Labor & Employment Law Daily Sales rep suffering stress-related migraines, who said he could do the job under a different boss, was not disabled
Monday, February 10, 2020

Sales rep suffering stress-related migraines, who said he could do the job under a different boss, was not disabled

By Lisa Milam, J.D.

The employee suffered from severe migraines brought on by work-related stress, but he was confident his condition would improve under a new supervisor.

A former Bloomberg sales rep who alleged that work-related stress caused severe migraines that left him unable to perform his essential job functions did not have a disability within the meaning of the ADA, the Second Circuit held. The employee asserted that he was restricted in the major life activity of working, but that he would not be so impaired if he could only be placed under a different boss. However, the appeals court pointed to the “longstanding, common-sense principle of law that employees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a ‘disability.’” The Second Circuit joined its sister circuits in affirming that, even following passage of the ADAAA, an employee must be unable to perform a “broad range of jobs” in order to be disabled for ADA purposes (Woolf v. Strada, February 6, 2020, per curiam).

Work-onset migraines. The employee started working at Bloomberg in 2011 and, on his “self-identification form” submitted voluntarily, he asserted that he did not have a disability, nor any history of impairment that would substantially limit a major life activity. However, he soon began to suffer migraines that would render him temporarily incapacitated, impairing his ability to work and perform general life activities. He attributed the debilitating headaches to work-related stress.

His migraines worsened, affecting his performance and leaving him in the bottom third of the company, performance review-wise. He received a verbal warning and he pushed back, in a 19-page rebuttal. He inquired about a job transfer but was told by HR that he had to be in good standing to obtain an internal transfer. Finally, he notified his supervisors and HR that he was suffering severe migraines and was unable to complete a particular task. And he inquired once again about a transfer.

A month later, the employee told HR that his condition could cause serious health consequences. His neurologist submitted a letter stating that the employee’s condition put him at risk of a heart attack or stroke, “‘simply from the stress he is currently experiencing at work.’” According to the neurologist, work-related stress was “’the primary trigger’” for the migraines, and a leave of absence wouldn’t mitigate the problem absent a change in his work environment.

Discharged; case dismissed. The transfer option having failed, the employee asked if he could stay in his current job, but under different supervisors. The employer declined the request; however, it immediately granted his request for medical leave. For six months, he took intermittent leave whenever requested, at full pay, and he was encouraged to do so. During this period, though, the employee received another poor performance review, accompanied by a written warning. Ultimately, he was terminated.

A federal court awarded summary judgment in favor of Bloomberg (and his former supervisors) against his ADA discrimination claim, among others. Given his own admission that he was able to perform the job under different supervision, no reasonable jury could find he was disabled under the Act, the district court held.

Was he “disabled”? There was no dispute the employee’s migraines were a “physical or mental impairment.” The question on appeal was whether that impairment substantially limited the major life activity of working. In arguing that he could have been accommodated with a transfer, the employee conflated the question whether he had a disability with the question whether he would nonetheless be able to perform his job with a reasonable accommodation, the appeals court explained. Under circuit precedent, when an employee’s condition renders him incapable of doing “only a single, specific job,” then he is not substantially impaired from working. Such was the case here.

ADAAA doesn’t affect the holding. These precedents were issued pre-ADAAA, which directed that “disability” should be broadly construed, the employee argued. However, nothing in the text of this amending legislation or its legislative history indicates that Congress intended to abandon “the well-established understanding that an employee’s ‘inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working,’” the appeals court countered.

It remains the law that, for an individual to establish that he is limited in the major life activity of working, he must show he is limited in his ability to “perform a class or broad range of jobs.” Had Congress intended to abandon this black-letter ADA principle, it would have expressly done so, as it is not usually inclined to “hide elephants in mouseholes,” the appeals court observed. The most recent EEOC interpretive guidance reinforces this understanding as well—as has every circuit to have taken up the question in the aftermath of the ADAAA’s enactment, the court added, affirming summary judgment in Bloomberg’s favor.

Other claims properly dismissed. In a separate summary order, the appeals court likewise upheld dismissal of the employee’s ADA failure to accommodate claim, his FMLA interference cause of action (as all of his leave requests were granted without question, and encouraged), and his reprisal claims under the FMLA and Title VII.

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