Recently, a panel of the U.S. 11th Circuit Court of Appeals—which covers Alabama, Florida, and Georgia—reversed an Americans with Disabilities Act (ADA) discrimination matter and sent it back for further proceedings to the district court that had dismissed it before trial.
The 11th Circuit’s language made it patently clear that it was displeased with a police department’s handling of what otherwise appeared to be a reasonable accommodation request—for a Detective with a heart condition to avoid being tased during training—bolstering the importance of carefully handling accommodation requests.
Given that the employee was terminated in 2010, the defense of the trial will prove to be extremely challenging for the employer, and the potential of reinstatement and back pay as remedies could turn what was just a spark into a full-blown blaze.
A female, African-American police detective with the Union City Police Department (UCPD) suffered what her doctors described as a “small” heart attack in 2009 and was cleared to work soon thereafter. During the summer of 2010, Ucpd changed its mandatory policy concerning nonlethal weapons from one where officers could select from OC Spray, a baton, or a Taser, to one in which only Tasers were permitted. Moreover, the UCPD Chief decided that everyone subject to the Taser policy had to be tased themselves—purportedly to understand the weapon’s effectiveness and limitations.
The detective, who would have been subject to the Taser policy, consulted with her physician. The physician wrote a letter to the UCPD explaining that the Taser’s electrical current could cause undue physical stress to the detective and therefore recommended that a Taser or OC spray not be used on or near her.
The UCPD immediately placed the detective on administrative leave without pay until she was “cleared to work,” suggested she could use her accrued paid time off (PTO) during the leave, and told her to fill out paper work for the Family and Medical Leave Act (FMLA), but it didn’t otherwise give her any deadlines or warnings.
She pleaded to no avail with her superiors for reinstatement because her condition only prevented her from being tased. She then asked for permission to work outside the department after the exhaustion of her PTO so she could support her family, but the UCPD denied her request, stating that it was illegal for her to work elsewhere while on FMLA leave. (The appeals court conspicuously noted that she was on administrative leave, not FMLA leave.)
The detective alerted UCPD that her doctor was on vacation until July 7, 2010, when she had an appointment to evaluate clearance and fill out the requested FMLA paperwork. Before the doctor was able to complete and send the FMLA paperwork, however, the UCPD terminated her on July 8, purportedly because she had exhausted her PTO—a decision the 11th Circuit described as “extraordinarily arbitrary.”
The detective sued for disability discrimination under the ADA, among other claims. The UCPD requested summary judgment (dismissal in its favor without trial) on all claims, and the district court granted its request. The detective appealed.
In reversing the district court, the 11th Circuit noted the following facts on which a jury could reasonably find that the termination was in fact unlawful:
- The detective was in constant communication with her supervisors up until the day of her termination.
- She was neither given deadlines to submit paperwork nor were there any in the department’s handbook policies.
- She was never officially placed on FMLA leave to justify the denial of a side job.
- She was never told that if she elected to use PTO while on leave, she would be terminated once her PTO expired.
- The UCPD’s actions strongly suggested that it took the adverse actions because it feared the consequences of her medical condition, thus regarding her as disabled.
- The department failed to show that getting tased was an “essential job function” for a detective because it wasn’t contained in the job description, previously there was no such requirements, and even the Taser manufacturer didn’t require being tased to get certified.
Without doubt, the 11th Circuit’s decision was motivated by the underlying facts. Indeed, it noted that the detective had “presented a mosaic of circumstantial evidence that [raised] a genuine issue of material fact” and otherwise had harsh words and criticism for the UCPD.
While not specifically referenced by the court, the most discernible employer error was the UCPD’s failure to engage in a dialog to clarify what the detective needed and then come up with a plan for a reasonable accommodation. The department unsuccessfully argued that it interpreted the physician’s letter to mean that she couldn’t be around Tasers or OC Spray at all. To the extent the letter could have realistically been interpreted in that manner, engaging in the ADA-required dialog would have clarified that she was only requesting not to be tased.
Further, the UCPD altogether failed to show that getting tased was an essential job function. The court noted that whether a function is essential is evaluated on a case-by-case basis on a number of factors, such as (a) job description, (b) the amount of time the employee spends on that function, (c) the consequences of not requiring her to perform that function, and (d) work experience of past and current employees in similar jobs. In this case, the department couldn’t meet that standard. Lewis v. City of Union City, 2017 U.S. App. LEXIS 25368*, 2017 WL 6397619 (11th Cir., Dec. 15, 2017).
It’s important to revisit and revise your job descriptions at least on a yearly basis to make sure that they accurately capture what’s essential to a position and evolve with the times.
Likewise, you should check your policies to ensure that they contain clear language about when and how to apply for leave and any negative consequences of noncompliance. Too many employers are under the false impression that handbooks and policies can’t be used against them because they include language stating, “This is not a contract and may be modified (whenever).”
This case proves that handbooks and policies can and will be used against you—if not to demand certain benefits under a quasi-contract theory, then to establish that noncompliance with your own policy can suggest discriminatory intent.
Finally and importantly, when making a termination decision based on a disability, you should consult your HR professional or employment counsel and have more than one decision maker involved. You should neither address ADA matters haphazardly nor overthink them. A case-by-case, common sense approach is generally sufficient to avoid the law’s pitfalls.
Glianny Fagundo, contributor to Georgia Employment Law Letter, can be reached at [email protected]
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