Labor & Employment Law Daily After-acquired evidence showed technical writer was not ‘qualified individual’ under the ADA
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Tuesday, April 21, 2020

After-acquired evidence showed technical writer was not ‘qualified individual’ under the ADA

By Kathleen Kapusta, J.D.

The court held that under the two-step qualified individual test promulgated by the EEOC and embedded in its precedent, an individual who fails to satisfy the job prerequisites can’t be considered qualified under the ADA unless she shows the prerequisite was discriminatory.

A technical writer who did not have a required bachelor’s degree at the time she was fired—because she failed to submit a full work release at the end of her FMLA leave—was not a “qualified individual” under the ADA, the Ninth Circuit ruled, even though her employer did not discover that she lacked the degree until after it fired her. Rejecting the EEOC’s assertion, as amicus, that her lack of the degree was after-acquired evidence discovered well after the discriminatory adverse employment action and thus at most it could only limit liability, the court pointed out that “under the two-step qualified individual test promulgated by the EEOC and embedded in our precedent, ‘an individual who fails to satisfy the job prerequisites cannot be considered qualified within the meaning of the ADA unless she shows that the prerequisite is itself discriminatory in effect.’” Nor does the limitation on the use of after-acquired evidence in Supreme Court’s McKennon decision extend to evidence used to show an ADA plaintiff is not a qualified individual, said the court, affirming summary judgment against the employee’s claim (Anthony v. TRAX International Corp., April 17, 2020, Wardlaw, K.).

Hired as a technical writer in 2010 by TRAX, a contractor for the army, the employee had a history of post-traumatic stress disorder and related anxiety and depression. When her condition worsened in 2012, she took leave under the FMLA, which was extended for an additional 30 days. At that time, she was told that if she did not obtain a full work release at the end of her leave, she would be fired. When she failed to obtain the release, TRAX terminated her employment.

Bachelor’s degree requirement. She then sued under the ADA, alleging that TRAX fired her because of her disability and failed to engage in the interactive process. During litigation, TRAX discovered that, despite her representations on her employment application, she did not have a bachelor’s degree required for all Technical Writers. Under its government contract with the army, it could bill for technical writer work only if the writer had a bachelor’s degree.

Lower court proceedings. Both parties moved for summary judgment, and the district court, granting TRAX’s motion, held that because of the after-acquired evidence that she lacked the required bachelor’s degree when she was terminated, she was not a “qualified individual” within the protection of the ADA.

Two-step process. The ADA, observed the Ninth Circuit on appeal, protects only qualified individuals from employment discrimination. And while it defines a “qualified individual” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires,” the EEOC promulgated a regulation that expanded this definition and established a two-step inquiry for determining whether an individual is qualified.

Further, observed the court, under the EEOC’s Interpretive Guidance, at “the first step, this guidance asks us to ‘determine if the individual satisfies the prerequisites for the position, such as possessing the appropriate educational background, employment experience, skills, licenses, etc.’ We then go on to step two to ‘determine whether or not the individual can perform the essential functions of the position held or desired, with or without reasonable accommodation.’” And here, said the court, the employee did not satisfy these prerequisite steps. It was undisputed that she never possessed the required degree and that pursuant to TRAX’s contract with the government, it was an actual requirement of the position.

According to the EEOC, however, her lack of a bachelor’s degree was irrelevant to the termination decision and she could establish a prima facie case of disability discrimination by showing she could perform her job’s essential functions.

Ninth Circuit precedent. Rejecting this argument, the court pointed out that in its 2007 Bates v. United Parcel Serv., Inc., decision, it stated that under the ADA and the EEOC’s regulations, “[q]ualification for a position is a two-step inquiry,” beginning with “whether the individual satisfies the ‘requisite skill, experience, education and other job-related requirements’ of the position.” One year later, in Del. Valley Surgical Supply Inc. v. Johnson & Johnson, it held that “an individual who fails to satisfy the job prerequisites cannot be considered ‘qualified’ within the meaning of the ADA unless she shows that the prerequisite is itself discriminatory in effect.”

Limited? The employee argued that courts applying the two-step qualified individual test are limited to the facts the employer knew at the time of the challenged employment decision. The court, however, found that while the EEOC’s guidance clarifies that an employee must show she was qualified at the time of the adverse employment action, rather than at some earlier or later time, it does not limit the qualification determination to the facts known to the employer at the time of the challenged employment action.

McKennon. Next, asserted the employee, the Supreme Court’s decision in McKennon v. Nashville Banner Publishing Co. precludes the use of after-acquired evidence to show that she is unqualified for failing to satisfy the prerequisites prong. In that case, the Court held that permitting “after-acquired evidence of wrongdoing that would have resulted in termination [to] operate[], in every instance, to bar all relief for an earlier violation of the [ADEA]” would be contrary to the deterrence and compensation objectives behind the ADEA and other statutes within that statutory scheme.

While the ADEA and the ADA are part of the same “statutory scheme to protect employees in the workplace,” the court pointed out that the ADA, in contrast to the ADEA, expressly limits its protection to qualified individuals.

Further, the court observed, rather than using after-acquired evidence to rebut the plaintiff’s prima facie case, the employer in McKennon instead argued that after-acquired evidence could provide a retroactive, legitimate justification for the employee’s admittedly discriminatory discharge. Disagreeing, however, the Supreme Court, explained that the employer “could not have been motivated by knowledge it did not have” and therefore “[could not] now claim that the employee was fired for the nondiscriminatory reason” that it discovered only after-the-fact.

Qualification inquiry. “The same is not true of the qualification inquiry,” said the Ninth Circuit, noting that an “employer’s ignorance cannot create a credential where there is none.” Further, under the burden-shifting standard applicable to ADA claims at summary judgment, the question of whether there is a legitimate, nondiscriminatory reason for an employee’s discharge is reached only after the employee establishes her prima facie case, including whether the employee is a qualified individual.

Next, the court cited its decision in Mantolete v. Bolger, in which it held that “[a]lthough it is questionable whether [an employer] could justify [a challenged employment decision] . . . based on evidence obtained after its decision [was made], the admissibility of post-decision evidence is not necessarily forbidden for all purposes.” In sum, said the court, “McKennon held that after-acquired evidence cannot establish a superseding, non-discriminatory justification for an employer’s challenged actions. But as we held in Mantolete, after-acquired evidence remains available for other purposes, including to show that an individual is not qualified under the ADA.” And while the employee pointed to decisions from other circuits discussing McKennon, they were “either in accord or unpersuasive.”

No parade of horribles. Nor, said the court, will allowing employers to use after-acquired evidence to show an ADA plaintiff is not a qualified individual “usher in the parade of horribles [the employee] conjures.” Rejecting her contention that employers would now “scour a plaintiff’s employment history for even the most minor of missing qualifications,” the court pointed out that “employers will not be able to invent new requirements to avoid liability, since the employer must actually require the ostensibly missing qualification at the time of the allegedly discriminatory action.” Moreover, observed the court, “to the extent the EEOC wants us to disregard the prerequisites step of its two-step inquiry for determining who is a qualified individual under the ADA, it could reconsider its own implementing regulations and interpretive guidance that elaborated upon the statutory definition of ‘qualified individual.’”

Interactive process. Turning to the employee’s assertion that the district court erred in granting summary judgment because a fact dispute existed as to whether TRAX engaged in good faith in the interactive process, the court noted that an employer is obligated to engage in the interactive process only if the individual is “otherwise qualified.” Here, it was undisputed that the employee did not satisfy the prerequisites for the technical writer position. Thus, she was not “otherwise qualified,” and TRAX was not obligated to engage in the interactive process.

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