ADA Accommodation Claim by Janitor Who Alleged She Had a Sensitivity to Cleaning Products Is Rejected

The plaintiff in this case worked for Knight Facilities Management-GM, Inc., as a janitor for several years, during which time she alleged that she developed a sensitivity to cleaning products.

After she went to her family physician with symptoms, the doctor recommended that the plaintiff miss work for a week and wear a mask when cleaning bathrooms. When the plaintiff returned to work, she gave Knight Facilities a letter from her physician that instructed Knight Facilities to restrict her bathroom chemical exposure to a maximum of two hours per eight-hour day and to make an effort to ventilate the area. Knight Facilities complied and assigned four of the plaintiff’s bathrooms to another janitor. Still, the plaintiff contended that her symptoms returned within two hours of working.

The plaintiff then submitted a note from her physician that declared: “no exposure to cleaning solutions.” Knight Facilities’ human resources manager contacted the physician and explained that it had no work available for the plaintiff within the restriction, and sent the doctor a letter asking the doctor to “review the cleaning solution fact sheet detailing the exposure limits of each chemical she is being exposed to and the job description detailing what is required of her and based on this information provide updated restrictions.” After reviewing the letter, the physician did not change the plaintiff’s restrictions and continued to recommend that she “be away from [the cleaning solutions] altogether.”

Because the plaintiff would be exposed to cleaning solutions in any of the buildings cleaned by Knight Facility regardless of task given that the solutions were airborne, the company told the plaintiff that there was no work available for her within the restrictions. It also refused to allow her to work her route using a respirator, concluding that the use of a respirator did not meet her restriction and, even if it did, it would cause an undue hardship because Knight Facilities would have to buy respirators for all of the other janitors.

Knight Facilities subsequently fired the plaintiff and she sued, arguing that Knight Facilities had violated the Americans with Disabilities Act (ADA) by failing to provide her with reasonable accommodations.

The district court granted summary judgment in favor of Knight Facilities on all claims, and the plaintiff appealed.

The US Court of Appeals for the Sixth Circuit affirmed. In its decision, the circuit court found that neither of the two accommodations proposed by the plaintiff – eliminating restrooms on her cleaning route or providing her with a respirator – was objectively reasonable because they both failed to comply with the physician-mandated restriction of “no exposure to cleaning solutions.”

The Sixth Circuit explained that eliminating the bathrooms on the plaintiff’s route or assigning her to a new route without bathrooms were not reasonable accommodations because her job still would have involved exposure to cleaning chemicals. Likewise, the circuit court continued, there was no evidence that working with a respirator would have complied with the plaintiff’s physician’s restriction because the restriction was not limited to exposure to breathing fumes from chemical solutions. The restriction was “no exposure to cleaning solutions” and, the appellate court reasoned, that would include “using or touching cleaning solutions.” The Sixth Circuit concluded by declaring that the plaintiff’s personal belief that she could handle cleaning solutions as long as she was wearing a respirator was “irrelevant.” [Horn v. Knight Facilities Management-GM, Inc., 2014 U.S. App. Lexis 3797 (6th Cir. Feb. 25, 2014).]

Disability Insurer May Offset Amount of Social Security Disability Payments Received by Employee and His Children, Court Rules

The employee in this case participated in a group long term disability insurance plan offered by his employer, Benton County, Oregon, through Unum Life Insurance Company of America. During the course of his employment, the employee became unable to work and filed a disability claim. Unum approved the claim and the employee began receiving benefits.

Under the Unum policy, any Social Security disability income (SSDI) the employee or his family received from the Social Security Administration (SSA) reduced the employee’s monthly disability benefits payable by Unum. The policy also permitted Unum to deduct an estimated SSDI amount from the employee’s monthly payments while the final determination of his eligibility for SSDI was pending.

The employee applied for and was denied SSDI; he appealed that decision. In the meantime, the employee signed a reimbursement agreement with Unum that deferred the estimated SSDI deduction under the policy and allowed the employee to receive full monthly payments from Unum until a final determination was made by the SSA. Under the agreement, the employee was required to provide Unum with a copy of any final decision made by the SSA regarding his SSDI benefits within 48 hours of receiving notice and to repay Unum any overpayment that resulted from his receipt of SSDI benefits.

