By Brandi O. Brown, J.D.
A maintenance worker for a McDonald’s franchise in New York, who alleged that he was fired one month after taking FMLA leave and because of his disability, an inguinal hernia, will proceed with most of his claims under the ADA and FMLA, a federal district court in New York ruled. Contrary to the defendants’ argument, courts have found that a hernia can qualify as a covered disability, particularly after the ADAAA. Also, the fact that the employee was fired approximately one month after returning from FMLA leave satisfied the causal connection requirement at this stage of litigation. However, the employee’s interference claim was dismissed, as was a refusal to rehire claim against one of the defendants. The motion to dismiss was granted in part (Crosby v. McDonald’s of Guilderland, LLC, May 2, 2018, D’Agostino, M.).
Had hernia, took leave, fired. Just over one year after he was hired to perform grill and maintenance work by a McDonald’s franchise in New York, the plaintiff, who suffers an inguinal hernia and other serious health conditions, took six weeks of FMLA-qualifying leave for medical treatment. He alleged that his employer was aware of his disabilities prior to that time and that he needed accommodation on occasion but that he had nevertheless performed well at his job. The employee returned to work six weeks later. Approximately one month after his return, however, he was injured while performing maintenance work on a freezer and was treated at the emergency room. When he returned the following day, he requested a light duty accommodation. He was fired and the manager who fired him told him that it was directly related to his health conditions.
Offer to rehire was rescinded. Two months later the employee filed an EEOC charge. Two months after that, unbeknownst to the employee, the franchise changed ownership (although the employee alleged that the “new” owners have common ownership with the former owner). The manager and employees were retained, and the location remained the same. One month later the employee was offered reinstatement or rehire. However, after he completed the employment application he was told by a general manager in training that he would not be rehired because the manager who had originally fired him had advised against it. He filed a second charge of discrimination. After the EEOC issued a notice of right to sue the employee filed suit. The defendants filed a motion to dismiss.
Hernia can be disability. For the most part the court denied the defendants’ motions. It rejected the argument that the employee’s EEOC charges were untimely. It also denied the argument that a hernia, per se, is not a covered disability. First, the court explained, the cases cited by the defendants for the argument that a hernia is not a disability were not persuasive. Almost all of them predated the ADA Amendments Act of 2008, which broadened the scope of what constitutes a covered disability under the ADA.
With regards to the cases decided after the ADAAA, the court added, federal district courts have repeatedly found that a hernia qualifies. For those that dismissed such claims, they did so “not because of a per se preclusion” of such claims, but because the complaint did not allege sufficient facts to establish the claim. That was not the situation in this case, the court explained, because the complaint alleged at least minimal facts to support that his condition limited a major life activity (the ability to squat, lift, and stand) and was a long-term impairment (it was still ongoing).
Retaliation. Although the employee’s interference claim could not survive dismissal (he received six weeks of leave and requested accommodation, not leave, after his work injury), his FMLA retaliation claim did survive. Although the defendants argued that the employee failed to plausibly allege a causal connection between his leave-taking and an adverse employment action, the court found the contrary to be true. The employee alleged that approximately one month after he took leave he was fired and the close temporal proximity between his return and his discharge was sufficient at this stage of litigation. Likewise, the employee’s ADA retaliation claim survived based on his allegations that he was fired on the same day that he requested further accommodation and the other allegations and facts he included in his complaint.
Successor liability. On questions of successor liability raised by the defense, the court was satisfied that the factors weighed in favor of finding success liability on behalf of Michell Wolf LLC, which assumed ownership in 2017. In reaching that conclusion the shared ownership and management made it reasonable to infer that any notice given to the prior owner would be imputed onto the successor. The same held true for the continuity factor, based on the same workforce and management working at the same location. The inability of the predecessor to provide relief also weighed in favor of successor liability. With regards to the refusal to rehire claim against the new owner, the court found that the employee plausibly alleged facts giving rise to an inference of retaliatory and discriminatory intent.
Predecessor not liable. The same was not true, however, for the predecessor, which was no longer operating at that time, and the court granted its motion with regards to the refusal to rehire claim. Given that it was not liable, the court explained that successor liability on the part of the new owner was not possible. This was an issue because of the new owner’s argument that the employee failed to identify it in the second EEOC charge and, therefore, that it lacked notice. However, the Second Circuit takes a “flexible stance” towards such procedural requirements and applying the circuit’s “identify of interest” exception and analysis, the court concluded that the new owner was still on the hook for the claims. The employee was not aware of the change in ownership when he made the charge and, in fact, although the new owner was aware of the first charge and had offered to rehire the employee, it made no steps to intervene in the second charge.
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