Labor & Employment Law Daily EEOC’s six-year delay, and who ‘broke’ the interactive process, necessitate trial on veteran’s disability bias claim
Tuesday, July 17, 2018

EEOC’s six-year delay, and who ‘broke’ the interactive process, necessitate trial on veteran’s disability bias claim

By Lorene D. Park, J.D.

Denying motions for summary judgment by both the EEOC and by the casino it claimed violated the ADA by failing to accommodate a bike security officer who requested leave for Post-Traumatic Stress Disorder (PTSD), a federal court in Nevada found that further discovery was needed to decide whether the EEOC was barred by the equitable defense of laches due to its delay in filing suit. The court also found a triable issue on whether the employee was qualified under the ADA, considering he did not return to work, and in-person attendance was an essential function of his job. A jury could also come out either way on the issue of who was responsible for the breakdown in the ADA’s required interactive process (EEOC v. Wynn Las Vegas, LLC, July 10, 2018, Boulware, R., II).

The employee, a U.S. Army veteran who served in the Iraq War, was diagnosed with PTSD after his military service, first receiving treatment in December 2008. Meanwhile, he was hired as a full-time bike security officer at a major Las Vegas casino resort. His job required that he patrol and monitor assigned areas and respond to emergency situations as needed. He performed his job without incident from 2007 through the first half of 2010. He was never counseled nor disciplined for attendance or any other problem.

In the summer of 2010, the employee started having problems with his medication for PTSD and spoke to his shift manager, for the first time disclosing his diagnosis to the casino. He said he might need some leave and she told him to fill out FMLA forms. The nurse practitioner who treated the employee did not fill out the medical certification but provided a letter recommending the employee be allowed to change duties and times, as needed, to less stressful situations. It also requested that he be allowed to leave work if he reported that his anxiety was increasing, “before he loses control in specific situations.” Between August and October 2010, he reported one or two such instances, and his supervisor allowed him to step away from his duties.

On August 31, the casino provided a new certification letter to the employee, which the nurse completed except for a question on frequency and duration of incapacity, to which she responded: “NA. Not a concrete time span or limit can be predicted.” Finding this incomplete, the casino gave the employee until September 26 to provide a complete form. He failed to do so. At one point he requested FMLA leave, which was denied on September 30. He was not asked if he needed leave as an accommodation. The casino did reach out to the nurse, but she did not respond.

Did not return from leave. Meanwhile, due to a staffing shortage, all security officers worked mandatory overtime. The employee worked multiple extra shifts until October 19, which would ultimately be his last day to work. In late September he met with the casino’s employee relations counselor, stated that he did not want to change shifts, and asked for intermittent FMLA leave, which was denied the next day. He was not asked about leave as an accommodation.

However, based on a letter from his nurse, he was given a week of vacation, but he did not return as expected on October 27. In late October, he provided a nurse’s note stating he could return November 13. In early November, he filed an EEOC charge of discrimination, which the EEOC sent to the casino on November 4. The employee provided another letter from the nurse on November 13, though the parties dispute whether that was received. The casino repeatedly asked for completed medical certification forms based on deficiencies in what it had received. Communications broke down and he was suspended pending investigation for job abandonment on November 19. The employer left messages and sent FMLA forms, but these were not returned. The employee came in for a January 13, 2011 meeting. When asked if he could return to work, he said he wasn’t sure. He resigned in February.

EEOC sues . . . nearly six years later. The EEOC filed suit on his behalf in September 2016, alleging failure to accommodate, failure to engage in the interactive process, and retaliation in violation of the ADA. As one of its affirmative defenses, the casino argued that the EEOC was barred by laches because of the delay in filing suit. The agency moved for summary judgment on that defense, arguing that the casino could not show substantial prejudice and that laches should not bar this suit because it was filed in the public interest. The casino claimed it faced evidentiary prejudice (memories fade; evidence is lost) from the EEOC’s unreasonable delay.

Laches defense against EEOC? The court noted that under the Equal Employment Opportunity Act of 1972, the only time limit on the EEOC’s right to sue is that it may not pursue litigation until at least 30 days after a notice of charges is filed. Otherwise, “neither [Section] 706(f) nor any other section of the Act explicitly requires the EEOC to conclude its conciliation efforts and bring an enforcement suit within any maximum period of time.” Yet if the evidence shows the EEOC acted with unreasonable delay, “the federal courts do not lack the power to provide relief.” If an ADA defendant is prejudiced by a private plaintiff’s unexcused conduct, a trial court may restrict or deny backpay relief. “The same discretionary power to locate a just result in light of the circumstances peculiar to the case . . . can also be exercised when the EEOC is the plaintiff,” said the court, quoting a Supreme Court case from 1977.

Here, the court found summary judgment was not warranted because the inquiry into the laches defense was highly fact-intensive and there was insufficient evidence, at this point, to determine if the EEOC’s delay was unreasonable or whether the casino was substantially prejudiced.

Qualified to perform essential functions? The court also denied the EEOC’s motion for summary judgment on whether the employee was a qualified individual under the ADA. Although it was undisputed he had a disability, a jury could find that he was not qualified to perform the essential functions of a bike security officer, which required consistent in-person attendance, from the time he disclosed his diagnosis to the time he resigned. On the other hand, a jury could also find he was qualified if he had received a reasonable accommodation, such as removing overtime shifts from his schedule.

Who broke the interactive process? The casino moved for summary judgment as well, arguing that the employee was responsible for the breakdown in the interactive process because he did not fully complete FMLA certification forms. But Congress did not intend the FMLA to modify the rights available under the ADA, noted the court, and FMLA intermittent leave was just one potential accommodation proposed by the employee and his nurse. To the court, there was a triable question on whether the casino engaged in the interactive process by considering suggestions other than FMLA leave.

Retaliation claim also proceeds. Also denying summary judgment on the retaliation claim, the court found triable questions on whether the unpaid suspension pending investigation amounted to a retaliatory adverse employment action, given its close temporal proximity to the employee’s EEOC charge.

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