By Lorene D. Park, J.D. Reversing summary judgment against a mechanical engineer’s ADA claims arising from the revocation of a job offer, the Fifth Circuit found that the lower court erred by ignoring the expanded definitions and relaxed standards of the 2008 amendments to the Act. In the appellate court’s view, there was evidence that the plaintiff was substantially limited in performing major life activities due to a shoulder injury, that the employer regarded him as disabled, and that despite his limitations he could perform the essential functions of the position for which he applied (Cannon v. Jacobs Field Services North America, Inc., January 13, 2016, Costa, G.). Accommodations sought. The plaintiff is a mechanical engineer with over 20 years of experience. In 2010, he had surgery to repair a torn rotator cuff, but the surgery was unsuccessful. As a result, he can’t raise his right arm above shoulder level and is limited in his ability to push or pull with that arm. In 2011, he was offered a job as a field engineer with the employer. He had a pre-employment physical and told the doctor about his injury. He also disclosed that he previously took a pain reliever that is a version of the opioid Tramadol and still had a prescription but no longer took it. He passed the drug screen, and the doctor cleared him for the job so long as the employer offered these accommodations for his shoulder: no driving company vehicles; no lifting, pushing, or pulling more than 10 pounds; and no working with his hands above shoulder level. Job offer revoked. Instead of agreeing, the employer concluded he was physically incapable of doing the job. There was conflicting evidence on who made the decision to revoke the job offer. Human Resources had notified a manager at the Colorado job site about the accommodations he sought. In response, the manager said the plaintiff would “not be able to meet the project needs and required job duties” because the job required “driving, climbing, lifting, and walking” at a site located in the mountains with rough terrain. Instead of relaying this unequivocal position to the plaintiff, an HR rep told him the employer had concerns that he could not reach above his head with his right arm. He asked if he could contact someone to resolve the issue and was referred to the occupational health department, which asked him to clarify whether: (1) he could climb a ladder, and (2) he was still taking the pain medication. He provided documentation from his doctor stating that he was cleared to climb vertical ladders and maintain 3-point contact with either arm, and was being weaned from the pain medication. No one from the company followed up with the plaintiff to discuss the doctor’s notes. Instead, on the same day he submitted the clearance forms from his doctor, he was informed that the employer was rescinding the offer based on his inability to climb a ladder. He continued to try to prove he could climb a ladder, sending a video of himself doing so, but he received no response. He filed suit and the district court granted summary judgment for the employer, finding that the plaintiff’s rotator cuff injury did not render him disabled under the ADA. Plaintiff had “disability.” Reversing, the Fifth Circuit first concluded that the lower court erred by ignoring Congress’s expansion of the definition of “disability” when it amended the ADA in 2008. Under the more relaxed standard, the appeals court found ample evidence to support a conclusion that the plaintiff’s injury qualified as a disability. Indeed, the ADA includes “lifting” in its list of major life activities, and an applicable regulation included “reaching” as well. Both the plaintiff and his doctor stated that he could not lift his right arm above shoulder level and had considerable difficulty lifting, pushing, or pulling objects with his right arm. And it appeared undisputed that these limitations were what led the employer to rescind the job offer. Less than two hours after receiving the report on the plaintiff’s physical, the manager concluded that he could not perform a job that required “driving, climbing, lifting, and walking.” Furthermore, the company’s belief that the plaintiff’s injury resulted in a substantial impairment meant that he also met the ADA’s definition as someone “regarded as having . . . an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Based on the foregoing, the lower court erred in finding that the plaintiff was not disabled under the Act. Qualified for position? The appeals court next considered whether, despite the plaintiff’s impairments, he was still qualified for the field engineer position. Although this was a closer question, a jury could find in his favor. Assuming that driving was an essential function of the position, there was sufficient evidence that he could perform that duty. Though an employee who took narcotics could not drive a company vehicle under company policy, there was a question as to whether he was still taking the medication, which was prescribed “as needed.” The court noted that the plaintiff stated that he no longer took the medication; he did not test positive on the drug screen for any substances that the employer tries to detect. Likewise, given the doctor’s note and the video of the plaintiff climbing a ladder while maintaining 3-point contact, the appeals court was unable to conclude as a matter of law that there was no evidence supporting the view that he could perform this essential function despite his impairment. This was true even though the plaintiff conceded that, in the video, he raised his injured arm above his shoulder in violation of his doctor’s orders. Pretext. The appeals court next concluded that the legitimacy of the employer’s justification for rescinding the job offer depended on whether the plaintiff was disabled and qualified for the job. If a jury credited the evidence favoring the plaintiff, then revoking the offer based on his physical impairment would have constituted discrimination forbidden by the ADA. For all these reasons, summary judgment was reversed.
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