By Harold S. Berman J.D.
Because the manufacturing plant job of an African-American man required him to manually move heavy material “all day long,” his ADA claim against the company for firing him after eight months of leave following an accident limiting the use of his left arm failed, the Tenth Circuit ruled. Affirming summary judgment to the employer, the appeals court concluded that no reasonable jury could find that he could perform his essential job functions using only one arm, or that the company failed to reasonably accommodate him after extending eight months of leave. The court also affirmed the dismissal of his FMLA claims as he could not show causation and his Title VII claims as he did not identify similarly situated comparators (Gardenhire v. Johns Manville, February 7, 2018, Baldock, B.).
Elbow injury. Hired in 2007 for a fiberglass insulation manufacturer, the employee’s job required that he manually pick up and move insulation materials throughout the day. In December 2012, he broke his left elbow while skating, and his surgeon restricted him to one-handed work and no left-handed lifting for four weeks. He took FMLA and short-term disability leave. After his FMLA leave expired, his doctor provided a note extending his restrictions for another six weeks, and in June 2013, again extended his restrictions for six more weeks. His short-term disability coverage ended on June 29, after which he requested permanent and total disability benefits from the company’s insurer. He stated, and his doctor affirmed, that he could not work because of his injured elbow. The insurer denied the claim.
Extended leave. In late July, HR sent him a letter seeking information about his return to work, noting his leave had been extended several times to the current date of August 8, and stating that additional medical information was required to determine what reasonable accommodations the company could offer. His doctor completed the enclosed form, again stating that the employee could perform only one-handed work with no lifting using his left hand. On August 21, he stated that these restrictions needed to be extended for an additional six weeks.
Termination. After the company ultimately determined that it could not make any reasonable accommodations, it terminated the employee effective August 30, 2013. Nearly eight months later, in April 2014, the employee’s doctor signed a return to work form indicating retroactively that the employee could return to work on September 1, 2013. The employee sued, alleging claims under the ADA, the FMLA and Title VII, all of which were dismissed on summary judgment, and the employee appealed.
ADA essential functions. Affirming summary judgment on the employee’s ADA claims, the appeals court reasoned that given that the employee’s written job description required him to remove all material that came from a machine and set aside defective material, and those materials typically weighed 25 to 55 pounds and sometimes needed to be lifted and thrown to another location, no reasonable jury could find that he could perform the essential functions of his job using only one arm.
Eight months of leave. Nor could a reasonable jury find that the company failed to reasonably accommodate the employee’s injury. The company allowed the employee eight months of continuous leave before terminating him, and the employee produced no evidence that he notified the company contemporaneously with his termination that his doctor had removed his work restrictions. Rather, his doctor executed the medical release form nearly eight months after the company terminated him.
100 percent healed policy? The court also rejected the employee’s argument that he had direct evidence of discrimination as the company required employees to be “100 percent healed” before they could resume work. The employee did not raise a triable issue concerning such a policy. Vague deposition testimony by a junior-level HR employee concerning when injured employees were permitted to return to work was offered by someone whose job duties were clerical, was entirely speculative, and was contradicted by her other testimony. It was also undisputed that the company attempted to determine from the employee whether there were any reasonable accommodations that might enable him to return to work, and those efforts were inconsistent with the existence of a 100 percent-healed policy.
Additionally, a 100 percent-healed policy was not relevant to the employee’s claim. Such a policy could not give rise to a finding of liability because the employee did not show any triable issue concerning whether he could perform his essential job functions with or without reasonable accommodation.
FMLA retaliation. Summary judgment was appropriate on the employee’s FMLA retaliation claim because the employee could not show causation. His FMLA leave expired by April 2013, and the company took no adverse action against him until it fired him in August 2013. A five-month gap was insufficient to show causation, and there was no other causal evidence.
FMLA interference. As for the employee’s FMLA interference claim, the appeals court rejected the employee’s assertion that the company’s 100 percent-healed practice interfered with his right to be restored to his position during his initial 12 weeks of leave. First, the employee failed to show a triable issue as to whether the company even had a 100 percent-healed policy, and even if there were such a policy, the FMLA permits an employer to have a uniform policy that requires each employee to obtain a certification from his or her health care provider that the employee can resume work.
Title VII. The employee’s Title VII discrimination claim failed as well. Although the employee was African-American, the two white comparators he identified were not similarly situated. Nor were the employee’s affidavits, which contained inadmissible hearsay allegedly stated by other African-American employees, sufficient for his claim to have survived summary judgment.
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