The employee eventually was awarded SSDI benefits. He received an award letter that stated that he would receive a check for $122,913.75; he provided the letter to Unum.  Unum believed that the employee’s children would receive family SSDI benefit payments, which would be subject to overpayment requirements under its agreement with the employee. Unum did not know the amount of SSDI payments that would be made to the employee’s children and asked the employee several times to provide copies of the award letter indicating the amount of family SSDI benefits that his children had received. After the employee failed to respond to Unum’s requests, Unum, pursuant to terms of the agreement, estimated that the employee and his children had received an SSDI payment amount of $186,464.33. Unum began recouping this overpayment amount by withholding the employee’s monthly disability payments and applying them toward the overpayment balance. Unum also sued the employee to recover the overpayment.

The court granted Unum’s motion for summary judgment regarding the amount that the employee owed Unum, holding that the benefits paid to the employee’s children should be included in the overpayment amount. The court then rejected the employee’s contention that Unum had inappropriately attempted to collect SSDI benefits that were paid to his children rather than to himself, ruling that the employee owed Unum “the amount awarded to his children” as family SSDI benefits.

Moreover, the court pointed out, Unum had attempted to contact the employee after receipt of the award letter to ascertain whether the SSDI benefits had been received. Due to the employee’s “failure to timely provide Unum with information regarding the receipt of back payments from the SSA,” the court ruled that Unum had not acted in bad faith by eventually exercising its authority under the agreement to withhold the employee’s benefit payments and to apply the withheld amounts to offset his SSDI overpayment. [Unum Life Ins. Co. of America v. Martin, 2014 U.S. Dist. Lexis 36483 (D. Ore. March 19, 2014).

Prevailing Employee Entitled to Award of Attorney’s Fees, Circuit Court Rules

While employed at FleetBoston Financial Corporation, the plaintiff in this case underwent surgery to replace his aortic valve. An unanticipated side effect of the surgery was that the plaintiff could feel and hear the compressions of the prosthetic valve with each beat of his heart. Indeed, the sounds were audible to persons sitting in the same room as the plaintiff.  Although the surgery was a success, the noise from the prosthetic valve caused the plaintiff a great deal of anxiety, which rendered him unable to perform his job. Consequently, the plaintiff submitted a claim for disability benefits to Liberty Life Assurance Company of Boston, the administrator of Fleet’s long term disability (LTD) plan. 

In evaluating the plaintiff’s claim for LTD benefits, Liberty requested medical records and information about his physical condition, and arranged for an independent medical examination by a cardiologist. The cardiologist concluded that, from a cardiology standpoint, the valve replacement had been a success and that, physically, the plaintiff could return to work. He noted, however, that the plaintiff’s complaints “should be evaluated by an expert in the field of psychology.”

Liberty engaged its own consulting psychiatrist to review the plaintiff’s claim. Although the consulting psychiatrist reviewed the plaintiff’s medical file and records, he did not speak to the plaintiff’s psychiatrist or examine the plaintiff.  On the basis of its consulting psychiatrist’s recommendation, Liberty denied the plaintiff’s claim for LTD benefits.

The plaintiff exhausted the internal appeals process and then sued Liberty under the Employee Retirement Income Security Act of 1974 (ERISA). The district court granted summary judgment in favor of the plaintiff, but denied him an award of attorney’s fees. Both parties appealed and the dispute reached the US Court of Appeals for the Second Circuit.

First, the circuit court agreed with the district court that Liberty’s denial of LTD benefits was arbitrary and capricious because Liberty had “ignored substantial evidence” from the plaintiff’s treating physicians that he was incapable of performing his current occupation, while failing to offer any reliable evidence to the contrary. It noted that Liberty had failed to order anything more than a “consultative review” by an in-house psychiatrist of the plaintiff’s records, and that the in-house psychiatrist had never met with the plaintiff or his treating psychiatrist.

Then, the circuit court decided that the district court had erred by denying the plaintiff’s request for attorneys’ fees on the basis that the plaintiff had “failed to show any bad faith by Liberty’s administrator in making its LTD benefits determination.” 

