December 18, 2017

Tenth Circuit: Honest Belief Doctrine Allows Employee to Challenge Honesty of Employer’s Stated Reason for Termination

The Tenth Circuit Court of Appeals issued its opinion in Dewitt v. Southwestern Bell Telephone Company on Wednesday, January 18, 2017.

After her employment was terminated by Southwestern Bell Telephone Company (SWBTC) in 2010, Janna Dewitt filed a lawsuit against her former employer claiming unlawful discrimination and failure to accommodate her disability in violation of the American Disability Act, as well as a retaliation claim in violation of the Family Medical Leave Act (FMLA). The district court granted summary judgment in favor of SWBTC on all three claims, and Dewitt appealed.

Dewitt worked as a customer service representative in the call center of SWBTC. When Dewitt was hired she disclosed her diagnosis of Type I diabetes to her employer, who allowed her to take breaks as needed to eat and check her insulin levels. During Dewitt’s employment she took FMLA leave occasionally for health reasons, but generally avoided taking FMLA leave as it was looked upon unfavorably by SWBTC. After Dewitt violated SWBTC’s company policy for a second time by hanging up on two customers, SWBTC initiated a review and ultimately terminated Dewitt. Dewitt contends that she does not recall hanging up on the customers, as she was experiencing dangerously low blood sugar levels.

The court applied the burden-shifting framework first laid out in McDonnell-Douglas Corp. v. Green, which articulates a three-prong test for evaluating employment claims: (1) the claimant must show a prima facie case of retaliation or discrimination; (2) if the claimant presents a prima facie case, then if the employer can show a legitimate non-discriminatory reason for the action against the employee, the burden shifts back to the claimant to show that (3) there is a genuine issue of material fact as to if the employer’s reason for the action was merely pretext.

As to Dewitt’s first claim that SWBTC terminated her because of her disability, the court affirms the district court’s grant of summary judgment. The court looked to SWBTC’s process in evaluating the hang-ups, and stated that SWBTC’s termination was made based on their honest belief and in good faith due to Dewitt’s conduct, not because of her disability. Dewitt requests that the court decline to apply the honest belief doctrine, claiming that it “eviscerates the third prong of the McDonnell-Douglas test.” The court declines to do so, stating that the honest belief doctrine works to allow the employee to challenge the honesty of the employer’s stated reasoning for the action against the employee.

Next, Dewitt claims that SWBTC failed to accommodate her disability by not excusing the dropped phone calls. The court affirms the grant of summary judgment as to this claim as well, stating that an employer is not required to retroactively accommodate a disability where the employee has not previously requested an accommodation, and Dewitt never raised the concern prior to the incident with SWBTC that her diabetes could cause her to drop calls. The court added that the Equal Employment Opportunity Commission’s own guidance refutes Dewitt’s claim that her past conduct should be overlooked, as the guidance states “an employer is not required to excuse past misconduct even if it is the result of the individual’s disability.”

Finally, regarding Dewitt’s third claim of retaliation by SWBTC against her for taking FMLA leave, the court also affirms the district court’s grant of summary judgment in favor of SWBTC. The court held that because SWBTC offered a legitimate reason for terminating Dewitt, her hanging up on customers, Dewitt was required to show that this reason was mere pretext for firing her due to her disability. While Dewitt offered testimony that FMLA leave was discouraged and another supervisor disliked her, neither witness was involved in her actual termination. Therefore, the court determined that Dewitt’s evidence did not sufficiently establish a question as to if SWBTC’s stated reason for terminating her was merely pretext to terminate her employment due to her disability.

The court affirmed the district court’s grant of summary judgment on all three of Dewitt’s employment claims.

HB 16-1438: Requiring Reasonable Employment Accommodations for Pregnancy-Related Conditions

On April 12, 2016, Rep. Faith Winter and Sen. Beth Martinez Humenik introduced HB 16-1438Concerning the Provision of Reasonable Accommodations by an Employer for Persons who have a Condition Related to Pregnancy. The bill was assigned to the House Health, Insurance, & Environment Committee.

