Labor & Employment Law Daily Employer waived argument that employee’s regarded-as theory was invalid
Wednesday, April 3, 2019

Employer waived argument that employee’s regarded-as theory was invalid

By Kathleen Kapusta, J.D.

Not only did the employer fail to object to an instructional error at a charging conference, it played along with a flawed theory of liability throughout the litigation and ultimately endorsed the specific instruction embodying that theory.

Observing that both parties to this lawsuit under the ADA proceeded under the “regarded-as” case theory through litigation, trial, and post-trial briefing, and only on appeal did the employer “seek to unring the bell and overturn the jury’s verdict” because it was instructed that the “regarded-as” case theory was valid on her reasonable accommodation claim, the Third Circuit found the employer waived this argument because of its continued acquiescence to that theory. Accordingly, the appeals court affirmed the judgment of the court below (Robinson v. First State Community Action Agency, April 1, 2019, Fuentes, J.).

You said I had a disability. Dissatisfied with the employee’s work, her supervisor told her “you either don’t know what you’re doing, or you have a disability, or [you’re] dyslexic.” As a result, the employee sought out a psychologist who concluded that she demonstrated “signs of dyslexia” but did not diagnose her with the disorder. The employee forwarded the evaluation to her supervisor, who in turn forwarded it to the HR director, who told the employee he did not believe the diagnostic information contained in the evaluation would impact her ability to perform the essential elements of her job responsibilities and instructed her to follow the individual development plan she had been placed on.

Just do your job. The next day, the employee requested reasonable accommodations in the form of “hands-on organized training for the types of clients” she would be responsible for counseling. In response, the HR director stated “I fully understand and know ADA. What you need to do is your job.” A few weeks later, the employee was fired.

Lower court proceedings. Suing under the ADA, she argued since at least the summary judgment stage that her employer wrongfully terminated her and wrongfully denied her reasonable accommodations, both because she actually possessed a disability (dyslexia) and because it regarded her as dyslexic. At trial, the employee prevailed on her reasonable accommodation claim but not her termination claim.

The employer moved for a new trial, arguing that it was prejudiced by the employee’s testimony that the EEOC had found in her favor. The district court ruled that striking the testimony was a sufficient response to the inadmissible evidence. The employer also argued that the lower court erred in mentioning the statutory damage cap for the employee’s claims in its jury instructions, but the lower court found that it did not object at trial and the error was harmless.

Regarded-as theory. On appeal, the employer argued for the first time that the lower court’s judgment should be vacated because the employee’s “regarded-as” disabled case theory was precluded by the ADAAA. After the ADAAA went into effect, the appeals court observed, an individual who demonstrates that she is regarded-as disabled is not entitled to a reasonable accommodation. Therefore, the reasonable accommodation jury instruction, which informed the members of the jury that they needed to find only that the employer regarded the employee as dyslexic, was error.

Waiver. But the employer waived any objection to the instruction, said the court, pointing out that throughout the history of this litigation, including in its early stages, it was routinely confronted with the employee’s regarded-as case theory and not only did it fail to object, it specifically assented to the jury instruction it now claimed was erroneous. During trial, when the employee suggested that the relevant jury instruction include a four-part test on a failure to reasonably accommodate a plaintiff who was regarded as disabled, the employer’s counsel supported the proposed instruction, stating that “it would be simpler if the accommodation claim is included and the language about the four-part test should be included.”

After the employer was found liable on the reasonable accommodation claim, it moved for a new trial but did not raise the error in the post-trial briefing or move for judgment as a matter of law on those grounds. This course of conduct, said the court, evinced an intent to proceed under the employee’s regarded-as case theory and waived any objection based on the 2008 ADA amendments.

Model jury instructions. As to the model jury instructions, which erroneously included a regarded-as instruction, the court noted that “Model instructions are designed to help litigants and trial courts, not to replace their shared obligation to distill the law correctly when drafting proposed jury instructions. Thus, the existence of the antiquated model jury instruction here, which regrettably does not yet reflect the 2008 Amendments, fails to provide a second justification for our decision to not review the relevant jury instruction.”

Statutory damages cap. Turning to the employer’s argument that the inclusion of the $50,000 statutory damages cap was error, while the court agreed, there was no evidence that it affected the jury’s decisionmaking. Indeed, the court observed, the jury award of $22,501 was well below the statutory cap. Finding no prejudice to the employer, the appeals court concluded that there was no plain error.

Employee’s testimony about EEOC decision. Nor did the district court abuse its discretion in determining that a new trial was not warranted as a result of the employee’s testimony about the outcome of her complaint before the EEOC. While the employer argued that it was improperly prejudiced by her disclosure that the EEOC ruled in her favor, it did not explain why striking the testimony from the record was insufficient, except to speculate that her statement “likely played a part in the jury’s verdict.”

Noting that the jury returned a split verdict, the appeals court reasoned that had the jurors been under the impression they should find the employer liable because the EEOC found in the employee’s favor, it did not follow that this prejudice would manifest itself only in the reasonable accommodation verdict and not the termination verdict. Further said the court, “we presume that jurors follow the instructions given to them by the trial court,” a presumption that is only overcome where there is an “overwhelming probability” that the jury was unable to follow the instructions and a likelihood that the evidence wrongfully admitted was “devastating” to the other party. And here, there was simply no evidence the jury considered the employee’s testimony after receiving the lower court’s curative instruction. Nor was there a likelihood that the consideration of her testimony would have been devastating to the employer.

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