Labor & Employment Law Daily Employee fired two days after revealing shoulder pain has ADA ‘regarded-as’ claims revived
Wednesday, September 19, 2018

Employee fired two days after revealing shoulder pain has ADA ‘regarded-as’ claims revived

By Kathleen Kapusta, J.D.

Noting that it has not spoken on the expanded scope of the “regarded-as” definition of disability in the 10 years since the ADAAA was enacted and that some district courts have mistakenly continued to apply the narrower pre-ADAAA definition, the Ninth Circuit found the court below erred in concluding as a matter of law that an employee who was allegedly fired two days after revealing he suffered from shoulder pain was not regarded as disabled. Everything was going “swimmingly” for him until his employer, after learning of his shoulder pain, rescinded a transfer offer and forced him to resign, the appeals court pointed out, finding that from these facts it would be reasonable to infer the employer forced him to resign “because of” his shoulder injury (Nunies v. HIE Holdings, Inc., September 17, 2018, Tashima, A.).

As a full-time delivery driver, the employee operated his employer’s company vehicle; loaded, unloaded, and delivered five-gallon water bottles; and occasionally assisted in the warehouse. Purportedly because of pain in his shoulder, he decided in June 2013 that he wanted to transfer to a part-time warehouse job. In order to effectuate this transfer, he found a part-time warehouse worker to swap positions with him.

Job no longer exists? After the employee’s supervisor contacted the company’s Honolulu office, the switch was purportedly approved on June 14. Three days later, the employee told his supervisor he was having shoulder pain. Two days after that, his supervisor informed him that it would not extend the part-time warehouse position to him and his last day would be July 3. Although his June 27 termination report stated that the part-time position was not available, in a June 24 email, the employee’s supervisor asked his colleagues “can you scan a copy for a job opening for a part-time warehouseman ad[?]”

On June 20, the day after he was informed he would not get the part-time job, the employee went to the doctor for his shoulder pain and received a note stating he should not work until being reevaluated on July 5. Following an MRI on July 29, he was diagnosed with supraspinatus tendinitis/partial tear of his left shoulder. By September 2014, the injury was resolved.

Lower court proceedings. The employee sued under the ADA and Hawaii law and the district court, granting summary judgment against his claims, found among other things that he did not have a physical disability under the ADA because he had not established his shoulder injury “substantially limited” any “major life activity” or that he was regarded as having a disability because he did not come forward with any evidence his employer subjectively believed he was substantially limited in a major life activity.

Regarded-as. Under the ADAAA, the appeals court began, an individual meets the requirement of “being regarded as having such an impairment” if he establishes that he has been subjected to a prohibited action because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Prior to the ADAAA, to sustain a regarded-as claim, a plaintiff had to show the employer subjectively believed the plaintiff was substantially limited in a major life activity. Here, the Ninth Circuit observed, although the district court cited the ADAAA definition of regarded-as, it relied on pre-ADAAA case law to hold that the employee did not establish coverage. The lower court concluded “that Plaintiff has not sustained his burden of presenting direct evidence that Defendant subjectively believed that Plaintiff is substantially limited in a major life activity” and, based on the plain language of the ADAAA, it was error for the district court to require the employee to present evidence that his employer believed he was substantially limited in a major life activity.

Because of his injury. Applying the correct law, the appeals court found the employee established a material fact issue as whether he was regarded as having a disability. He proffered evidence that his supervisor told him the transfer to the part-time position was fully approved on June 14; on June 17, he told his supervisor and his operations manager he was having shoulder pain; and then, on June 19, he learned that he would not receive the transfer and that he had to resign, supposedly because the part-time job no longer existed. Observing that his employer advertised an opening for the exact same position just days afterwards, the court found it reasonably could be inferred that the position clearly still existed. From these facts, said the court, it would be reasonable to infer the employer forced the employee to resign because of his shoulder injury.

Transitory and minor. Although the employer argued that the regarded-as definition of disability does not apply to “transitory and minor” impairments, the transitory and minor exception is an affirmative defense, the appeals court observed, finding that the employer here offered no evidence to sustain its burden that the employee’s actual or perceived injury was transitory and minor.

Job ad. Also rejected was the employer’s contention that its newspaper advertisement was irrelevant to whether the company regarded the employee as disabled. To the contrary, evidence it lied to the employee about the availability of the part-time position raised the reasonable inference that the employer withdrew its transfer based on an illicit reason and considering that the employee had informed the company two days earlier that he was hurt, “a reasonable jury could connect those dots,” the court stated.

Physical disability. The district court had determined the employee could not establish a disability under the physical prong because even if he had identified a life activity that was affected by his impairment, he did not show his shoulder injury substantially limited any of those activities compared to most people in the general population. However, the appeals court found he did identify two major life activities: working and lifting. Finding a dispute about whether his shoulder injury substantially limited those life activities, the court noted that he testified that any time he lifted his arm above chest height he would experience a stabbing pain and numbness. While his employer pointed out that he continued working through the pain and thus he was not substantially limited in his ability to work, in the court’s view “a stabbing pain when raising one’s arm above chest height substantially limits the major life activity of lifting and possibly working.” Therefore, the district court also erred in deciding as a matter of law that the employee did not meet the physical disability definition.

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