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How Much Does it Take to Establish an ADA Disability and Failure to Accommodate Nuggets


Before getting started on the blog entry for the week, I want to wish all those celebrating, a happy Jewish new year.

 

The blog entry of the week comes from an unpublished decision from the 11th Circuit decided on September 19, 2022, Sugg v. City of Sunrise. It deals with the following questions: is it sufficient to establish a disability if it is just the plaintiff that testifies; is a failure to accommodate a separate cause of action; and does a failure to accommodate case require an adverse action. Keep in mind, that this court holds explicitly that a plaintiff by himself can establish the disability. As the case is decided, the only conclusion that can be reached is that a failure to accommodate cause of action in the 11th Circuit is a separate cause of action that does not require an adverse action beyond the failure to accommodate. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that plaintiff properly exhausted administrative remedies with respect to his retaliation claim, but the claim fails because of the lack of causation; court’s reasoning that a plaintiff may establish an ADA disability with his own testimony; court erred by ignoring plaintiff’s own testimony about his request for reasonable accommodation; court’s reasoning that plaintiff’s claim that he was terminated because of the disability failed for lack of causation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

In May 2014, Sugg was officially hired as the Chief Electrical Inspector for the City of Sunrise. He was employed on a probationary basis for a nine-month term. City of Sunrise probationary employees can be terminated at any time and for any reason during their probationary period, so long as the reason is not illegal or unlawful.

 

In October 2014, about five months into the probationary period, Sugg suffered a heart attack. He was hospitalized for four days and was on leave for two weeks following his discharge. Two days into his recovery, Sugg’s name was no longer listed on the website under the title of Chief Electrical Inspector. In its place was the name of Brian Epstein, a Broward County employee. The City of Sunrise claims the probationary period is vital to its employment process and its purpose was to “evaluate [Sugg’s] performance as the City’s Chief Electrical Inspector and to determine whether [he] was a good fit to maintain future employment with the City.” Sugg claims that the City of Sunrise had a “Prolonged Observation Period” through his employment with Broward County, and that his probationary employment status was just a formality.  According to the City of Sunrise, this change was required as the Board of Rules and Appeals (“BORA”) regulations require a Chief Electrical Inspector to be in place at all times, so the City of Sunrise needed to appoint someone sometime during his recovery, Sugg was decertified as a Chief Electrical Inspector. According to the City of Sunrise, this decertification was required because Christopher Augustin—who took over as Building Official during Sugg’s recovery—discovered that Sugg was missing a necessary BORA certification to serve as Chief Electrical Inspector. And Augustin also testified that Sugg’s certification had lapsed, and he encouraged Sugg to fill out the necessary paperwork to become recertified.

 

Upon his return to work, Sugg “noticed that management was treating him differently.” Sugg testified that Steve Busick, a City Plans Examiner and Inspector, told him he “better watch [his] back” and “they’re after you.” Sugg’s doctor provided a note that stated he could return to work on October 22, 2014, “on light duty.” Sugg says he gave a copy of the doctor’s note to the newly appointed Building Official, Chris Augustin, and to then-Director Lubelski’s assistant. Sugg followed up with an email to Lubelski stating he was back at work on “light duty” and that he gave the doctor’s note to Lubeski’s during Sugg’s absence. But Sugg contends that the BORA regulations also provide that the City Plans Examiner “shall” fill in during a Chief Electrical Inspector’s absence. The City Plans Examiner at the time was Ed Wanamaker. Sugg contends that other Chiefs had been absent longer than he, without being replaced or removed from the website. Lubelski replied later that day, welcoming Sugg back and stating, “If there is anything you need, please let me know.” The City of Sunrise had a policy of allowing employees to accept donated leave time from other employees. Although Lubelski asked Sugg if he would like employees to donate leave time, Lubelski told him one week later that he did not qualify to receive leave donations. Sugg claimed several other employees had received donated leave time, including an employee who had a heart condition. Sometime during the remaining four months of his probationary employment Sugg was involved in an altercation with a City Plans Examiner, Ed Wanamaker. Sugg had performed an employment evaluation of Wanamaker on behalf of the City and Wanamaker was displeased with his evaluation. The conversation got heated; both men claim that the other acted aggressively and they both feared the other would become violent.

