Court Rejects ADA Claim, But Allows FMLA Retaliation Allegation

Supervisor’s Alleged Threat Regarding Worker’s Job Security May Prove To Be Costly

In a case that addresses the “regarded as disabled” provision under the Americans with Disabilities Act (ADA), a federal appellate court recently found that an employer’s failure to rehire an individual after layoff, based on the employee’s opiate-based prescription medication, did not violate the ADA. However, in an example of the overlap between the ADA and the Family and Medical Leave Act (FMLA), the court allowed the employee’s FMLA retaliation claim to proceed based on a manager’s alleged statements related to the employee’s medical leave. Daugherty v. Sajar Plastics, Inc., No. 05-02787, Sixth Circuit Court of Appeals (October 16, 2008).

Factual Background

James Daugherty worked for Sajar Plastics, Inc. (SPI) as a maintenance technician from 1991 until his layoff on January 5, 2004. In that capacity, he maintained buildings and equipment, often using hand and power tools, and operated certain heavy machinery (including forklifts and overhead cranes).

In 2000 and 2001, Daugherty suffered flare ups of a previous back injury. To manage the pain, Daugherty was prescribed increasing doses of Oxycontin and Duragesic, both opiate-based medications. Daugherty also requested, and was granted, intermittent FMLA leave during these periods of increased pain.

In November 2003, Daugherty requested a lengthy FMLA leave, and provided a doctor’s note stating that he would be able to return to work in January 2004. Daugherty claimed that the company’s HR Director, Ronald Alexander, told him at that time that if he took FMLA leave for that period of time, “there would not be a job waiting for [him] when [he] returned.”

Soon after Daugherty went on leave, SPI initiated a reduction in force. Because Daugherty was the least senior maintenance worker, it was decided that he would be laid off upon his return from FMLA leave. However, SPI soon thereafter experienced an increase in business and decided to recall Daugherty to work

Alexander made the rehire contingent upon passing a physical examination conducted by Dr. Richard Altemus, who was routinely used by the company for pre-employment physicals. While Dr. Altemus found Daugherty physically able to perform the functions of the position, he expressed concern about Daugherty’s medications, stating that “the analgesics may mask the symptoms of reinjury,” and “may cause an impairment of perception or judgment which might lead to an injury to himself or others.”

Based on these findings, SPI told Daugherty that if he could provide documentation regarding a “reduction in his medications” it would consider reemploying him. Daugherty failed to provide that documentation, even after repeated requests, and his employment ultimately was terminated.

Daugherty then filed a lawsuit alleging that he had been “regarded as” disabled by SPI and that the company violated the ADA when it failed to rehire him. Daugherty also claimed that his termination was in retaliation for taking FMLA leave. The trial judge dismissed the case, and Daugherty appealed to the Sixth Circuit Court of Appeals.

Legal Analysis

The Sixth Circuit found that SPI’s decision regarding Daugherty’s employment did not violate the ADA. To support a regarded as disabled claim, the court noted, an employee must demonstrate that the employer regarded him as unable to perform a broad class or range of jobs. According to the Sixth Circuit, because Daugherty’s medication restricted him only from the maintenance technician positions at SPI, the evidence was not sufficient to support his regarded as disabled claim under the ADA.

The Sixth Circuit reinstated Daugherty’s FMLA claim, however. The court held that Daugherty presented “direct evidence” of discrimination in the form of Alexander’s threat that the FMLA leave would affect Daugherty’s continued employment.

In reaching this conclusion, the Sixth Circuit wrote: “Clearly, this unambiguous comment, which we must take as true at the summary judgment stage, constitutes direct evidence that Daugherty’s termination was motivated by unlawful, discriminatory animus. Alexander was Daugherty’s immediate supervisor and a decision maker
at [SPI]. A fact finder would not be required to draw any inferences to determine that Alexander retaliated against Daugherty when Alexander explicitly threatened such retaliation and the threat – that Daugherty would not have a job waiting for him when he returned from leave – was realized.” As a result, the court reinstated Daugherty’s FMLA retaliation claim.

Practical Impact

According to Maria Danaher, a shareholder in the Pittsburgh office of Ogletree Deakins: “As the number of cases filed under the `regarded as’ provision of the ADA continues to increase, it is imperative for employers to be familiar with the standard of proof required to overcome that claim.”

Danaher continued: “In this case, the fact that the company was willing to continue to employ the individual if he was able to work with his physician to decrease the amount of his opiate-based medication indicated a perception on the part of the company that Daugherty was able to be employed in some capacity and, therefore, precluded a claim that the company was excluding Daugherty from a broad range of employment positions. In this case, SPI’s effort to find a mutually beneficial resolution to the issue – while unsuccessful – had the ultimate effect of helping the company to avoid liability under the ADA.”

Note: This article was published in the November/December 2008 issue of The Employment Law Authority.