The Fifth Circuit recently reversed a trial court’s dismissal of an ADA suit against an employer that revoked an offer of employment to an applicant who claimed to have been disabled. The employer rescinded the employment offer after it learned the employee had a rotator cuff injury that prevented him from lifting his right arm above his shoulder. This case, Cannon v. Jacobs Field Services North America, Inc., __ F.3d __ (5th Cir. 2016), sheds light on what constitutes a “disability” and what evidence is needed to prove that an employee is “qualified” under the 2008 amendments to the ADA.
Michael Cannon was a mechanical engineer with 20 years of experience who applied for a job with Jacobs Field Services (JFS) as a field engineer at a Colorado mining site. JFS offered him the job and then required him to undergo a pre-employment physical. During the physical, it was revealed that unsuccessful surgery in 2010 to repair a rotator cuff rendered him unable to lift his right arm above his shoulder. Cannon also revealed that he had previously taken the prescription Ultram, an opioid, but that he was no longer taking it. He passed a drug test administered during the physical. The doctor ultimately cleared Cannon for the position, with the following accommodations: (1) no driving company vehicles; (2) no lifting, pushing, or pulling more than ten pounds; and (3) no working with his hands above shoulder level.[s2If !current_user_can(access_s2member_ccap_personnel)]Read the rest of this article.[/s2If] [s2If current_user_can(access_s2member_ccap_personnel)]
After receiving the doctor’s accommodations, a technical services manager at the job site determined that Cannon would not be able to meet the project needs and required job duties because the job required an employee capable of driving, climbing, lifting, and walking. A representative from the JFS Occupational Health Department, however, later told Cannon that JFS needed him to clarify whether (1) he could climb a ladder and (2) was still taking Ultram. At that time, there was no indication that the job offer had been rescinded, and Cannon took the requests for additional information to mean that satisfactory responses would eliminate the concerns. Cannon provided the requested information, submitting documentation from his doctor stating that he was “specifically cleared for climbing vertical ladders and maintaining 3–point contact with either arm” and was being weaned from Ultram.
No one from JFS followed up with Cannon to discuss the doctor’s notes he had submitted. Instead, during a call on July 20, the same day Cannon submitted the clearance forms from his doctor, JFS informed Cannon that it was rescinding the offer based on his inability to climb a ladder. Cannon continued to try to prove to JFS that he was capable of climbing a ladder in an effort to have his offer reinstated—sending a video of himself climbing a ladder while maintaining 3–point contact. JFS did not respond. Cannon made additional attempts to try to contact JFS and discuss his injury and limitations. These efforts were unsuccessful.
Cannon filed a complaint with the EEOC. The EEOC concluded that JFS engaged in disability discrimination because: (1) JFS failed to engage in the interactive process with Cannon; (2) providing Cannon with the requested accommodations would not have imposed an undue hardship on JFS; and (3) JFS did not demonstrate that Cannon would have posed a “direct threat to himself or to his coworkers” as a field engineer. Cannon later filed this lawsuit.
The district court granted summary judgment in favor of JFS. It found that Cannon’s rotator cuff injury did not render him disabled under the ADA, and, even if he were disabled, he was not qualified for the field engineer position. The district court did not specifically address a failure-to-accommodate claim that the parties had briefed. Cannon appealed.
The Employee’s Burden of Proof
The main issues on appeal were whether Cannon could pursue his lawsuit because he produced sufficient evidence that he had a “disability” and whether he was “qualified” for the position, as those terms are defined by the ADA. To prove an ADA claim, Cannon first had to show that: (1) he had a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subjected to an adverse employment decision on account of his disability. Upon making that showing, a presumption of discrimination arises, and the employer must “articulate a legitimate non-discriminatory reason for the adverse employment action.” The burden then shifts to the plaintiff to produce evidence from which a jury could conclude that the employer’s articulated reason is was not true and that discrimination was the real reason.
Was The Shoulder Injury a Disability Under The ADA?
Under the ADA, an individual suffers from a “disability,” if that individual has “a physical … impairment that substantially limits one or more major life activities.” The trial court had concluded that Cannon was not disabled because his “injured shoulder did not substantially impair[ ] his daily functioning.” The appeals court, however, looked to the ADA Amendments Act of 2008, which “make it easier for people with disabilities to obtain protection under the ADA.” According to the court of appeals, Congress broadened the definition of “disability.” The inquiry under the new “more relaxed standard” is whether Cannon’s impairment substantially limited his ability “to perform a major life activity as compared to most people in the general population.” The court of appeals held that there was “ample evidence” to support a conclusion that Cannon’s injury qualified as a disability. The ADA includes “lifting” in its list of major life activities. Given that lifting and reaching are “major life activities,” Cannon’s shoulder injury is a qualifying disability if it “substantially limits” his ability to perform such tasks. Cannon and his doctor both stated that he is unable to lift his right arm above shoulder level and that he has considerable difficulty lifting, pushing, or pulling objects with his right arm. In addition, the limitations posed by Cannon’s shoulder injury are what led JFS to rescind the offer.