 

Having been decertified since October 2014, Sugg completed the necessary paperwork to once again be listed as the City’s Chief Electrical Inspector in January 2015. BORA approves such recertifications, and Sugg’s recertification was on its consent agenda for February 12, 2015. At the meeting, Sugg was recertified as the City’s Chief Electrical Inspector without issue. That same day, Sugg emailed then-Department Director Shannon Ley and his direct supervisor, Augustin, wanting to know if February 13, 2015, which was the last day of his probationary period, would be his last day of employment, given that he had not received any further information from Human Resources about approving his permanent employment. Without a response to his email, he was discharged by the City on February 13, being told only that he was “not a good fit.” Ley was the department Director at that time and thus the final decisionmaker on Sugg’s termination, though she made the decision with input from former Director Lubelski and Augustin. The City claimed that Ley, Lubelski, and Augustin all agreed that Sugg “was not a good fit” based on Sugg’s alleged use of “vulgar and offensive language in the workplace,” “abrasive encounters with co-workers,” “receipt of customer complaints,” and Sugg’s “significant confrontation with Wanamaker where he aggressively got in Wanamaker’s face.” However, Sugg claims that two people later told Sugg he was terminated because of his heart attack: Broward County Building Official Jack Fisher and the previous Building Official, Dennis Pustizzi.

Sugg testified that he did not know that his heart condition could be a disability under the ADA until after he left the City’s employ. About a month before filing his EEOC charge, Sugg was listening to the radio and heard about an employee who was fired because of his heart condition; he “knew at that point that [he] was covered” by the ADA. Sugg filed a charge with the EEOC about seven months after his discharge, on September 15, 2015.

 

The EEOC charge form included a series of boxes listing different kinds of discrimination under the heading “DISCRIMINATION BASED ON (Check appropriate box(es).)” Sugg checked the “disability” box and left the “retaliation” box unchecked. In the area titled, “THE PARTICULARS ARE,” he wrote:

 

“I am a qualified individual with a disability. I was admitted to the hospital on 10/9/14. I was immediately removed from my position as Chief Electrical Inspector. When I returned to work, I requested but was denied a reasonable accommodation on 11/9/14 from Mark Lubelski, Assistant City Manager. My duties were taken from me, I was demoted and I was terminated on 2/13/15. I believe I was discriminated against because of my disability in violation of The Americans With Disabilities Act of 1990, as amended.”

 

On August 28, 2019, Sugg received a “Notice of Right to Sue” from the Civil Rights Division of the U.S. Department of Justice about his EEOC charge. He filed his initial complaint on November 19, 2019. His amended complaint claimed he exhausted administrative remedies with the EEOC and alleged two counts under the ADA: Count I for disability discrimination and Count II for retaliation for exercising his rights under the ADA. The City filed a Rule 12(b)(6) motion to dismiss on both counts. The district court denied the City of Sunrise’s motion to dismiss the disability discrimination claim (Count I) but granted its motion to dismiss the retaliation claim (Count II) for failure to exhaust his administrative remedies by failing to check the retaliation box on his EEOC charge. The district court did not reach the City’s alternative argument that Sugg failed to properly plead his retaliation claim. The City of Sunrise moved for summary judgment on Sugg’s disability discrimination claims. The district court granted the City’s motion for summary judgment after finding that (1) Sugg failed to produce sufficient evidence that he was disabled under the ADA; (2) Sugg’s “self-serving declaration and his own deposition testimony” were not sufficient to establish a genuine dispute as to whether he requested a reasonable accommodation, and moreover his purported requests were not “specific and identifiable”; and (3) there was no evidence of discriminatory intent for Sugg’s termination. Sugg timely appealed both the dismissal of his retaliation claim and the grant of summary judgment for the City of Sunrise on his discrimination claims.

 

II

Court’s Reasoning That Plaintiff Properly Exhausted Administrative Remedies with Respect to His Retaliation Claim, But the Claim Fails Because of Lack of Causation.

