Anyone care to explain why it is that the Eleventh Circuit so often consigns its even mildly pro-employee decisions to “do not publish” purgatory? Another unpublished decision, from the Ninth Circuit, gives second life to an ADA claim. Also, an idea for gift-giving — courtesy of the Workplace Prof Blog — and wishing you a peaceful holiday season!
Woodruff v. school Bd. of Seminole County, No. 08-11798 (11th Cir. Dec. 19, 2008): The plaintiff, a Pre-K assistant, filed four claims against her employer under the ADA — retaliation, harassment, reasonable accommodation and straight discrimination. The Eleventh Circuit panel affirms summary judgment on the first three claims but returns the discrimination claim for trial.
“We conclude from the record that the district court erred, in part, in granting the school Board’s motion for summary judgment on Woodruff’s claim regarding her requests for transfer because, although it properly found that the failure to hire her for the Secretary position was not discriminatory, it erred in finding that she was not qualified for the non-sedentary positions she sought. First, although she was qualified for the Secretary position, the school Board’s decision not to hire her for that position was not discriminatory because undisputed evidence showed that it was a promotion from her position as Pre-K Assistant.
“However, evidence created a genuine issue as to whether Woodruff was qualified for the numerous other non-sedentary positions she sought. Although medical evidence showed that she was limited to a desk job, other evidence showed that she could have performed the functions of the non-sedentary jobs she sought. For example, evidence showed that she continued to work in a nonsedentary job, the Pre-K Assistant position, without objection from the school Board, despite doctors’ notes recommending a desk job. Other evidence showed that the positions she sought were less physically demanding than her Pre-K Assistant position, she thought that she could meet the physical requirements of the new jobs she sought, and the school Board deemed her ‘minimally qualified’ and cleared her to interview for several of the non-sedentary positions she sought. Therefore, we conclude that the district court erred when it found that Woodruff did not present a prima facie case of discrimination in this regard because she was not a qualified individual for non-sedentary positions.”
Linder v. Potter, No. 07-35496 (9th Cir. Dec. 22, 2008): Here, the district court overstated the requirements for demonstrating a genuine issue of material fact about whether the employee suffered a substantial limitation in one or more major life activities. This unpublished order reverses summary judgment and holds:
“Linder provided sufficient evidence of substantiality of impairment to survive a summary judgment motion. Linder’s doctor, Dr. Smith, noted that Linder suffered from intrusive flashbacks and an inability to solve workplace problems. Dr. Smith rated the severity of Linder’s symptoms of ‘recurrent recollection’ and ‘reliving trauma’ a 10/10 and 8/10 respectively on the pertinent diagnostic scale. Further, Linder told a different doctor that difficulties at work preoccupied him and interfered with his conscious thought about three to five times a day, causing ‘angry and depressive ruminations that would last around fifteen to twenty minutes.’
“This evidence, in the context of Linder’s other medical evidence and his own statements concerning the effect of his limitations, create a genuine issue of material fact as to whether his limitations [in thinking and concentrating] are substantial.”
Friedman Publishes Biography of Judge Wisdom: Workplace Prof Blog notes the recent publication of Joel Friedman (Tulane), “Champion of Civil Rights: Judge John Minor Wisdom” (LSU Press 2008). When this arrives at my local book monger, I definitely plan on picking it up. This man is (or ought to be) an inspiration to anyone involved or interested in the history of U.S. civil rights. I encountered him only once in life: sitting by designation in a Seventh Circuit oral argument of an ERISA case argued by our office.
I plan to slow down or suspend the blog for the rest of the year. Thanks for your support. Be back full-time in 2009!