Employment Law Daily City employee fired after traumatic brain injury will keep $354K award
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Thursday, August 3, 2017

City employee fired after traumatic brain injury will keep $354K award

By Kathleen Kapusta, J.D.

Rejecting arguments by the City of Evanston, Illinois, that a water services employee who suffered a traumatic brain injury was not a qualified person under the ADA, that he posed a direct threat to himself and others, and that the trial judge incorrectly calculated his backpay award, the Seventh Circuit affirmed a jury award of $225,000 in his favor on his ADA claim and the judge’s backpay calculation that brought the total award to $354,070. Also affirmed was the denial of the city’s post-trial motions for judgment as a matter of law, a new trial, and remittitur (Stragapede v. City of Evanston, Illinois, July 31, 2017, Sykes, D.).

As a water services worker, the employee among other things found leaks, tested water pressure, and replaced water meters. In 2009, he suffered a traumatic brain injury and was placed on leave while he underwent rehabilitation. Before returning to work, he was assessed by a neurologist who advised that he was capable of returning to work but suggested that the city prepare a work trial to test his ability to perform the daily functions of his job in the field.

Worrisome developments. After passing the three-day work trial, the employee returned to work with two accommodations: He was permitted to be off-task to consult with his supervisors if he had any questions and he could use a map, pen and paper, and a tape recorder as needed to perform his duties. After about two weeks, the city started noticing some worrisome developments, including that he drove through an intersection while looking down at his lap, was unable to complete a water meter installation, mistakenly went to the wrong location on two occasions, and tripped on a set of steps and hurt his toes.

Second leave. The employee was again placed on leave while the city consulted with the neurologist, who opined in one letter that the incidents were related to his brain injury, and in a second letter two months later that the incidents rendered him unable to perform the essential functions of his job. He was fired shortly thereafter.

Damage awards. He then sued the city under the ADA and the jury returned a verdict in his favor, awarding him $225,000 in damages. The trial judge subsequently found that he was entitled to back pay plus interest, bringing the total award to $354,070. Denying the city’s post-trial motions, the lower court entered judgment in favor of the employee.

Essential job functions. On appeal, the city, citing testimony from the neurologist and the employee’s coworkers as well as his attendance record, first argued that the employee was unable to do his job. The neurologist, however, examined the employee only once, after which he advised the city that the employee should be able to resume work. The doctor’s opinions in his two subsequent letters to the city were based on information the city provided to him.

Noting that it is a jury’s job to weigh conflicting evidence, make credibility determinations, and evaluate the trial record, the court pointed out that the jury may have given the doctor’s initial opinion more weight than his later opinions that were based on the information supplied by the city. Nor was it irrational for the jury to discount the doctor’s last letter opining that the employee was unable to perform the essential functions of his job.

As to testimony by one of the employee’s supervisors that he could not complete a meter installation and other water services work, that supervisor had never observed the employee in the field. In contrast, the employee’s direct supervisor, who performed spot checks on him, testified that he was perfectly capable of installing meters.

And while the city argued that the employee was so frequently absent that he was unable to fulfill the function of regular attendance, it counted his returns to the office to ask questions, said the court, observing that a jury could reasonably conclude that his infrequent and temporary office trips seeking assistance with his computer login and password should not count as absences from work.

Direct threat. The city next argued that it did not matter whether the employee actually posed a direct threat to health or safety; it was enough that it thought he was a direct threat. Quoting from the U.S. Supreme Court’s decision in Bragdon v. Abbott, however, the court observed that an employer’s “belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability.” Rather, a “direct threat” defense is based solely on “medical or other objective evidence.” Here, the medical and objective evidence was mixed, said the court. As to testimony that the employee took his eyes off the road while driving through an intersection, he claimed he was grabbing a clipboard that had fallen, the light was green, and no pedestrians were present. Reasonable jurors could accept this explanation and reject the city’s argument that the incident supported an inference that the employee was a safety threat. Further, the court noted again, the jury was free to discount the neurologist’s last two letters regarding the employee’s performance.

As to the city’s assertion that not just anyone could do the employee’s job, a more focused inquiry, said the court, was whether he could do it without significant risk to health or safety. It was reasonable to conclude he could.

And while the trial judge may have wrongly excluded evidence that the employee was in a car accident before his head injury, which the city offered as evidence that his driving posed a safety risk, this was harmless error, said the court, noting that the direct-threat defense was predominantly based on the doctor’s opinions and the single episode of inattentive driving did not loom large.

Back pay. Turning to the city’s challenge to the backpay award, in which it argued that the employee failed to mitigate damages, the court noted that to prove a failure to mitigate in this context, the employer must show that “(1) the [employee] failed to exercise reasonable diligence to mitigate his damages, and [that] (2) there was a reasonable likelihood that the [employee] might have found comparable work by exercising reasonable diligence.” Although the city argued that this approach should be abandoned in favor of the approach endorsed by the Second Circuit, which eliminates the employer’s burden to prove the availability of other comparable employment, the court declined to do so, finding that its approach has been repeatedly reaffirmed and best comported with the concept of mitigation in this context. Specifically, said the court, an employee can mitigate damages only if it is within his power to reduce the harm he suffered. The plaintiff’s backpay award should not be reduced based on failure to mitigate if reasonably diligent effort would not have been likely to produce comparable employment, the court explained, noting that the trial judge faithfully applied circuit precedent in declining to reduce the backpay award for failure to mitigate and there was no manifest error.

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