 

  1. Courts are extremely reluctant to allow procedural technicalities to bar claims brought under discrimination statutes. Accordingly, courts have held that the scope of an EEOC complaint should not be strictly interpreted.
  2. A party whose EEOC charge is only based on discrimination can also claim retaliation in a complaint filed in court if the facts alleged in the EEOC charge could have reasonably been extended to encompass a claim for retaliation because they were completely intertwined with the complaint of discrimination.
  3. Defendant agrees that plaintiff’s ADA retaliation claim could have reasonably grown out of his charge for discrimination.
  4. The 11th Circuit has held that a lapse of three months between the protected activity and the retaliation is too long to satisfy the causation element of a retaliation claim absent other evidence. In this case, plaintiff fails to allege any facts supporting the claim that other evidence existed aside from the three-month proximity to his termination.

 

III

Court’s Reasoning That a Plaintiff May Establish Disability with His Own Testimony

 

  1. The ADA directs that disability be construed in favor of broad coverage.
  2. Per 29 C.F.R. §1630.2 (j)(1)(ii), an impairment rises to the level of a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.
  3. Substantial limitation must be construed broadly in favor of expansive coverage.
  4. Per 29 C.F.R. §1630.2(j)(1)(i)-(iii) and 42 U.S.C. §12102(4)(B), determining whether an impairment is substantially limiting does not demand extensive analysis.
  5. Major life activities include all kinds of activities and also includes the operation of a major bodily function, including but not limited to circulatory (also called cardiovascular) functions. 42 U.S.C. §§12102(2)(A), (B); 29 C.F.R. §§1630.2(i)(1)(i), (ii).
  6. 11th Circuit precedent requires that a plaintiff’s evidence of disability include the timing, frequency, and duration of his impairments in order to survive summary judgment.
  7. In the absence of any citation to a case from the 11th Circuit, the court declined to find that a diagnosis based solely on self-described complaints or subjective pain cannot qualify as a disabling impairment under the ADA.
  8. As the regulations accompanying the ADA do not require medical evidence to establish a disability, plaintiff’s own testimony is sufficient where it would allow a jury to reasonably determine that the plaintiff was a person with a disability under the ADA.
  9. Plaintiff presented declaration from two doctors to establish that he was a person with a disability. In particular, he submitted declarations from his cardiologist and his primary care physician.
  10. Even though the declarations from his doctors were rather conclusory, plaintiff’s own testimony was not conclusory at all. He testified that he was diagnosed with heart disease at the emergency room following his heart attack. Heart disease satisfies the low threshold of impairment under the ADA.
  11. Plaintiff also testified how his heart disease and corresponding heart attack limited his daily activities. In particular he talked about how his ability to lift things was so limited that he could not lift anything and that he could not move things like pieces of drywall. He also testified that he could only go like 15 minutes spurts before having to stop to catch his breath. Therefore, plaintiff specifically alleged enough non-conclusory information so that a jury could reasonably find that his heart disease is substantially limited in the major life activities of at least lifting and walking.

 

IV

Court Erred By Ignoring Plaintiff’s Own Testimony about His Request for Reasonable Accommodation

 

  1. The ADA explicitly provides a cause of action to disabled otherwise qualified individuals denied reasonable accommodations.
  2. The term “discriminate against a qualified individual on the basis of disability,” includes not making a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an employee in the absence of an undue hardship on the operation of the business.
  3. Triggering an employer’s duty to provide a reasonable accommodation does mean that the plaintiff must make a specific demand for such an accommodation.
  4. The plaintiff has the burden of showing that the accommodation allows him to perform the job’s essential functions-i.e. that the accommodation is reasonable.
  5. While the 11th Circuit has not determined precisely what form a demand for an accommodation must take, whatever the precise standard may be it is not a demanding one.
  6. A plaintiff must at least provide enough information so that the employer can be fairly said to know of both the disability and the desire for an accommodation.
  7. The record shows that around November 10, 2014, plaintiff requested to work from home but the City denied that request without any consideration or dialogue. His deposition testimony was quite clear that he requested to work from home, though he would have preferred to stay in the office on light duty. His deposition testimony was also clear that he supported those requests by referring to his disability. Accordingly, plaintiff made more than one specific demand for accommodation and notified the City of Sunrise multiple ways to accommodate his limitations. He also established the reasonableness of the accommodation by showing that the applicable regulations explicitly provided that the chief electrical inspector did not have to be personally present at the governmental department as long as that person was available by telephone, computer, etc. and could perform their duties.