The Second Circuit explained that, under ERISA, a court could award a reasonable attorney’s fee to a plaintiff who had obtained “some degree of success on the merits” on that basis alone.  The Second Circuit added that if a court chose to consider factors other than a plaintiff’s “success on the merits” in assessing a request for attorney’s fees, it would have to consider these factors:

1. the degree of the opposing parties’ culpability or bad faith;
2. the ability of the opposing parties to satisfy an award of attorney’s fees;
3. whether an award of attorney’s fees against the opposing parties would deter other persons acting under similar circumstances;
4. whether the parties requesting attorney’s fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and
5. the relative merits of the parties’ positions.

The circuit court then declared that, in this case, there was “no question” that the plaintiff, as the prevailing party, was eligible for an award of attorney’s fees. Indeed, it stated, in light of the ERISA fee provision’s “statutory purpose of vindicating retirement rights,”  granting a prevailing plaintiff’s request for fees was “appropriate” absent some particular justification for not doing so. 

It then ruled that although the district court had discretion to consider whether the factors listed above provided a particular justification for denying an award of attorney’s fees to the plaintiff, the district court had misapplied that framework by denying attorney’s fees on the sole basis that Liberty had not acted in bad faith. According to the circuit court, “a party need not prove that the offending party acted in bad faith” in order to be entitled to attorney’s fees.  Moreover, it continued, the concepts of “bad faith” and “culpability” were distinct, and either one could satisfy the first factor. 

The circuit court explained that the district court had not considered culpability and had not addressed the “relative merits” of the parties’ positions. In the circuit court’s opinion, by “inadequately addressing these two important factors and, instead, treating the absence of bad faith as the most salient factor, the [d]istrict [c]ourt committed an error of law, and, therefore, ‘abused its discretion.'”

In reviewing the record itself, the Second Circuit found no “particular justification” for denying the plaintiff’s request for attorney’s fees, and it ruled that awarding attorney’s fees in this case furthered the policy interest in vindicating the rights secured by ERISA. Accordingly, the appellate court vacated the district court’s judgment insofar as it denied the plaintiff an award of attorney’s fees, and it remanded the case to the district court with directions to award the plaintiff reasonable attorney’s fees in an amount to be calculated on remand. [Donachie v. Liberty Life Assurance Co. of Boston, 745 F.3d 41 (2d Cir. 2014).]

Employee’s Inability to Sit for a Prolonged Time May Constitute a Disability, Second Circuit Decides

The plaintiff in this case worked for Banco Industrial de Venezuela, C.A. (BIV), as a senior letters of credit specialist, a largely sedentary job that involved organizing letter of credit applications, ensuring that certain documents complied with various standards, and issuing letters of credit.

Nearly six months into her job, the plaintiff fell on a sidewalk and hurt her back severely enough that she could no longer sit for long periods of time. Her injury prompted her to stand for portions of the workday and to ice her neck and back. After diagnosing the plaintiff with lumbosacral and cervical sprains and several spinal disc herniations, her doctors directed her to avoid sitting for prolonged periods.

Soon afterward, the plaintiff requested an ergonomic chair from BIV’s operations manager, which she did not receive. She complained to BIV’s compliance officer that the bank had failed to accommodate her and she announced plans to take a leave of absence without a specific return date.

The bank subsequently fired her and she sued the bank under the Americans with Disabilities Act (ADA), alleging that the bank had discriminated against her by ignoring her requests for reasonable accommodation of her back injury. The district court granted summary judgment in favor of the bank on the plaintiff’s disability discrimination claim, concluding that the inability to sit for a prolonged period was not a disability under the ADA, and the plaintiff appealed to the US Court of Appeals for the Second Circuit.

In its decision vacating the district court’s judgment, the Second Circuit noted that the ADA defined a disability as a “physical or mental impairment that substantially limits one or more major life activities of such individual,” and that if a plaintiff offered evidence that the plaintiff could not sit for a prolonged period of time, the plaintiff “may well be disabled under the ADA,” depending on the plaintiff’s specific factual circumstances.