Under this bill, an employer shall: (1) provide reasonable accommodations to perform the essential functions of the job to an applicant or employee for health conditions related to pregnancy; (2) not take adverse action against an employee who requests or uses a reasonable accommodation; (3) not deny employment opportunities based on the need to make reasonable accommodations; (4) not require an applicant or employee affected by pregnancy to accept an accommodation that the applicant or employee chooses not to accept; (5) not require an employee to take leave if the employer can provide another reasonable accommodation for the employee’s pregnancy; (6) engage in an interactive process with the employee to determine effective reasonable accommodations; and (7) post written notice in a conspicuous place accessible to employees of the right to be free from said discriminatory or unfair employment practices. It is a discriminatory or unfair employment practice if an employer fails to comply with the provisions of this bill.

The bill defines “reasonable accommodations” by providing a non-exhaustive list of possible changes to an employee’s daily activity, but then states that an employer is not required to do any of the following: (1) hire new employees; (2) discharge an employee, transfer a senior employee, or promote an unqualified employee; (3) create a new position; or (4) provide paid leave beyond that which is provided to similarly situated employees.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1426: Criminalizing Intentional Misrepresentation of a Service Animal

On March 30, 2016, Reps. Dianne Primavera & Yeulin Willett introduced HB 16-1426Concerning Intentional Misrepresentation of Entitlement to an Assistance Animal. The bill was assigned to the House Public Health Care & Human Services Committee, where it was amended and referred to the House Committee of the Whole for Second Reading.

Federal law requires that reasonable accommodations be provided under some circumstances to individuals with a disability, and that certain housing providers must allow an individual with a disability to reside with his or her assistance animal without charging any fees or imposing conditions that would otherwise apply if the animal were merely a pet. This bill defines “assistance animal” as an animal, other than a service animal – as defined by the Americans with Disabilities Act – that qualifies for a reasonable accommodation under the federal Fair Housing Act or the Rehabilitation Act of 1973.

The bill requires the following medical professionals, when approached by a patient seeking an assistance animal, to either make a written finding regarding whether the patient has a disability (and if so, whether the need for the animal is related to that disability), or make a written finding that there is insufficient evidence to make a disability determination: (1) physicians, physician assistants, and anesthesiologist assistants (pursuant to section 1 of the bill); (2) nurses (pursuant to section 2 of the bill); and (3) psychologists, social workers, clinical social workers, marriage and family therapists, licensed professional counselors, and addiction counselors (pursuant to section 3 of the bill). A medical professional shall not make a disability determination unless the medical professional: (1) meets with the patient in person or by telephone; (2) is sufficiently familiar with the patient and the disability; and (3) is legally and professionally qualified to make the determination.

The bill creates the class 1 petty offense of intentional misrepresentation of entitlement to an assistance animal, which is committed if (1) a person intentionally misrepresents an animal in his or her possession as an assistance animal for the purpose of obtaining any of the rights or privileges granted by law to persons with disabilities; and (2) the person knows that the animal is question is not a an assistance animal with regard to that person, or the person does not have a disability. A written disability determination made pursuant to the bill is an affirmative defense to the offense established by the bill, while a lack of such a finding is not proof that the offense occurred. If convicted, the defendant must pay: $350-$1,000 for a first offense; $600-$1,000 for a second offense; and $1,000-$5,000 plus community service for a third offense.

A district court may order the conviction record sealed if: (1) the defendant files a petition and pays the filing fee; (2) the defendant’s first offense was at least three years prior to filing the petition; and (3) the defendant has not had a subsequent conviction for the offense.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Colorado Court of Appeals: Ample Record Evidence Supported Finding that Job Function Not Essential

The Colorado Court of Appeals issued its opinion in Department of Human Services v. State Personnel Board on Thursday, March 10, 2016.

Essential Functions of a Job—Offset for Disability Benefits.

Brown served as an admissions psychiatric liaison at the Colorado Mental Health Institute at Pueblo (CMHIP). In June 2011, Brown began to experience health problems related to a work-related injury sustained at CMHIP. Her treating physician assigned work restrictions, which included not participating in physical intervention techniques (CTI and CPR). CTI and CPR were about 10% of her work duties, but were rarely used. In January 2012 she was assigned additional work restrictions.

