Labor & Employment Law Daily Despite short duration of impairment, truck driver fired after infection following lung surgery revives regarded-as claim
Tuesday, June 2, 2020

Despite short duration of impairment, truck driver fired after infection following lung surgery revives regarded-as claim

By Kathleen Kapusta, J.D.

The issue of whether an impairment is “minor” is a separate and distinct inquiry from whether it is “transitory,” the appeals court explained.

The court below erred in failing to consider whether a truck driver’s impairment was minor—he had missed nine-and-a-half weeks of work in a 15-week period due to a lung biopsy and respiratory infection—separately from whether it was transitory, the Third Circuit ruled, reversing the dismissal of his ADA regarded-as claim. “Because even minimally invasive lung surgery is still thoracic surgery, more than likely requiring inpatient care, it is plausible that [the employee’s] lung surgery was non-minor,” the appeals court reasoned, finding that at the pleading stage, he plausibly pleaded a non-minor perceived impairment (Eshleman v. Patrick Industries, Inc., May 29, 2020, McKee, T.).

A little over two years after he started working for Patrick Industries, the employee took medical leave to have a nodule surgically removed from his lung and tested for cancer. Two months later, he returned to work without any restrictions. Six weeks after that, however, he took two vacation days due to a severe respiratory infection that lasted five days. At the end of his shift on his second day back, he was fired.

Shifting explanations. He was originally told it was due to performance issues but after he reminded the superintendent that his most recent performance review had been excellent, the superintendent claimed he was fired because he had not called out sick during his recent leave. The employee later learned that his employer claimed he had been fired for behavioral issues.

Lower court proceedings. The employee then sued, alleging the company regarded him as disabled and the shifting reasons for his termination were pretext for disability discrimination. Although the district court found he pleaded a plausible regarded-as claim, it nonetheless dismissed his complaint because his alleged impairment, which lasted less than six months, was objectively transitory and minor.

Transitory and minor. On appeal, the employee conceded that his actual impairments—lung surgery to remove a nodule and test it for cancer and a severe upper respiratory infection—were transitory. He argued, however, that the district court erred when it failed to separately evaluate whether his impairment was minor. The ADA, observed the court, excludes impairments that are transitory and minor from regarded-as claims. While it defines “transitory” as “an impairment with an actual or expected duration of 6 months or less,” it does not define “minor.” The ADA regulations, however, require an employer to establish that the perceived impairment is objectively both transitory and minor.

Moreover, the court pointed out, while the regulations define “transitory” as “lasting or expected to last six months or less” they do not extend this definition to “minor.” Finding it clear that under the regulations “transitory” is just one part of the two-prong “transitory and minor” exception, the court observed that the regulations refer to the time limitation as “[t]he six-month ‘transitory’ part of the ‘transitory and minor’ exception.”

EEOC guidance. In addition, the court noted, the EEOC’s interpretive guidance not only states that the transitory and minor exception requires a showing that the impairment is both transitory and minor, it clarifies that the six-month time limit applies only to the “transitory” prong of the exception. Further the guidance provides an example of a minor back injury that lasts longer than six months, that is not transitory and minor because it meets only the “minor” prong of the exception but is not transitory. “The converse must also be true; an impairment that is transitory because it lasts less than six months but is objectively non-minor must also fall outside the ‘transitory and minor’ exception,” the court reasoned.

Budhum. And while the district court relied on the Third Circuit’s 2014 decision in Budhun v. Reading Hosp. and Med. Ctr., in which the appeals court held that an employee’s broken pinky finger, which resulted in her losing the use of three fingers for two months, was objectively transitory and minor, the lower court “improperly conflated ‘transitory’ and ‘minor’ by mechanically applying the six-month limitation for ‘transitory’ claims to the definition of ‘minor,’” the Third Circuit explained.

While the appeals court acknowledged that Budhun could be read as suggesting any impairment with an actual or expected duration of six months or less is necessarily transitory and minor, “the discussion must be viewed in the context of Budhun’s objectively non-serious pinky injury, as well as the allegedly short recovery time,” the court explained, noting it “should not be interpreted as imposing a rigid six-month-or-more requirement on establishing ‘regarded-as’ claims.”

Factors to consider. In finding that the district court erred in not considering whether the employee’s impairment was objectively minor separately from whether it was transitory, the Third Circuit explained that it should have considered such factors as the symptoms and severity of the impairment, the type of treatment required, the risk involved, and whether any kind of surgical intervention is anticipated or necessary—as well as the nature and scope of any post-operative care. “A broken pinky finger, treated with a splint, is hardly comparable to surgically removing a lung nodule.”

Further distinguishing the case at hand with Budhun, the court noted that while the employer in Budhun considered the plaintiff to have only a broken bone in her hand, the employee here alleged that his employer perceived his surgery and subsequent respiratory infection to signify and on-going health condition. Thus, the lower court failed to evaluate whether the employee’s “perceived chronic medical condition, distinct from his lung surgery, was objectively transitory and minor.” The employee’s allegations, said the court, which were based on the lung-surgery and the subsequent respiratory infection affecting the same bodily system, plausibly pleaded a non-minor perceived impairment.

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