The Fifth Circuit issues some useful guidance on an employer’s obligation under the Americans with Disabilities Act (ADA) to offer job restructuring as a reasonable accommodation to disabled employees. The employer here, according to the summary judgment record, failed to offer support to an employee with epilepsy in the form of alternative transportation and assistance with computer-related tasks. The panel also clears up the circuit standard for a plaintiff to prove causal nexus under the ADA, and restates that an ADA plaintiff need only prove that disability was a motivating factor in the adverse action.
EEOC v. LHC Group, Inc., No. 13-60703 (5th Cir. Dec. 11, 2014): The employee, Kristy Sones, RN, worked as a Field Nurse for the defendant from 2006 to 2009, at which point — though the timing was disputed — she was promoted to Team Leader. “Team Leaders manage patient care, schedule field nurses, fill in when nurses are absent, and communicate with patients’ doctors and pharmacists.”
On May 26, 2009, Sones had a grand mal seizure, at which point everything unravelled. Within a month, she was terminated, supposedly for performance reasons.
The record reflects that LHC was not responsive to Sones’s requests for accommodations. For instance, she was not cleared by her neurologist for driving, which was one of the duties listed in the Team Leaders job description. She sought instead to obtain rides from co-workers and a neighbor. She also sought “extra help” with the computer-related requirements of her job, which she found tiring. In spite of her requests, she allegedly did not receive accommodations.
There were also remarks by the employer that suggested impatience with Sones’s recovery. According to Sones’s EEOC charge, a supervisor named Taggard supposedly told Sones that “if [her] disability manifested again while [Sones] was on the job, [LHC] would be in trouble.” Likewise, on the day of her termination, an HR representative named Brown allegedly stated that “We’re going [to] have to let you go, because you’re a liability to our company.”
The panel reverses summary judgment in part, finding that There is a genuine dispute of material fact about whether the employer was motivated to terminate the employee because of disability.
The panel clarifies a long-standing intra-circuit split over the prima facie standard of proof under the ADA. While some panels had held that the employee in an ADA case must prove that he or she was replaced by a non-disabled individual, the court holds that such proof is not strictly necessary. To establish a nexus, it is sufficient to show simply that “(3) that [the employee] was subject to an adverse employment decision on account of his disability.” (The panel thus disaffirms contrary decisions in Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997), and EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009).)
The panel notes that this correction brings the Fifth Circuit in line with “the There circuits [that] have overwhelmingly required plaintiffs to prove their termination was because of their disability rather than provide evidence of disfavored treatment or replacement.”
Then returning to the record in this case, the panel holds that while driving was an essential function of the Field Nurse position (on which the court affirms summary judgment), There was a genuine dispute about whether driving was necessary for a Team Leader. “[C]ontrary to the written position description, Team Leaders in practice drove far less frequently than did Field Nurses. Statements in [Nursing Director]Guchereau’s deposition qualify the driving requirement in the position description: many Team Leader tasks were performed in the branch office.”
The driving duties, the panel holds, could have been modified.
“Guchereau’s deposition testimony suggests that a taxi or van service might have enabled a Team Leader to adequately discharge her duties, and LHC’s position description expressly states that travel can be accomplished ‘via car or public transportation.’ This evidence raises a genuine dispute as to whether Sones’s proposed accommodations were the kind of ‘job restructuring’ the ADA envisions. See 42 U.S.C. § 12111(9)(B).”
The panel also holds that the record supports a finding that the employer failed to engage in the interactive process of considering accommodations, once Somes made her request. “Given the relative infrequency with which she would have been required to drive, Sones’s proposed solutions were not so unreasonable that they absolved LHC of its statutory duty to at least discuss accommodation.”
Likewise, the panel holds that LHC owed Sones consideration on her computer-related duties. To begin with, the impairment might only have been temporary: “Sones contends that her limitations were largely due to an unusually high dosage of anti-seizure medication, which Sones was in the process of tapering.” Regardless, LHC had a duty to work with Sones on her limitations.
“Sones expressly reached out to her supervisors, indicating that she wanted temporary help using computer programs and remembering her passwords in light of her high medication levels. Faced with Sones’s request for ‘extra help,’ Taggard, her supervisor, kept silent and walked away. On this record, a reasonable jury could find that Sones reached out to LHC for accommodation and was denied an interactive process.”
The panel holds as well that the record included There evidence of a nexus:
“To show nexus, the EEOC highlights that Sones’s supervisors criticized her performance only after her seizure and that these criticisms were ‘exaggerated, unfounded, or fabricated.’ It also points to Taggard’s comment, ‘We’re going [to] have to let you go because you’re a liability to our company.’ Similar statements appear in Sones’s EEOC charge: ‘Taggard told me that if my disability manifested again while I was on the job, [LHC] would be in trouble,’ and ‘[Brown] told me that I was terminated because I have become a liability to [LHC] because of my disability.'”
While the district court considered these comments to be inadmissible hearsay because they were found in Somes’s EEOC charge, the panel holds that the comments were admissible: “First, the statements in Sones’s charge were made by LHC employees speaking on behalf of the company; they are Therefore not hearsay under Federal Rule of Evidence 801(d)(2). Second, Sones’s charge repeating the statement is not hearsay because it is not being offered for the truth of the matter asserted, i.e., for the proposition that Sones was in fact a liability. See Fed. R. Evid. 801(c)(2). Finally, Sones reproduced the statements in a signed, verified document based on her personal knowledge of the conversation, in accordance with Rule 56(c). See Fed. R. Civ. P. 56(c)(4).”
Finally, the panel holds that because the ADA requires proof only that disability was a motivating — not a determining — factor in the adverse decision, the EEOC’s alleged failure entirely to rebut the employer’s performance-based reasons for termination was not fatal to the claim. “[A]n employee who fails to demonstrate pretext can still survive summary judgment by showing that an employment decision was ‘based on a mixture of legitimate and illegitimate motives . . . [and that] the illegitimate motive was a motivating factor in the decision'” (quoting Machinchick v. PB Power, Inc., 398 F.3d 345, 355 (5th Cir. 2005)). The various comments suggesting a biased motive for terminating plaintiff were enough to present a genuine dispute of material fact.