Accordingly, having clarified that the inability to sit even for a prolonged period of time may be a disability depending on the totality of the circumstances, the circuit court remanded the case to the district court to determine if the record reflected a genuine dispute of fact as to whether the plaintiff’s inability to sit for a prolonged period of time constituted a “substantial limitation of a major life activity” for purposes of the ADA. [Parada v. Banco Industrial de Venezuela, C.A., 2014 U.S. App. Lexis 5497 (2d Cir. March 25, 2014).]

Employee Handbook Did Not Contain Enforceable Agreement to Arbitrate, Court Decides

Raymours Furniture Company, Inc., asserted that a sales associate, through her attorney, had contacted Raymours and claimed that Raymours had discriminated against her on the basis of disability by transferring her from its retail showroom in Cherry Hill, New Jersey, to its retail showroom in Deptford, New Jersey, knowing that the sales associate was incapable of working in the Deptford showroom due to her medical conditions.

Raymours added that the sales associate also claimed that Raymours had retaliated against her because of her alleged complaints of discrimination and that her transfer to the Deptford showroom constituted constructive discharge. In addition, according to Raymours, the sales associate had demanded $150,000 to settle her claims of discrimination, retaliation, and constructive discharge.

Raymours filed a demand for arbitration with the American Arbitration Association as to the sales associate’s claims, and it notified the sales associate of its arbitration demand. Raymours also filed a petition in the US District Court for the District of New Jersey to compel arbitration of the sales associate’s claims.

In its petition to the court, Raymours argued that the sales associate’s underlying claims were subject to an enforceable arbitration agreement contained in the Raymours employee handbook, but that the sales associate had notified Raymours that she refused to honor that agreement.

The court denied Raymour’s motion, finding that there was no enforceable arbitration agreement between the parties.

The court decided that arbitration agreement in the employee handbook was not enforceable because the handbook contained an “unqualified disclaimer of creating any terms or conditions of employment” and because Raymour retained the sole discretion to change the handbook’s provisions without notice.

The court pointed out that the first page after the table of contents in the handbook contained the following statement:

THIS HANDBOOK IS NOT A CONTRACT OF EMPLOYMENT.

All associates of the Company are employed on an “at-will” basis, which means that both you and the Company have the right to terminate employment at any time, for any reason or no reason, with or without cause and with or without notice.
Nothing in this Handbook, or any other Company practice or communication or document, including benefit plan descriptions, creates a promise of continued employment, employment contract, term or obligation of any kind on the part of the Company. No manager or associate of the Company has the authority to make promises or statements to the contrary.

This Handbook contains the rules, procedures, policies and practices of Raymour & Flanigan. This Handbook is an overview that is intended to serve as a useful reference guide for you and is intended for informational purposes only.

(Emphasis in original.)

The court pointed out that there was no exception in the general disclaimer for the arbitration program that was described many pages later in the handbook, adding that the handbook contained provisions that were “confusing and contradictory.” It noted that the second paragraph of the handbook section addressing the arbitration program stated:

This Program is an essential element of your continued employment relationship with Raymour & Flanigan and is a condition of your employment. However, it is not a contract of employment and does not change your status as an at-will employee of Raymour & Flanigan.

(Emphasis in original.)

In the court’s view, given this language, the sales associate could not have agreed “clearly and unambiguously to arbitrate.” Simply put, the court decided, Raymours could “not in a single, voluminous document, which bears disclaimer that nothing therein creates a contract of employment, seek to enforce certain provisions while regarding others as unenforceable without clear notice to that effect and unambiguous agreement by [the sales associate].”

The court concluded that Raymours could have separately distributed information regarding the arbitration program or that it could have provided a separate acknowledgment form making clear the parties’ intent to be bound by the arbitration program. Having failed to do so, and in light of the bolded disclaimer on the first page of the handbook, the sales associate had not clearly and unambiguously agreed to the arbitration program, the court ruled. It therefore denied Raymours’ motion to compel arbitration and it granted the sales associate’s motion to dismiss the petition for failure to state a claim. [Raymours Furniture Co., Inc. v. Rossi, 2014 U.S. Dist. Lexis 1006 (D.N.J. Jan. 2, 2014).]

Reprinted with permission from the July 2014 issue of the Employee Benefit Plan Review – From the Courts.  All rights reserved.