 

V

Court’s Reasoning That Plaintiff’s Claim That He Was Terminated Because of His Disability Failed for a Lack of Causation

 

  1. Plaintiff does not allege that there was any change in his compensation and his attorney conceded at oral argument that his duties never changed either. It was a demotion in name and not in practice.
  2. Plaintiff does not claim that his request for leave was ever denied.
  3. Plaintiff’s claim that two other individuals told him that he was fired because of his disability does not hold up on further analysis because one does not work for the defendant and the other died before his deposition.

 

VI

Thoughts/Takeaways

 

  1. I usually don’t focus on the conclusion of an opinion because it just states in legalese the result of a court’s reasoning. However, the conclusion of the court in this case is very important. More specifically, the court said:

 

For all these reasons, we affirm the district court’s dismissal of Sugg’s retaliation claim, not for failure to exhaust administrative remedies, but for failing to state a plausible claim for relief. We reverse the district court’s grant of summary judgment on his reasonable accommodation theory of discrimination because genuine issues of fact exist as to (1) whether Sugg was disabled and (2) whether he requested a reasonable accommodation. And we affirm summary judgment on all other theories of discrimination because Sugg could not show discriminatory intent. REVERSED IN PART AND AFFIRMED IN PART.

 

A plain reading of this conclusion can only mean that a failure to accommodate cause of action is a separate cause of action and does not require an adverse action to support it because the failure to accommodate claim survived while the discrimination based upon disability failed due to lack of an adverse action.

 

  1. In this particular case, the plaintiff was able to essentially supplement the declarations of his doctors with his own testimony so as to establish a disability. As a matter of best practices on the plaintiff side, it is a really good idea for declarations of healthcare providers to be as specific as possible with respect to any physical or mental impairment and how that physical or mental impairment limits the plaintiff’s major life activities.
  2. A plaintiff is able to establish a disability under the ADA directly with his/her/they testimony.
  3. There is a case pending before the 11th Circuit that was just argued asking the question whether a failure to accommodate claim requires an additional adverse action or whether the failure to accommodate claim is an adverse action by itself/does not require an adverse action. It will be interesting to see what that panel of the 11th Circuit decides in light of Sugg. The disposition of Sugg in my opinion, can only be read to say that a failure to accommodate claim is a separate cause of action and that no additional adverse action besides the failure to accommodate is necessary for the claim to go forward. If the panel hearing the case that was just argued decides otherwise, it will be interesting to see where it goes from there because you then arguably have two different panels of the same circuit reaching opposite conclusions. In that situation, most circuits will automatically grant a rehearing en banc.
  4. Sugg is an unpublished decision and will be interesting to see whether it gets mentioned by the panel hearing the case just argued about whether a failure to accommodate claim requires a separate adverse action. It will also be interesting to see whether that pending decision is designated for publication or not.
  5. The ADA applies to probationary employees.
  6. EEOC charges are not strictly construed against the charging party.
  7. Magic words are not required to trigger the interactive process. It does not take a high bar to trigger the interactive process.
  8. The Circuit Courts are split on whether a failure to accommodate is a separate cause of action. Courts also go both ways on whether failure to accommodate claims require an adverse action beyond the failure to accommodate.
  9. On a personal note, I can say that as a person with a disability who makes reasonable modification/accommodation requests for my own disabilities all the time, that the failure to accommodate always has an adverse effect on me. For example, my stress levels go way up if I have to stay in a hotel room by myself that is not meaningfully accessible to a deaf person (happens to me all the time when I travel. In fact, I am amazed when it doesn’t happen to me when I travel). It is not only a matter of stress but it creates a dangerous situation during the overnight hours. If a failure to accommodate requires an independent adverse action, do I even have standing because title III does not allow for damages. Similar thought process for an entity that takes federal funds as a result of Cummings, which we discussed here. It may or may not be a similar thought process (§504 is spending clause legislation but title II is not), for a title II entity as well.



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