Summary Judgment Hurdles (Continued from page 8)
label of the disability but rather, how the impairment affects the individual’s major life activities. Only the very first prong of this definition, the “actual disability” prong, allows the plaintiff complete con- trol over establishing the disability. It is the plaintiff, his family and his doctor who have the most intimate familiarity with the nature of the plaintiff ’s impairments and how they affect him on a day-to-day basis. Focusing, therefore, on the major life activities is the first step to ensuring that your plaintiff is covered by the ADA. Promptly obtain the plaintiff ’s medical records and focus on how his impairments affect his major life activities. Unless your plaintiff is deaf, blind, or in a wheelchair, plan to use an expert witness to assist in establishing how the impairments sub- stantially limit his major life activities. A treating physician or one with expertise in the field who has examined your plaintiff and his medical records, is the best expert to assist you in this regard. One word of caution when proceeding
under the ADA’s “actual disability” prong. The decisions, most of them unpublished, make clear that our courts are not recep- tive to mental impairments. The decisions have not focused particularly on whether
the mental impairment actually consti- tutes a disability. Instead, the analysis proceeds straight to the essential functions component, determining either that the plaintiff cannot perform the essential functions,9 10
misconduct in the workplace, justifying termination.11
or that he has engaged in Bottom line – plaintiff los-
es. If your plaintiff, however, is “regarded as” having a mental impairment, but in fact, no manifestations of the disability exist, your chances of success increase.
Use “Record Of” And “Regarded As” Only When “Actual Disability” Does Not Apply
How do you handle your relatively asymptomatic clients who have a recent diagnosis such as cancer, hepatitis C, or
9
Darcangelo v. Verizon Maryland, Inc., 189 Fed. Appx. 217 (4th
Cir. 2006)(unpublishe
d)(termination of bipolar office technician lawful, as she was unable to perform essen- tial functions of job due to her threatening, harassing, abusive behavior in workplace)
10
Burke v. Commonwealth of Va., 114 F.3d 1175 (4th
Cir. 1997)(plaintiff ’s attention
deficit hyperactivity disorder and dyslexia, resulting in his repeated inability to pass correctional officer test, rendered him un- qualified for position)
Experienced. Credible. Responsive.
• DAMAGES • BUSINESS VALUATIONS • FORENSIC ACCOUNTING • LAW FIRM MANAGEMENT
“Providing Quality Services In AChanging World Since 1946”
Providing Services to the Legal Profession and Their Clients
Ellin & Tucker Consultants Specialize in
multiple sclerosis, and who, following said diagnosis, now experience problems on the job? Because their impairments at first may be mild despite the serious diagnosis, you will have difficulty establishing sub- stantially limiting major life activities. Only when you cannot claim “actual dis- ability” should you move onto the “record of” and “regarded as” prongs. The second prong of the ADA definition of disability requires that the plaintiff have “a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.”12
The employer must have had
access to this evidence. To the extent your plaintiff is under medical care, obtain all doctors’ notes, requests for medical leave, communications between the plaintiff and the employer about the disability, and other evidence that could establish a “record of” disability. Closely related to the “record of” prong
is the “regarded as” prong. Unlike the “actual disability” prong which affords you complete control over establishing the plaintiff ’s disability, the success of the “regarded as” theory depends on how the employer perceives the plaintiff ’s impair- ment. A person is regarded as having a disability if he 1) has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation; 2) has a physical or mental impairment that substan- tially limits major life activities only as a result of the attitude of others toward such impairment.13
A supervisor’s remark that an em-
ployee needs to “be on disability” or an employer’s comments referring to a plain- tiff as “disabled” are probative evidence that the employer regarded the plaintiff as disabled.14
In Cline v. Wal-Mart,15
the plaintiff successfully established this “regarded as” prong when the employer demoted him from his supervisory posi- tion, based on its erroneous belief that his
(Continued on page 12) 11
Pence v. Tenneco Auto. Operating Co., Inc., 169 Fed.Appx. 808 (4th
Cir. 2006)(unpub
lished)(employer’s termination of employee with paranoia was lawful, based on good faith but mistaken belief that employee made death threats)
12 29 C.F.R §1630.2(k) Baltimore, MD 410-727-5735
www.etnet.com 10
Washington, D.C. 202-638-0902 Frederick, MD 301-696-1926 Belcamp, MD 410-272-1680
Trial Reporter 13 29 C.F.R. §1630.2(l)(1)-(2)
14 E.E.O.C. v. Town & Country Toyota, Inc., 7 Fed.Appx. 226 (4th lished)
15 144 F.3d 294, 299 (4th
Cir. 2001)(unpub- Cir. 1998)
Winter 2007
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64