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Quick Hits
- A deaf former ramp agent’s inability to effectively communicate posed a “direct threat” to the safety of himself and others, providing a “legitimate, nondiscriminatory reason” for his employer’s decision to discharge him, the U.S. District Court for the District of North Dakota ruled.
- Otherwise qualified disabled employees who pose a “‘direct threat’ to the health or safety of others [do] not fall within the discrimination protections of the ADA,” the court stated.
- Employers may want to consider training hiring managers regarding legal inquiries they can make during and after the hiring process to ensure employees with self-disclosed disabilities can safely perform the essential functions of their jobs.
In Zimmerman v. SkyWest Airlines, Inc., the former employee brought claims of failure to accommodate, disability discrimination, and retaliation under the Americans with Disabilities Act (ADA) and the North Dakota Human Rights Act (NDHRA). The court found that the employer had a “legitimate, nondiscriminatory reason” to dismiss the employee because he could not effectively communicate while performing his safety-sensitive job, which required working on an airport tarmac where airplanes taxi, pull up to gates, or head out to the runway.
Background
David Zimmerman was hired by SkyWest in September 2019 as a part-time ramp agent. As a ramp agent, Zimmerman was responsible for “operating portable radio or headphones, driving and operating motorized equipment, and using signaling devices to communicate with co-workers or flight crew.” On his employment application, Zimmerman disclosed that he is deaf, and stated that “the only accommodation he needed was closed captioning for computer-based training classes” offered by SkyWest. After successful completion of training, SkyWest’s Employee Relations Department learned of Zimmerman’s accommodation request, and inquired about his hearing capabilities. Zimmerman stated that even with his hearing aids, he relied on lip-reading to understand verbal communication. Zimmerman further divulged that he removed his hearing aids while working on the tarmac. At that point, the department requested Zimmerman to provide information from his healthcare provider about his condition and what accommodations he might need to safely perform the essential functions of a ramp agent.
Zimmerman submitted a form he had completed, which stated that the only accommodations he needed were closed captioning and hand signals. The department asked Zimmerman to provide a form completed by his healthcare provider. His healthcare provider submitted a form that indicated that he “could perform all the essential functions of his job with hand signals and closed captioning,” but that “face-to-face communication was necessary to effectively communicate with Zimmerman.”
During Zimmerman’s employment safety concerns arose related to his inability to communicate with his coworkers, as he “was unable to hear anything” when aircraft auxiliary power units were activated. As a result, Zimmerman had a near miss with his supervisor, where he almost backed over her with a belt loader. Following that incident, the department requested that Zimmerman provide additional medical information regarding his condition from his audiologist.
Zimmerman’s audiologist recommended that SkyWest “allow for communication to take place in a well-lit environment and in a reasonably quiet setting to improve upon communicative abilities.” Based on this recommendation, “and the fact that ramp agents work in noisy and often dark environments,” the department was concerned that “having Zimmerman continue to work as a ramp agent posed a significant safety risk to himself and other employees.” As a result, SkyWest placed Zimmerman on paid administrative leave for thirty days to give him time to apply for another job at SkyWest. Zimmerman declined to look for another position. SkyWest offered him a comparable position as a gate agent, which he also declined. SkyWest, thereafter, extended his administrative leave an additional thirty days.
During his extended leave, Zimmerman’s audiologist provided information that Zimmerman had a new program installed on his hearing aids to reduce feedback. However, this did not resolve SkyWest’s safety concerns. After Zimmerman continued to decline to look for other positions, SkyWest terminated his employment.
Zimmerman sued SkyWest under the ADA and NDHRA alleging disability discrimination, failure to accommodate, and retaliation. SkyWest prevailed on all claims.
The Court’s Decision
On Zimmerman’s disability discrimination claim, there was no dispute that Zimmerman was disabled or that he had suffered an adverse employment action. However, the court determined that there was a question of fact as to whether Zimmerman was a “qualified individual” under the ADA. Zimmerman admitted that “he was unable to operate a portable radio to communicate with others,” which was a requirement of the ramp agent position. He further acknowledged the safety incident with his supervisor, where he nearly backed over her with a belt loader because he could not hear her. However, because SkyWest knew that Zimmerman was deaf when it hired him as a ramp agent, and Zimmerman performed his duties as a ramp agent, albeit briefly, the court concluded there was a genuine issue of material fact preventing summary judgment on these grounds.
But that was not end of the court’s inquiry on Zimmerman’s disability discrimination claim. The court concluded that Zimmerman posed a “direct threat” and granted summary judgment on those grounds. SkyWest had properly “conducted an individualized assessment of Zimmerman’s ability to safely perform the essential functions of a ramp agent,” which included gathering and relying on medical information. SkyWest properly determined there was a direct threat, given the “continuous and indefinite” duration of the risk, the significant “nature and severity of the potential harm” in light of the “fast-paced environment with heavy machinery,” the likelihood of potential harm based on the near-miss, and the imminent nature of the potential harm given the daily nature of tarmac work for ramp agents.
On Zimmerman’s failure to accommodate claim, the court rejected Zimmerman’s argument that SkyWest did not properly engage in the interactive process. The court noted that SkyWest reasonably accommodated Zimmerman by offering him a gate agent position with the “same location, hours, and rate of pay.” That position would have allowed Zimmerman to work in the type of environment recommended by his audiologist. The court concluded that Zimmerman’s decision to decline the reassignment was fatal to his failure to accommodate claim.
In his retaliation claim, Zimmerman alleged two adverse actions: (1) SkyWest’s decision to further investigate his hearing disability and (2) his termination of employment. The court concluded the further investigation into his disability was not an adverse action, noting that employers may make job-related medical inquiries, provided they are consistent with business necessity. Here, the court found the inquiry was both lawful and required, based on the facts. As to his termination of employment, the court concluded there was “a break in the causal connection between the adverse action and the protected activity,” after he declined the reassignment. The court further stated that even if there was an adequate causal connection, SkyWest had a “legitimate, nondiscriminatory reason to terminate his employment because he posed a direct threat to the safety of himself and others.”
Key Takeaways
There are several takeaways from this decision. First, employers may want to consider training hiring managers regarding legal inquiries they can make during and after the hiring process to ensure employees with self-disclosed disabilities can safely perform the essential functions of the job. Second, when faced with a direct threat scenario, employers may want to consider whether there are comparable positions the employee may safely perform. Here, the court was persuaded by SkyWest’s offer of a comparable position to Zimmerman, which he declined. Finally, when presented with a potential direct threat, employers may want to consider an individualized assessment, in tandem with healthcare providers, to make a reasoned and informed decision.
Ogletree Deakins will continue to monitor developments and will publish updates on the Leaves of Absence, North Dakota, and Workplace Safety and Health blogs as additional information becomes available.
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