Labor & Employment Law Daily Officer’s medical inquiry claim revived where no-beard policy exemption required ongoing medical certification
Thursday, August 15, 2019

Officer’s medical inquiry claim revived where no-beard policy exemption required ongoing medical certification

By Tulay Turan, J.D.

Reversing summary judgment in favor of the University of Pennsylvania on an African-American police officer’s constructive discharge and ADA discrimination claims, the Third Circuit, in an unpublished opinion, found fact questions regarding his resignation and request for accommodation, and found the district court erred in concluding the ADA’s prohibition against medical inquiries did not apply. The court also reinstated the officer’s FMLA retaliation claim, remanded for further proceedings on that and the other three claims, and denied his other challenges to four lower court rulings (Lewis v. University of Pennsylvania, August 9, 2019, Smith, D., unpublished).

Some claims advanced to trial. The officer, who suffered from Pseudofolliculitis Barbae (PFB), a medical condition aggravated by shaving, filed disparate impact, ADA disability discrimination, retaliation, hostile work environment, and failure-to-accommodate claims. The district court ruled he could not show his employer’s directive that officers be clean shaven had a disparate impact based on race and granted summary judgment to the university on his Title VII claim.

While his ADA disability discrimination, retaliation, and hostile work environment claims all advanced, his failure-to-accommodate claim failed as he did not explain how his employer should have known he sought relief from the directive’s requirement to provide regular medical certification where he expressly asked to be relieved from shaving. In addition, his FMLA retaliation claim survived summary judgment, but his FMLA interference claim did not.

The officer appealed the grant of summary judgment on his ADA claims for (1) constructive discharge and (2) discrimination based on (a) failure to provide a reasonable accommodation and (b) violation of 42 U.S.C. §12112(d). He also challenged a number of the district court’s pretrial and trial rulings.

Constructive discharge. Reversing the grant of summary judgment in the university’s favor, the appeals court found the district court erred in concluding that the officer failed to establish a fact dispute as to whether a reasonable person would have felt compelled to resign. The officer presented evidence of a number of adverse employment actions in opposing summary judgment. Among other things, his superiors disciplined him, altered his job responsibilities, removed him from a preferred assignment, and threatened him with discharge. This was enough to create a dispute of material fact regarding his resignation.

Reasonable accommodation. The court also reversed the district court’s grant of summary judgment on the reasonable accommodation claim. The district court found the officer had never expressly requested the desired accommodation—exemption from filing medical certifications—that he alleged as the basis for his claim. But the appeals court found that was not the proper standard. Applying the correct legal standard, there was a fact question as to whether the university engaged with the officer in good faith. The officer submitted a request for accommodation, requesting to “not shave face or neck.” The university was then on notice of the officer’s claimed disability and the fact that he wanted accommodation, such that it had a duty to engage with him in good faith. The court found it was not clear that the university did so. According to the officer, the university issued a flat denial without making any effort to communicate with him regarding his needs.

Further, “[e]ven if Penn did act in good faith, it is for the jury to decide whether permanently exempting [the officer] from both shaving and the certification requirement would have been a reasonable accommodation,” the court wrote.

Certificates are form of inquiry. Turning to the claim under 42 U.S.C. §12112(d), the court found the district court erred in concluding that section did not apply. The district court concluded that, while the university’s policy required certificates, the officer did not point to anything in the record to indicate that getting a medical certificate requires repeated medical examinations. The appeals court found that both medical examinations and inquiries are prohibited under §12112(d). “Even if the certificates at issue do not require examinations, they still qualify as a form of inquiry,” according to the court. Thus, 42 U.S.C. §12112(d)(4) applies to the university’s medical certificate requirement. Because the district court did not address whether the requirement could be supported by a valid business purpose, the court remanded for further proceedings on this issue.

FMLA claim reinstated, but no new trial on all claims. Next, the court addressed the officer’s two requests for relief based upon reversal of the summary judgment order. The officer argued he should be permitted to pursue his FMLA retaliation claim on remand if the constructive discharge claim was reanimated. He withdrew that claim from jury consideration because he was not entitled to damages given the district court’s conclusion that he had voluntarily resigned. The court agreed with the officer’s position, noting that the university did not oppose it, and reinstated the claim.

However, the court rejected the officer’s argument that he was entitled to a new trial on the claims that went to trial. The officer argued evidentiary rulings related to summary judgment affected his ability to present his case, but the court found it was within the district court’s discretion to exclude evidence it considered irrelevant. The officer had not shown the excluded evidence was relevant to the claims tried. He also did not show actual prejudice to his ability to prove the claims tried. Thus, the jury’s verdict and the district court’s judgment entered pursuant thereto stand, the court ruled.

Other district court rulings. Lastly, the court addressed, and rejected, the officer’s challenges to four other district court rulings. First, the officer appealed the district court’s order denying his motion in limine for a ruling that PFB is a disability as a matter of law. The court found whether PFB qualified as a disability under the ADA definition was a fact in dispute. Thus, the district court was correct to submit the question to the jury.

Second, the officer challenged the district court’s order granting summary judgment as a matter of law in favor of the university on his punitive damages claims. The officer failed to establish that it acted with malice or reckless indifference to his rights. The record was devoid of evidence that the university had knowledge it may be violating his federal rights. In addition, there was evidence it did not believe PFB qualified as a disability and thought the medical exemption for beards was sufficient to address the officer’s condition. Thus, the district court was correct to conclude that a reasonable jury would not have had a legally sufficient evidentiary basis to find for the officer on punitive damages.

Third, the court found the officer failed to establish the district court erred by giving a pretext instruction instead of a mixed-motives instruction. He did not pursue a mixed-motives theory at trial. Instead, his theory was that all of the discipline at issue was pretextual and was based only on his having a beard.

Finally, the court did not err in its sanction order responding to attorney misconduct. The district court was in the best position to assess counsel’s conduct and the need for sanctions in the context of the trial as a whole. The district court opted to give “admonitions all around” and that decision was fully within the court’s discretion.

Thus, the court reversed the district court’s judgment in part, and remanded for additional proceedings on the claims of constructive discharge, FMLA retaliation, ADA discrimination for failure to provide a reasonable accommodation, and ADA discrimination based on a violation of 42 U.S.C. §12112(d).

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