Labor & Employment Law Daily Sheet metal assembler fired after seizure disorder diagnosis advances ADA claims
Thursday, October 22, 2020

Sheet metal assembler fired after seizure disorder diagnosis advances ADA claims

By Kathleen Kapusta, J.D.

None of the decisionmakers in the termination decision apparently considered the frequency or likelihood of the employee having a seizure or sought input from her doctor on those issues.

Citing evidence that a sheet metal assembler who was fired after her employer determined it was not safe for her to be around machinery because she suffered from petit mal seizures could perform the essential functions of her position with reasonable accommodations, a federal court in Kansas denied summary judgment against her ADA claims. Although her employer, a manufacturer of ventilation products, argued that she presented a direct threat to herself and others, the uncontroverted facts, said the court, showed the company’s decision to fire her was lacking in objective justification and could be found unworthy of credence (Bailey v. Metal-Fab, Inc., October 15, 2020, Broomes, J.).

Seizure disorder. The employee, who began working as a fabricator in 2008, was diagnosed with the seizure disorder 10 years later when, while driving to work, she damaged her car when she sideswiped a utility pole and fence but could not remember the accident. While on leave following her diagnosis, she noticed that she sometimes experienced an aura and although she looked “spaced out,” she remained conscious of what was going on. The aura was sometimes followed by a seizure, which lasted no longer than a minute, and which occasionally caused her to lose her train of thought and become disoriented. They also could cause staring spells, teeth grinding, gripping of objects with hands, and bladder incontinence.

Limitations. The employee was permanently restricted by her doctor from “exposure to bright lights (i.e., welding) continuously” and from using machinery without safety devices, and from being around ladders and unprotected heights. Determining that the employee could not safely perform her job duties without an accommodation and that it could not offer her an accommodation without an undue hardship, the employer fired her.

Essential job functions. It argued that the employee could not show she was capable, with or without accommodation, of performing the essential functions of her job as her impairment prevented her from being able to safely work in a factory setting around dangerous machinery. The employee, however, not only cited evidence that she could work with and around machinery that was equipped with safety devices, there was also evidence the machinery in the shops where she worked was equipped with such devices.

The employee’s vocational expert toured the employer’s facility and observed that all the machines “had some types of guards,” that he considered sufficient to accommodate someone with petit mal seizures. Although the employer argued that adding additional protective guards to each piece of machinery the employee might be required to work on would be costly and burdensome, the employee pointed to a facially plausible accommodation—the addition of safety guards like the type already widely in use at the facility that would allow her to perform the essential function of operating machinery.

Direct threat. As to the employer’s contention that floating between departments was an essential job function that she could not perform without entering into the path of forklifts, the court noted that her doctor imposed no medical restrictions relating to working or moving around forklifts. And while the employer argued that the performance of this function would pose a direct threat to the employee’s safety or to the safety of others, a jury, said the court, could find the employer lacked objective evidence of a significant risk to health or safety.

Reasonable medical judgment. For instance, there was evidence that at the time of her termination, the employee had been seizure-free for nearly a month as a result of her medications. Although there was no indication the employer had been made aware of this, an employer claiming a direct threat is required to consider the employee’s “present ability” to perform safely based on “a reasonable medical judgment that relies on the most current medical knowledge” or other objective evidence and a reasonable jury, said the court, “could find Defendant could have and should have sought a current medical opinion concerning the effect of Plaintiff’s medication on her seizures before it terminated her.”

Forklifts. Moreover, there was evidence the employee’s seizures lasted only a matter of seconds, never caused her to fall, and the risk of injury from a forklift to any of the employer’s employees was quite low. And even if the risk was substantial, the employee pointed to several potential accommodations, including that she could take breaks at specific times when forklifts were elsewhere, she could wear reflective clothing in aisleways to alert forklift drivers, safety chains could be positioned to prevent accidents, or a coworker could accompany her whenever she had to cross an area where forklifts were present.

Welding. And while the employer also argued that the restriction on continuous exposure to bright lights meant she could not be in its shops because its welding curtains did not reach the ceiling, the employee pointed out that her doctor clarified that the restriction did not prevent her from being in the shop around welding. In addition, there was evidence that the employer already utilized welding shields and curtains, which were adequate to screen her from any potentially harmful light flashes. Thus, the employee cited sufficient evidence to show she could perform the essential functions of her position with reasonable accommodation.

Pretext. As to the employer’s assertion that it proffered a legitimate reason for firing the employee—she presented a direct threat to herself and others—the court found sufficient evidence of pretext. The decision, observed the court, was based in part on input from the first shift superintendent who thought the employee was a danger “because of sharp objects all the way around.” While this was apparently based on his belief the employee might fall on a piece of metal if she had a seizure, there was no evidence she had fallen or was likely to fall during a seizure. To the contrary, her seizures usually involved a short lapse in concentration and had never resulted in a fall, the court observed, noting that the superintendent’s opinion was not based on individualized consideration of the employee’s disability, but on unfounded assumptions about persons who have seizures.

Likewise, the HR director’s belief that if the employee had a seizure “she would become unstable [and] she could fall into a piece of equipment,” was similarly flawed, as the danger of falling was not included in any medical opinion and the employee specifically told him she did not fall as a result of her seizures. Noting that the CEO testified that there was no discussion regarding the likelihood of the employee being injured as the result of a seizure, the court pointed out that none of the decisionmakers apparently considered the frequency or likelihood of her having a seizure or sought input from her doctor on those issues.

Pointing further to evidence that the decisionmakers did not consider various accommodations concerning forklifts or welding flashes that might have rendered any risk to the employee or others insignificant, the court found a reasonable jury could conclude that the employer’s “invocation of the risk of harm is lacking in objective justification and is not worthy of credence.”

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