d 760 (7th Cir. Ill. 2012):

Plaintiff EEOC alleged defendant airline's competitive interview process policy violated the Americans with Disabilities Act.

7th Circuit reversed lower court’s dismissal of Plaintiff’s case,

rejecting the competitive interview process.


Vacant Positions

“The ADA does indeed mandate that an employer appoint employees with disabilities to a vacant position for which they are qualified, provided that such accommodations would be ordinarily reasonable and will not present an undue hardship on the employer”.

Adhering to disability-neutral rules, such as objective evaluation is not a sufficient accommodation for the disabled person provided they are qualified for the position.


Telecommuting

EEOC’s 2009 guidance suggests that under the ADAAA telecommuting may constitute a reasonable accommodation.

Employers who allow telecommuting for non-disabled employees may face allegations that telecommuting is reasonable for disabled employees.

In denying telecommuting, employers should emphasize essential job functions that cannot be effectively performed remotely from home, such as supervision and customer interaction.

© 2013 dinsmore & shohl | legal counsel | legal update: recent developments under the...

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