Labor & Employment Law Daily Any impairment from teacher’s lap band procedure was transitory and minor, so no regarded-as claim
Wednesday, July 8, 2020

Any impairment from teacher’s lap band procedure was transitory and minor, so no regarded-as claim

By Kathleen Kapusta, J.D.

The court affirmed summary judgment against the teacher’s retaliation claim as well because she could not show that the reason she was reassigned to an in-school suspension teacher was pretext for disability discrimination.

Acknowledging that it has not yet decided whether in an ADA “regarded as” disabled case the “transitory and minor” nature of an impairment is part of a plaintiff’s prima facie case or an affirmative defense the employer must prove, and that other circuits are split on this issue, the Fifth Circuit found it “need not wade into that discussion” here. “Either way,” it explained, because the expected duration of any impairment related to a junior high school teacher’s lap band surgery was less than six months, it was objectively transitory and minor. Accordingly, the court affirmed summary judgment against her ADA claims (Lyons v. Katy Independent School District, June 29, 2020, Wiener, J., Jr.).

Coaching preference. Although the junior high physical education teacher had coached girls’ volleyball, track, and basketball for six years, for the 2013-14 school year, she coached only volleyball and track. When the principal subsequently decided that all physical ed teachers had to coach three sports, the teacher, in April 2014, told him she preferred coaching two sports and specifically preferred not to coach basketball as it stretched over the winter break.

Lap band surgery. Not long after, the teacher underwent lap band surgery, which she scheduled during the summer so she would not have to miss work. Sometime in late June, she informed the principal that she could not attend the summer sports camps because of her surgery and the restrictions imposed by her doctor as a result.

Reassigned. About a month later, the principal, in a voicemail, told the teacher that due to the sudden resignation of the in-school suspension (ISS) teacher, he was reassigning her to that position and as a result, she would be required to coach basketball. He also commented that h knew she’d been having some health issues. Upset, the teacher emailed the principal expressing concern that she was being reassigned “because of health concerns and a procedure [she] had” during the summer. In response, the principal reassured her that the reassignment had nothing to do with her surgery.

Take me out of volleyball, too. When the teacher subsequently received an email from the assistant athletic director listing her as the coach for basketball and track, she responded that the principal “said I was out of Basketball, but you can take me out of Volleyball too, that’s fine with me.” Although she claimed she was being sarcastic, she was removed as the volleyball coach. The following year, she was switched from coaching track to coaching tennis.

Grievance and lawsuit. The teacher then filed a grievance, claiming that her reassignment to the ISS position was due to disability discrimination based on her “procedure.” She also filed an EEOC charge and ultimately sued the school, alleging disability discrimination and retaliation in violation of the ADA. The district court granted summary judgment against both claims.

Regarded as. Abandoning on appeal any claim that she was actually disability, the teacher instead asserted that she was regarded by the school as disabled. In the court below, she had clarified that her actual or perceived disability was related to her lap band surgery and not to high blood pressure or obesity. In granting summary judgment against her regarded-as claim, the district court found that because her impairment lasted less than two months, she could not show she was disabled.

Transitory and minor. Agreeing, the Fifth Circuit found that any impairment as a result of her surgery was objectively transitory and minor by her own admission as the actual or expected duration related to the procedure was less than six months. Indeed, observed the court, in a text message to the athletic director, the teacher stated that she was “out of work 2 weeks and with restrictions for 6-8 weeks.” Nor was there any evidence showing the actual or expected duration of any impairment related to the surgery was more than six months. Affirming the court below, the appeals court explained that “Regardless of whether the ‘transitory and minor’ nature of the impairment was part of Lyons’s prima facie case or an affirmative defense to her claim of ‘regarded as’ disability discrimination,” there were no disputed facts regarding the transitory and minor nature of her perceived impairment.

Retaliation. As to her retaliation claim, the district court erred in finding that the teacher failed to establish a prima facie case of retaliation because she did not present sufficient evidence of a causal connection. She claimed she engaged in protected activity when she filed the grievance on August 5, 2014 and she identified several adverse actions including being removed from coaching basketball on August 12. The one-week period of time between filing the grievance and being removed from basketball was sufficient to establish causality for purposes of her prima facie case, said the court, and the district court erred in concluding otherwise.

No pretext. Nonetheless, the school district was entitled to summary judgment as it proffered a legitimate, nondiscriminatory reason for removing her—she told the principal she did not like coaching basketball and did not want to do so—and she failed to present sufficient evidence of pretext. The employee again pointed to the close temporal proximity between her protected activity and the alleged adverse but that was not enough to demonstrate pretext, said the court, affirming the judgment of the court below.

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