Limping for a while? Does that mean you are “disabled”?

Mr. Weems went under the knife to get a torn meniscus repaired.  He missed only two days of work due to this minor surgery. When he came back to work as a teacher, he used a scooter for a while, and then a walking cane.  Eventually, the district nonrenewed Mr. Weems’s contract due to a program change. The district would no longer offer speech as a separate offering at the middle school. Instead, the language arts teachers would incorporate aspects of speech into their lesson plans.

Mr. Weems did not challenge the nonrenewal, but afterwards he filed suit, claiming that he was the victim of disability and age discrimination. He also alleged that the district retaliated against him due to his participation in the NAACP and AFT-Alliance.  Today we are going to tell you about the disability claim.

As far as disability discrimination, Mr. Weems relied on the broadened concept of “disability” that was enacted into law in 2009. Congress wanted the ADA (Americans with Disabilities Act) to cover more people.  In particular, Congress instructed the courts not to be so stingy in examining whether or not a person has a “disability.”

However, the ADA still requires proof that the person’s physical or mental impairment “substantially” limits them. This case illustrates that “substantially” is still an important component of the definition.  The court held that the evidence was so clear about this issue here that no reasonable jury could ever conclude that Mr. Weems was “substantially” limited.

But he had surgery!  His doctor ordered some limitations in the workplace.  What about that motorized scooter?  And the walking cane!! Doesn’t all of that demonstrate that the man had a “disability”?

The court said no:

Plaintiff presents no evidence that his knee injury substantially limited his ability to work, walk, stand, or perform any other major life activity as compared to most people in the general population. (Emphasis in the original).

Nor was Mr. Weems successful in arguing that the district “regarded” him as disabled.  Mr. Weems based this on the principal’s innocent inquiry to the teacher: “What’s the matter with your knee?”  The court noted that the principal “knew that Weems had surgery and that he had some limitations physically, which is a far cry from saying that Weems was disabled under the [Americans with Disabilities] Act.”

The court granted summary judgment to the district on this one.  The case is Weems v. Dallas ISD, decided by the federal court for the Northern District of Texas on May 26, 2017. We found it at 2017 WL 2306526.


Tomorrow: Warning signs that you may have the wrong lawyer….

Some lessons about the ADA

We can learn three things from a recent federal court decision involving the termination of a school counselor, who alleged that she was the victim of disability-based discrimination.

First, it’s tough to make yourself the victim of discrimination when the school gives you everything you asked for.  As the court noted, “Plaintiff does not seriously dispute that she received accommodations for her ailments at all times relevant to this controversy.” When the counselor requested accommodations due to some health issues, the principal responded within 30 minutes that she would “gladly accommodate anything [Plaintiff’s] health requires.”  The principal not only made that general offer, she provided specifics, including a promise to personally cover the classroom for the counselor when needed.

Second, accommodating an employee’s disability requires an “interactive process.” But the employee cannot gripe about the lack of that process if it was the employee who threw the monkey wrench into the system. Here, the court cited an earlier decision for the notion that “An employer cannot be found to have violated the ADA when responsibility for the breakdown of the ‘informal, interactive process’ is traceable to the employee and not the employer.”

Third, it’s acceptable for the employer to require some documentation to help it figure out how to accommodate the employee.  In this case, the employee’s health problems were not readily apparent or obvious.  This is not like a case where the employee is in a wheelchair, or wearing dark glasses and walking with a cane.  This employee had diabetes, plantar fasciitis and intermittent vertigo. The school asked for some documentation to better understand the situation.  The court found that to be reasonable.

The school eventually sought termination of the counselor’s employment, citing ten reasons for this.  The independent hearing examiner found enough evidence to justify termination based on seven of those reasons.  The examiner concluded that the working relationship between the parties was “irretrievably broken.”

This suit, alleging ADA-discrimination followed. The court granted a summary judgment to the district, finding no merit in the ADA claim. The case is Eubank v. Lockhart ISD, decided by the federal court for the Western District of Texas on January 17, 2017.

This case also involved First Amendment issues which we will address tomorrow.


 File this one under:  DISABILITY LAW

Tomorrow: If I rally my colleagues to my side, is that “free speech”?

Did you know….that even after you have used up all of your leave time, you might get some more time off?

Suppose you have an employee who has used up every kind of leave that your district makes available.  Then the employee brings in a medical document stating that he has a physical or mental impairment that substantially limits his performance of the major life activity of working.  He needs some additional time off.  Here are some options:

A. Turn down that request. He’s already been given the same benefits as all other employees. Now he’s asking for more than that.  So if this guy misses one more day of work, fire him.

B. Heave a sigh of resignation and grant the request.  Continue him on paid leave due to the Americans With Disabilities Act.  Stare sullenly out the window while contemplating the unfairness of it all.

C. Grant the request, but make it unpaid leave. See how he likes them apples.

D. Scratch your chin and ponder: will granting the leave create an undue hardship for your district? If it will, turn down the request.  If not, grant the request for unpaid leave.

If you are scratching your chin and pondering…congratulations!! D is the correct answer.  So we are advised by the EEOC in a guidance letter issued earlier this year:  https://www.eeoc.gov/eeoc/publications/ada-leave.cfm

Does this mean that the employee with an ADA-condition might be getting MORE leave than other employees?  Yes.  But remember—the Americans with Disabilities Act requires that employees be given equal opportunities. Sometimes, to make opportunities equal you have to provide treatment that is a bit more than equal.  As the EEOC letter reminds us, reasonable accommodation may mean changing “the way things are customarily done.”


File this one under: DISABILITY LAW