Back in March, when we reported on the Sixth Circuit’s decision in Lewis v. Humboldt Acquisition Corp, No. 09-6381 (6th Cir. Mar. 17, 2011) (PDF), we noted that Lewis was “one of those rare candidates for rehearing en banc."  Our predictive powers proved accurate yesterday when the Sixth Circuit voted for a rehearing en banc in the Lewis case.  See June 2, 2011 Order (PDF).

In its March 17, 2011 opinion in Lewis, the three-judge panel declined to adopt the rule followed in a supermajority of Circuits for bringing a discrimination claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.  In at least ten other Circuits, a plaintiff bringing a discrimination claim under the ADA need only show that the plaintiff’s disability was a “motivating factor” for the adverse employment action in order to prevail.  The Sixth Circuit, however, has followed the rule set forth in its 15-year old panel decision in Monette v. Electronic Data Systems Corp., 90 F.3d 1173 (6th Cir. 1996), which requires a showing that the disability was the “sole reason” for the adverse employment action.  Id. at 1178.  The panel in Lewis was constrained to follow Monette because one panel of the Sixth Circuit cannot overrule the decision of another panel.

A noteworthy practice pointer emerges from the Lewis case that should be emphasized.  It turns out that the plaintiff could have saved substantial time and resources (of both the parties and the Court) if she had requested that her appeal initially be heard en banc, rather than by a three-judge panel which was not in a position to overrule the Monette panel’s prior decision.  Indeed, Judge Merritt, who wrote the panel opinion in Evans, specifically highlighted the benefits of “avoid[ing] the inefficiency of appealing to the panel that could not grant [the plaintiff] the remedy that she seeks . . . .”  It’s true that en banc hearings generally are “not favored,” but in certain cases, en banc petitions in the first instance make sense, and the Sixth Circuit would have welcomed one in this case.

The Sixth Circuit only hears approximately 8 to 12 cases en banc per year, and thus the grant of rehearing en banc in Lewis is indeed rare (as we previously highlighted).  We’ll continue to monitor this important case for you. 

The majority of the time when the Sixth Circuit takes a case en banc, it departs from the result that the panel reached.  Thus, before we close, we would like to make one more prediction: The Sixth Circuit in Evans, sitting en banc, will overrule Monette and adopt the rule followed in the majority of other Circuits for bringing a discrimination claim under the ADA.  You read it here first.