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Exby-Stolley v. Bd. of Cnty. Comm'rs, No. 16-1412 (10th Cir. Oct. 11, 2018)

The Tenth Circuit produces a clear circuit split on an issue now poised for Supreme Court review: must a ADA plaintiff challenging an employer's failure to reasonably accommodate a disability prove an adverse employment action? The panel splits two-to-one on this issue, in favor of the employer.

Exby-Stolley v. Bd. of Cnty. Comm'rs, No. 16-1412 (10th Cir. Oct. 11, 2018): The plaintiff, a kitchen inspector, suffered a broken arm while doing her job, and - when she returned to work - was slowed down in doing reports because she could only use her left hand. The parties at trial offered different explanations of efforts to accommodate the plaintiff, but the bottom-line was that she was assigned to part-time duty. She later resigned.

At the trial of Ms. Exby-Stolley's ADA claims, the jury was instructed that it must find the plaintiff suffered an "adverse employment action" as one element of her claim. Entering a defense verdict, the jury's special interrogatories indicated that the jury found that the plaintiff was a qualified individual with a disability, but that she suffered no adverse employment action. As the panel majority summarizes, from the defense perspective:

"The County had argued to the jury that placement of Plaintiff on temporary half-time office duty was not an adverse employment action because she fully agreed with the change and lost no pay (the reduction was offset by workers' compensation payments); and the County took no later action against her because she voluntarily resigned."

On appeal to the Tenth Circuit, among other arguments, Ms. Exby-Stolley argued that the jury should not have been instructed that it had to find an adverse employment action on her reasonable-accommodation claim. Two circuits had issued opinions stating that there was not such element: EEOC v. AutoZone, Inc., 630 F.3d 635, 638 n.10 (7th Cir. 2010); and EEOC v. LHC Group, Inc., 773 F.3d 688, 703 n.6 (5th Cir. 2014). And the Tenth Circuit itself had so indicated in EEOC v. C.R. England, Inc., 644 F.3d 1028, 1038 n.10 & 1048-50 (10th Cir. 2011).

The Tenth Circuit, 2-1, nevertheless affirms the defense verdict. It begins by stating that the guiding language of the statute requires proof of an "adverse employment action" because any ADA violation must concern "discriminat[ion] ... in regard to ... terms, conditions, and privileges of employment" (42 U.S.C. § 12112(a)). While conceding that the "adverse action" term is a judicial gloss on "employment," the majority reasons that it is a prevalent one under Title VII and other employment statutes.

The plaintiff had argued that the "adverse employment action" gloss originated with the McDonnell Douglas burden-shifting test, and that the burden-shifting test does not apply to reasonable-accommodation cases. But the majority rejoins that, while the reasonable-accommodation plaintiff need not prove motive (rendering the burden-shifting test inapposite), they do have to show that the failure-to-accommodate is employment-related.

The panel majority dismisses as dicta several prior Tenth Circuit decisions, including C.R. England, Inc., that did not recite "adverse employment action" as an element of the claim (supposedly, because those decisions were decided on other grounds). "[S]ilence-the complete failure even to discuss an issue, such as whether an adverse employment action is a required element of the claim-is not a holding, however thundering, particularly when no party has raised the issue." In those cases, "whether an adverse employment action was an element of the claim would not have affected the result, there is no indication that the issue was argued, and the opinions offered no reasoning why an adverse employment action would not be an element." The panel majority cites several cases from other circuits that cited "adverse employment action" as a requirement, while dismissing (also as dicta) language in AutoZone and LHC Group that rejects such a requirement. It also finds the EEOC's enforcement guidance, Enforcement Guidance: Reasonable Accommodation and Undue Hardship under The Americans With Disabilities Act (2002), silent and thus unpersuasive on the issue.

The plaintiff argued, alternatively, that a denial of a reasonable accommodation is itself an "adverse employment action," citing Colwell v. Rite Aid Corp., 602 F.3d 495 (3d Cir. 2010). While the panel majority allows that this might be the case under some fact scenarios, here the panel majority concludes that the county did not cut her overall compensation, "did not fire her or make any other changes in her employment status."

The panel then briefly addresses two other assignments of error. It holds that (1) the district court did not abuse its discretion in rejecting a constructive-discharge instruction (because the plaintiff supposedly neither alleged such a claim, nor preserved it in the pre-trial order); and (2) any error in the undue-hardship instruction was harmless, because the jury never reached the defense (having disposed of the claim on the merits).

In dissent, Judge Jerome Holmes would hold that the circuit's prior authority (C.R. England, Inc. and several other cases) controls the question, and that the jury should not have been instructed that it had to find an adverse employment action. The dissent also documents that this outcome is also supported by the EEOC Enforcement Guidance, legal scholarship in the field, and the persuasive authority of other circuits.

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