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Mosby-Meachem v. Memphis Light, Gas & Water Div., No. 17-5483 (6th Cir. Feb. 21, 2018)

The Sixth Circuit affirms a jury verdict for an in-house lawyer in Tennessee, including $92,000.00 in compensatory damages and $18,184.32 in backpay. The court holds that the jury could have found that the employer violated the Americans with Disabilities Act (and state law) duty to accommodate, by failing to allow a ten-week period of telecommuting during the lawyer's pregnancy bedrest.

Mosby-Meachem v. Memphis Light, Gas & Water Div., No. 17-5483 (6th Cir. Feb. 21, 2018): MLG&W's in-house law department had, on paper, a strict 8:30am-5:00pm attendance policy for its lawyers. "However, [it] did not maintain a formal written telecommuting policy at that time, and in practice, employees often telecommuted."

Lawyer Mosby-Meachem was placed on "modified bed rest" in January of 2013, for approximately ten weeks, after surgery during a risky pregnancy. During the bed rest, "she was restricted from engaging in prolonged standing or sitting and from lifting heavy objects. Upon receiving these instructions from her doctors, Mosby-Meachem called [vice president and general counsel] Patterson and informed Patterson of her diagnosis."

The same week, Mosby-Meachem formally submitted an accommodation request to work from home. But the company's ADA Committee (on which Patterson sat) rejected the proposal, stating "that physical presence was an essential function of Mosby-Meachem's job, and teleworking created concerns about maintaining confidentiality." Her appeals were denied, and she was prevented from working from January 30 to April 1, when she was medically cleared to return to work. Her time off from work was partly but not entirely covered by FMLA and short-term disability.

Mosby-Meachem sued under the ADA and Tennessee Human Rights Act for the lost backpay and compensatory relief for failure to accommodate. The jury awarded her a verdict, and the district court denied both judgment as a matter of law and a motion for a new trial (based on evidence and instructional errors). The district court also refused to reduce the backpay award for the period when plaintiff was automatically suspended from practice by the state for failure to pay her dues.

The Sixth Circuit affirms. MLG&W's main argument on appeal was that the plaintiff presented insufficient evidence that she was a qualified person with a disability, because physical attendance was an essential function of the job of in-house lawyer. Despite there being evidence that supported this argument (a written job description, testimony of former employees in the office, and even plaintiff's own testimony), the panel holds that the jury could have held in favor of the plaintiff:

"Mosby-Meachem proffered other evidence at trial, including testimony from coworkers, from which a jury could reasonably conclude that she was otherwise qualified to perform her job from home for ten weeks without being physically present in the office .... For example, several MLG&W employees as well as outside counsel who worked with Mosby-Meachem testified that they felt she could perform all essential functions during the 10-week period working from home."

The plaintiff also president testimony of two outside counsel who testified that they believed she could perform her work temporarily from home. And she presented evidence that poked holes in the company's presentation, such as testifying that the job description was based on a 20-year-old survey, "did not reflect changes in the job that have resulted from technological advancements since that time," and included tasks (such as trying cases and deposing witnesses) that she hadn't performed in eight years.

The panel distinguished recent precedent EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc), and Williams v. AT&T Mobility Services LLC, 847 F.3d 384 (6th Cir. 2017), as cases involving requests for open-ended (instead of finite) telecommuting.

Finally, "Mosby-Meachem presented evidence that MLG&W did not in fact engage in an interactive process, but rather had already determined what accommodation it was willing to offer [sick leave and short-term disability] before ever speaking with Mosby-Meachem." Executives on the ADA Committee had stated that they would never grant a telecommuting request regardless of the circumstances.

The panel also affirms denial of a new trial, finding that (1) the verdict was not against the great weight of evidence; (2) it was not error for the plaintiff (by way of background) to testify about her personal knowledge and expertise in disability-discrimination law; (3) the verdict form was not erroneous; and (4) the district court properly excluded evidence about the lack of financial hardship to the plaintiff (such evidence would have been irrelevant to the accommodation).

Finally, the panel holds that there was no error in refusing to discount backpay for the short period when the plaintiff was administratively suspended from practice for failure to pay her bar renewal fee. "[I]t is undisputed that neither party was aware that Mosby-Meachem's law license was suspended during the relevant time frame and that-had MLG&W not denied her requested accommodation-Mosby-Meachem would have received her full pay for work performed during this time."

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