There were two cases decided this past week where courts dismissed ADA retaliation claims on the ground that the employees had not proven that they were “qualified individuals” within the meaning of the disability discrimination laws either because they did not prove the existence of a reasonable accommodation or because they did not prove a legally qualifying disability. These decisions surprised me because under other discrimination laws employees can win on retaliation claims even if they lose on the underlying discrimination claims. In fact, generally good advice for employers is to be cautious how they treat an employee who has requested an accommodation because of the potential for a retaliation claim.
Bagwell v. Morgan County Commission (11th Cir. 1/18/17). In Bagwell, the Eleventh Circuit affirmed summary judgment for the employer on the ground that the employee “did not demonstrate that she was a ‘qualified individual’ under the ADA and the Rehabilitation Act because she failed to demonstrate the existence of a reasonable accommodation that would allow her to perform the ‘essential functions’ of her job." I note that Bagwell is consistent with another Eleventh Circuit case in which the court rejected an ADA retaliation claim on the ground that the employee “has not shown that she was disabled” within the meaning of the ADA when her employment was terminated. Diaz v. Transatlantic Bank (11th Cir. 2/24/10).
Smith v. Constellation Brands, Inc. (N.D. California 1/20/17). In Smith the court granted an employer’s motion to dismiss an ADA retaliation claim on the ground that the employee failed to allege “a plausible disability.” In Smith the employee alleged that she had muscle spasms, bulging disks in her neck, and other medical symptoms that caused her ongoing and chronic pain and that her disability limited her major life activities, including working, walking, head and neck mobility, and physical exercise. The court dismissed the complaint, however, on the ground that she did not explain how her pain “prevented her” from performing her job duties, and that just because her conditions made it more “difficult” to perform them, this was not sufficient.
Employer Lessons? Employers should be cautious about taking too much comfort from these cases. Other Federal Circuit Courts of Appeal who have addressed this issue disagree with these recent decisions. As the Tenth Circuit commented in Foster v. Mountain Coal Co. (10th Cir. 7/26/16), to prosecute an ADA retaliation claim, a plaintiff need not show that he or she suffers from an “actual disability.” Rather, the plaintiff need only show that he or she had a “reasonable, good-faith belief” that he or she was disabled. Other courts have embraced this view, including the judges in two recent cases. Gavurnik v. Hope Properties (E.D. Pennsylvania 1/3/17) and Jones v. Brennan, Postmaster General (N.D. Oklahoma 12/6/16).
Interestingly, courts in California interpreting the California Fair Employment & Housing Act (“FEHA”) have suggested that this California state law may require a showing of actual disability in connection with a retaliation claim. In Madrigal v. Senior Aeorspace, SSP (C.D. California 8/9/16) the court dismissed all FEHA disability claims, including a retaliation claim, on the ground that FEHA requires employees to provide that they suffer from a qualifying disability.
Another word of caution: Employers should be careful about concluding that a medical condition that makes performing a job “more difficult” does not qualify as a disability under the ADA. The ADA Amendments Act of 2008 (“the ADAAA”) were specifically intended to broaden the definition of disability and the ADA requires employees to show that the medical condition “substantially limits” their ability to engage in one or more major life activities – not that it makes them unable to do so.