Employment Law Daily Water service worker with short-term memory issues not a direct threat to safety
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Wednesday, January 27, 2016

Water service worker with short-term memory issues not a direct threat to safety

By Dave Strausfeld, J.D. A water service employee was not a safety threat on the job even though he had developed some short-term memory problems as a result of a severe head trauma, held a federal district court in Illinois, refusing to overturn a jury verdict in his favor on his ADA discriminatory discharge claim. Moreover, there was sufficient evidence that he could perform the essential functions of his position installing water meters and troubleshooting customers’ water problems (Stragapede v. City of Evanston, January 22, 2016, Chang, E.). Nail gun accident. An employee of the city’s water department suffered a non-work-related injury when a four-inch nail was lodged in his head after a nail gun accident. After months of medical care, he had a fitness-for-duty evaluation at the city’s request and a neurologist concluded that, although he had “mild residual cognitive deficits,” he “should be able to return to work.” The neurologist recommended a work “trial” supervised by a coworker. The employee finished the work trial and was reinstated in June 2010. However, the city had issues with his performance, including his difficulty using a laptop in the field, distracted driving, and failure to complete tasks. Less than a month after his return, he was put on administrative leave. He was fired in September 2010. After a jury ruled in his favor, the city moved for judgment as a matter of law, or alternatively a new trial. The court denied the city’s motions. Can perform essential functions. In asking the court to set aside the jury verdict, the city argued that the employee could not perform the essential functions of his job. But there was “more than enough evidence” for a jury to conclude otherwise, the court found. His supervisor testified that he was capable of doing a “perfect install on meters,” and no one ever told him after returning from medical leave that he was not completing his daily duties appropriately. Also, although he had trouble remembering how to log in to his computer, this problem was largely solved when someone suggested he keep a sticky note with his log-in credentials nearby. His only computer problem was logging in; he did not have trouble using the actual computer software applications. Neurologist’s opinion rejected. The neurologist who initially recommended that he be allowed to return to work later reversed course and expressed the opinion that he could not perform his job duties, but a jury could have reasonably found that this conclusion was unreliable. After all, the later opinion was prepared in response to a request from the city’s HR manager, and the neurologist admitted that he did not have any independent knowledge of how the employee had fared on the job other than what the HR manager said. The jury was entitled to believe that the HR manager provided the doctor with only a few “cherry-picked examples” of the employee’s performance in the field, leading to the doctor’s “inevitable” negative conclusion, as the court put it. Direct threat? Nor was it clear that the employee was a direct safety threat to others. Under the ADA, an employer may refuse to employ an individual who poses a “direct threat” to the health or safety of other individuals that cannot be eliminated by reasonable accommodation. The risk must be significant, the Supreme Court has emphasized. Here, it was not apparent that the employee posed a safety risk. During his brief time back at work after his injury, no one reported any specific safety problems involving him. True, some city employees, including his direct supervisor, believed he could not perform the job safely because—in generally worded testimony—he was forgetful, “couldn’t follow verbal instruction well,” and might potentially “step into traffic, get hurt, or hurt somebody else that’s driving by.” But the employee credibly testified at trial that he was conscientious about safety, wore a safety vest, and took other precautions. No medical opinion. Although the city again attempted to rely on the neurologist’s testimony, he never offered an opinion specifically about safety. When asked at trial about safety risks, the neurologist replied: “I don’t know, since I’m not sure of the inner workings of the Water Department. I’m not sure what all the safety issues that are involved there.” In sum, the city had failed to show that the employee was a safety threat, or at least a reasonable jury could have found. Pain and suffering damages. The city also sought remittitur of the jury’s $225,000 award for pain and suffering, but the court refused to negate the award. Based on the employee’s and his wife’s testimony, a reasonable jury could have decided that the employee intensely loved his job and losing it was devastating to him. The city pointed out that he never even sought professional help or therapy, characterizing his distress as “garden variety,” but it was reasonable for the jury to believe that his distress was significant, the court ruled. And while $225,000 was on the “very high side” for a compensatory damages award in these circumstances, such comparisons are rarely dispositive. Awards in other cases “provide a reference point that assists the court in assessing reasonableness; they do not establish a range beyond which awards are necessarily excessive,” the court stated. The court also refused the city’s request to reduce the $354,000 back pay award.

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