Earlier this month, the U.S. District Court for the District of Columbia ruled that thinking and working are both “major life activities” for purposes of employment discrimination claims under the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. This decision is likely to favor white collar plaintiffs who, in seeking to recover under the Rehabilitation Act or the Americans with Disabilities Act (ADA), can now satisfy, in part, the definition of “disability” by demonstrating that a physical or mental condition substantially impaired their ability to accomplish such tasks as “thinking” and “working.”
The facts of Miller v. Hersman, Civil Action No. 07-1832 (D.D.C. Jan. 4, 2011), are extensive. To summarize, Plaintiff Richard Miller worked for the National Transportation Safety Board (NTSB) as a Financial Management Specialist responsible for managing and improving, among other programs, the agency’s credit card program. Beginning in 2003, four years into his work for the NTSB, Miller’s performance dramatically declined. Miller claimed his declining performance was the result of worsening psychological and physical problems, including acute anxiety, depression, and several different back injuries. Between 2003 and 2006, Miller worked with several doctors. One doctor recommended in a 2004 letter that Miller cease work indefinitely, though it is unclear when exactly Miller’s supervisors saw that letter. Throughout 2004, Miller took approximately 300 hours of sick leave, and requested additional annual leave toward the end of the year. Those requests for annual leave were approved for shorter periods than requested or denied due to his supervisor’s concerns that Miller would not be able to make his work deadlines. In early 2005, Miller was informed that if his performance did not improve, he would be placed on a performance improvement plan (PIP) – essentially, a probationary period with a task-oriented plan for improving performance. Miller’s anxiety and depression continued to worsen.
In June 2005, Miller was placed on a 60-day PIP. At the end of the 60-day period, Miller had failed to complete the required PIP tasks. In September 2005, Miller’s supervisor proposed his removal from NTSB based on his “unacceptable performance” under the PIP. The removal decision was pending until June 2006, when the deciding official rejected Miller’s doctor’s recommendation to reinstate him and removed Miller from employment with NTSB. After exhausting his administrative remedies without success, Miller filed this lawsuit alleging discrimination under the Rehabilitation Act and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.; and discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (the defendant was awarded summary judgment on Miller’s ADEA and Title VII claims because Miller was unable to rebut the defendant’s legitimate, non-discriminatory reason for termination with evidence of pretext).
The Court denied the defendant’s motion for summary judgment as to Miller’s Rehabilitation Act claim. The Rehabilitation Act prohibits discrimination by a federal agency against a “qualified individual with a disability” on the basis of that disability. Thus, the Court had to evaluate two questions: (1) does Miller have a disability, and (2) is he qualified under the Act?
As to the first question, the Rehabilitation Act – though only applicable to the federal government – uses the same definition of “disability” as the ADA, which is applicable to all employers. Under both statutes, a disability is a “physical or mental impairment which substantially limits one or more . . . major life activities.” The Court focused on two parts of this definition, evaluating what counts as “major life activities,” and whether Miller’s psychological and physical problems “substantially limit[ed]” those activities. The Court found in favor of Miller on both points. Miller asserted that his conditions impaired his ability to think, work, and concentrate. Although the Court declined to decide if concentrating is a major life activity, the Court did find that thinking is a major life activity. The Court also found that because thinking is required to perform a white collar desk job, the inability to think resulted in the inability to work. Because the defendant did not dispute that working is a major life activity, the Court assumed that fact for purposes of the motion.
The Court also found that whether Miller’s physical and mental impairments substantially limited his major life activities of thinking and working was a disputed question of fact for trial. Although the defendant argued that Miller’s impairments were temporary and situationally related (the impact of his impairments could have been eliminated by transfer to a different workplace), the record included evidence that Miller’s doctors did not believe he could perform any white collar work at all. Therefore, the impact of Miller’s impairments – and, thus, whether Miller was disabled – presented a genuine issue of material fact, and summary judgment was not appropriate.
As to the second question of qualification under the Rehabilitation Act, a plaintiff must show that he could have performed the essential functions of the position with reasonable accommodation. In this case, the Court again found that this issue presented a question of material fact for trial because there was a genuine dispute in the record as to whether the proposed accommodation – six months’ leave of absence – would have enabled Miller to perform his job functions.
Finally, the Court also denied the defendant’s request for summary judgment on the discrimination aspect of Miller’s Rehabilitation Act claim because (1) the defendant failed to offer evidence that the proposed six months’ leave was an unreasonable accommodation, and (2) based on the record, there was a genuine question of material fact as to whether NTSB knowingly terminated Miller based on his disability.