Originally published March 31, 2010
The Sixth Circuit Court of Appeals holds that a
plaintiff-employee's claim of disability discrimination (based
on the defendant-company's requirement that he take a
functional capacity evaluation) cannot withstand summary judgment,
as valid safety reasons supported the required test, it was not an
adverse employment action and did not prove discrimination.
On December 3, 2009, in the case of James v. Goodyear Tire
& Rubber Co., 2009 FED App. 0766N (6th Cir. 2009), the
United States Court of Appeals for the Sixth Circuit - which
governs Kentucky, Michigan, Ohio, and Tennessee - upheld the
District Court's decision granting summary judgment in favor of
the defendant-employer. The case offers rationale that would
support an employer's request that an employee submit to an
exam to ensure safety considerations. Further, this case gives
guidance in the uncertain realm of workplace circumstances that
potentially trigger the Americans with Disabilities Act
(ADA).
By way of background, a court's analysis in a disability
discrimination lawsuit generally tracks the following
pattern:
- An employee must first show that he can establish a prima
facie case of discrimination. To establish a prima
facie case of disability discrimination, when there is not
direct evidence of discrimination, a plaintiff must show that: 1)
he is an individual with a disability; 2) he is otherwise qualified
to perform the job requirements, with or without reasonable
accommodation; 3) he suffered an adverse employment action; and 4)
a nexus exists between the adverse employment action and his
disability.
- Once the plaintiff establishes a prima facie case, the
burden shifts to the employer to offer a nondiscriminatory reason
for the adverse employment action.
- If the employer satisfies this burden, the plaintiff must introduce evidence from which a reasonable jury could conclude that the proffered explanation is actually a pretext for unlawful discrimination. An employee generally demonstrates pretext by showing that the employer's proffered reason (a) has no basis in fact, (b) was not the actual reason for the adverse action, or (c) is insufficient to explain the employer's actions.
On motions for summary judgment, an employer's ability to
prevail frequently depends on Plaintiff not being able to establish
his prima facie case. In James, the District Court found
that the employee had not shown that he suffered an adverse
employment action, defined as a "materially adverse change in
the terms or conditions of ... employment because of [the]
employer's conduct."
At the time of the lawsuit, Plaintiff Paul James had worked at the
Goodyear Tire and Rubber Co. (Goodyear) tire manufacturing plant
since 1987. James worked for Goodyear as a banbury operator, which
required him to use physical strength and dexterity. In addition,
the work environment at the plant was industrial and very hot.
Within the first five years at Goodyear, doctors diagnosed James
with progressive multiple sclerosis (MS). Still, he performed his
job without problems for approximately 10 years. By the fall of
2003, however, James's MS symptoms had worsened
noticeably.
Other Goodyear employees alerted management of concerns for
James' safety because of his progressively worsening MS
symptoms. The other employees reported that James held onto
machinery when he walked up and down stairs, that co-workers had to
help him perform tasks and one employee expressed a concern that he
did not think James could maneuver out of the way of passing
forklifts. Both Goodyear and the union at the plant observed James
working with "extreme difficulty" and expressed concerns
for his and others' safety. In his deposition, James conceded
that his MS medications made him feel weak and that he experienced
problems with gait, balance, and spasticity in his legs. James also
conceded that his left-foot drag progressively had worsened and
that sitting for long periods as well as working around heat had
started to bother him.
Initially, union representatives met with James to discuss the
safety concerns. They told him that Goodyear would require him to
take a functional capacity evaluation (FCE) to determine whether
his physical abilities permitted him to continue in his
then-current position (or possibly another position), with or
without accommodation. The union representatives explained to James
that if he failed the FCE, he would probably be terminated by
Goodyear.
As an alternative to taking to the FCE, the union advised James
that instead he could retire for medical reasons and receive
temporary disability benefits. This option would guarantee James
continuing income. Ultimately, James accepted the medical
retirement, leaving his employment with Goodyear.
In the lawsuit, James complained of the unlawfulness of the
allegedly false choice and of being singled out for testing based
on his disability. He insisted that, despite the conditions he
conceded he suffered, he could still complete his job duties,
citing an acknowledgement by Goodyear that he consistently met
performance expectations and that Goodyear never disciplined him
for safety issues. James' brought his claim under the ADA,
which prior to 2008 prohibited discrimination by a covered entity
against "a qualified individual with a disability because of
the disability of such an individual in regard to job application
procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions,
and privileges of employment."
The District Court granted summary judgment to Goodyear, finding
that James failed to establish that Goodyear's insistence upon
an FCE amounted to an adverse employment action, a prerequisite to
a successful ADA claim. The Sixth Circuit Court of Appeals
agreed.
The Court acknowledged that in Burlington Northern & Sante
Fe Railway Company v. White, 548 U.S. 53, 126 S. Ct. 2405
(2006), the Supreme Court drew a distinction between retaliation
and general discrimination claims, holding that general
discrimination statutes define adverse action more narrowly. The
Court ruled that this narrower adverse-action definition for
general discrimination claims does not include an employer's
valid demand for a medical examination. In turn, the Court found
that Goodyear's FCE demand was job-related and consisted with
business necessity. Under the ADA, the exam's scope must remain
appropriately narrow, and the employer must hold a valid rationale
for demanding it.
Here, as James did not actually undergo the FCE, there was no
evidence to raise a genuine issue of material fact regarding the
exam's scope. However, the Court ruled that because Goodyear
required the test for valid safety reasons, it was not an adverse
action nor did it prove discrimination. The Court stated:
In compliance with the ADA, Goodyear required James to undergo testing to assess the potential for harm and the imminence of such harm. The limited, agreed-upon facts regarding James' mobility, coupled with reports of forklift accidents, provided Goodyear with evidence sufficient for a reasonable person to doubt whether James could perform his job without creating a direct safety threat.
The Court found that the ADA allows an employer to make such
assessments to consider: (1) the duration of the risk; (2) the
nature and severity of potential harm; (3) the likelihood that the
potential harm will occur; and (4) the imminence of the potential
harm.
The key points to take away from this case, as noted above,
are as follows:
- Employers must continue to take note of how employees'
conditions can pose safety issues in the workplace. If an employer
becomes aware, through any means, of safety concerns posed by an
employee, the employer should immediately investigate the situation
and take appropriate action. This establishes that the employer
generally views safety of prime importance and, can preclude a
plaintiff-employee from a pretext argument that action was not
taken by the employer upon notice of the safety issue.
- Employers must make specific fact-intensive inquiries before requesting an exam of an employee. Each situation should be evaluated to determine the exact nature of an employee's disability and the possible safety threats posed. Such background information will provide an employer with the proper foundation for requesting the exam, as well as the opportunity to undercut an employee's attempt at establishing a prima facie case for discrimination under the ADA.
Had Goodyear not been able to specify the other employees' complaints regarding safety issues and its prompt action, it might not have been able to set forth its valid rationale to request the exam. Further, as Goodyear asked for the FCE for articulated narrow purposes, the request remained within the allowed employer requested medical examinations under the ADA, as acknowledged by the Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.