Her modified duty ended on February 29, 2012 and she was denied her application for short-term disability benefits. She submitted to the Department of Human Services, Colorado Mental Health Institute (DHS) a request for reasonable accommodation under the Americans with Disabilities Act (ADA), which included an exemption from CMHIP’s requirement that she be prepared to use CTI and CPR. This request was also denied. In June 2012 she was discharged.

Brown sought review of her administrative separation and the administrative law judge (ALJ) affirmed the decision, finding that it was not arbitrary, capricious, or contrary to rule or law. Brown appealed, and the State Personnel Board (Board) adopted the findings of fact but reversed the legal conclusion that DHS’s action was not arbitrary, capricious, or contrary to rule or law. The Board found that CTI and CPR were not essential functions of her position, and ordered her reinstated and awarded back pay and benefits. On remand, the ALJ awarded back pay and benefits from the date of separation to the date of the Board’s reversal, but also concluded that her Public Employees’ Retirement Association (PERA) disability retirement and unemployment benefits must be offset from back pay and benefits.

On appeal, the Board affirmed the award of back pay and benefits but reversed the offset to the award for Brown’s PERA and disability retirement benefits, finding that disability benefits under PERA are collateral and cannot be offset.

On appeal, DHS argued that the Board erred in reversing the ALJ’s legal conclusion that DHS’s employment decision was not arbitrary, capricious, or contrary to rule or law. The Court of Appeals found no error. There was no dispute that Brown was disabled under the ADA, so the only question was whether she could perform the essential functions of her job with or without a reasonable accommodation. The Court found there was no error in the Board’s determination based on the evidentiary record that CTI and CPR were not essential functions of her position.

DHS then argued that it was error for the Board to reverse the ALJ’s conclusion regarding the PERA offsets. The Court found no error.

CRS § 13-21-111.6 allows full recovery for an employee when she has received compensation from a collateral source “as a result of a contract entered into and paid for by or on behalf of such person.” In an issue of first impression, the Court found that PERA disability benefits constitute such a collateral source not required to be offset from a damage award.

The Board’s orders were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: After Employee Proposes ADA Accommodations, Burden Shifts to Employer to Show Undue Hardship

The Tenth Circuit Court of Appeals issued its opinion in Osborne v. Baxter Healthcare Corp. on Monday, August 24, 2015.

Kelly Osborne, who is deaf, applied for a job as a plasma center technician (PCT) at BioLife Plasma Services. After two interviews, she was conditionally offered the job pending final tests and paperwork. BioLife’s human resources division reviewed her paperwork and determined she could not perform essential functions of the PCT job because she was deaf and would not be able to hear the alarm on the plasmaphoresis machine or hear clients calling for help. When Ms. Osborne showed up for work on her first day, Joe Elder, the manager, told her BioLife had rescinded her offer of employment. Ms. Osborne filed suit, arguing that BioLife’s revocation of the job offer violated the Americans with Disabilities Act. The district court granted summary judgment to BioLife and ordered each side to pay its own fees and costs. Both parties appealed.

The Tenth Circuit found material disputes of fact as to whether the accommodations Ms. Osborne proposed would be reasonable for BioLife and concluded summary judgment was inappropriate. The Tenth Circuit evaluated the three factors to present a prima facie case of discrimination under the ADA: (1) whether the employee is disabled within the meaning of the ADA, (2) whether the employee is qualified, with or without reasonable accommodation, to perform the essential functions of the job, and (3) whether the employee was discriminated against because of his or her disability. Because there was no dispute that Ms. Osborne met the first and third factors, the Tenth Circuit evaluated only the second—whether she would be able to perform essential functions of the job with or without reasonable accommodation. Ms. Osborne proposed adding lights to the plasmaphoresis machine in addition to the alarm sound and giving clients call buttons. Ms. Osborne argued her proposed accommodations were reasonable on their face and the burden should have shifted to BioLife to show that it was unable to provide the accommodations without undue hardship. The Tenth Circuit agreed, finding that summary judgment was precluded because genuine issues of material fact existed regarding whether BioLife could provide the accommodations. Because the Tenth Circuit found that summary judgment was inappropriate, BioLife’s appeal of the cost determination was moot.

The Tenth Circuit reversed the district court’s grant of summary judgment and remanded for further proceedings.