Court Finds Employer May Have Also “Regarded” The Applicant As Having A Disability
In addition to providing evidence of a disability, Cannon also established that JFS may have “regarded” him as disabled. The appeals court explained that the ADA now covers not just someone who is disabled but also those subjected to discrimination because they are “regarded as having … an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Under this view, “unfounded concerns, mistaken beliefs, fears, myths, or prejudice about disabilities are just as disabling as actual impairments.” Evidence on this issue included an email from the technical services manager stating concerns that Cannon could not reach above his head, as well as other evidence such as the report from Cannon’s physical, support a finding that officials at JFS perceived his shoulder injury to be an impairment. The appeals court, therefore, concluded that evidence existed supporting a finding either that Cannon was “disabled” or was “regarded as” disabled.
Was The Applicant “Qualified” Despite The Disability?
To be a qualified employee, Cannon had to show that he could either (1) “perform the essential functions of the job in spite of [his] disability,” or (2) that “a reasonable accommodation of [his] disability would have enabled [him] to perform the essential functions of his job.” A function is “essential” if it bears “more than a marginal relationship” to the employee’s job. JFS contends that driving a company vehicle and climbing a ladder are essential functions of the field engineer position and argues that Cannon could not do either because of his prescription for painkillers and his rotator cuff injury.
There was disputed evidence on whether driving was an essential function of the field engineer position. Even assuming that driving is an essential function, there was sufficient evidence from which a jury could conclude that Cannon was able to perform that duty. Although company policy prohibited employees who take narcotics from operating a company vehicle, there was disputed evidence about whether Cannon was still taking the medication. On his pre-employment drug test, Cannon did not test positive for any of the substances JFS tried to detect. Although JFS had evidence of Cannon’s Ultram use after JFS rescinded the job offer, the evidence created a dispute that a jury should decide about whether Cannon could have avoided taking the medication while working for JFS.
The next essential function that JFS found disqualifying was climbing a ladder. The parties agreed that the field engineer job required the ability to climb a ladder. However, there was conflicting evidence about whether Cannon could climb the ladder with reasonable accommodation. Cannon’s doctor submitted a medical release to JFS stating that Cannon “specifically is cleared for climbing vertical ladders and maintaining 3–point contact with either arm” despite the shoulder injury. And after learning that JFS rescinded his job offer based on its belief that the shoulder injury would prevent him from climbing a ladder, Cannon submitted a video of himself climbing a ladder while maintaining 3–point contact. Cannon conceded at his deposition, however, that in the video he raised his injured arm above his shoulder in violation of his doctor’s orders. Because there was some evidence to support a finding that Cannon could perform this function, dismissal of the suit was not appropriate on this basis. According to the court of appeals, given the dispute in evidence, it would be up to a jury to decide either (1) Cannon was disabled and yet still qualified to be a field engineer for JFS. If so, revoking the offer of employment would constitute discrimination prohibited by the ADA.
Failure-to Accommodate Claim
The court of appeals also considered Cannon’s claim that JFS failed to accommodate his disability. The Court observed that although a plaintiff must usually request an accommodation to commence an interactive process that considers whether he could perform the essential functions with or without accommodation, he is excused from doing so in a situation like this one in which the employer was unquestionably aware of the disability and had received a report from its own doctor recommending accommodations. Looking at the facts in Cannon’s favor, there was little argument to be made that JFS engaged in the interactive process the law requires. It rescinded the offer almost immediately after learning of Cannon’s impairment without further exploration of his impairment or even waiting for his responses to the questions posed by the Occupational Health Department. The court of appeals held that the trial court’s pretrial dismissal of the suit was improper and returned the case to the trial court for further proceedings.
The 2008 amendments to the ADA broadened the definition of what constitutes a “disability” with the threshold issue being whether the impairment substantially limits the ability “to perform a major life activity as compared to most people in the general population.” Under the amendments, the definition of “major life activities” was expanded to include “major bodily functions.” The statute contains a non-exhaustive list of “major life activities” and “major bodily functions.” Specifically, the ADA Amendments Act provides that:
Major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Major Bodily Functions include, but are not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
The case also illustrates that a plaintiff can show he has a “disability” by providing proof that he was “regarded as” having an impairment that substantially limited a major life activity. Evidence supported the plaintiff’s contention that JFS officials perceived him to have a qualifying impairment in that they expressed concerns about his inability to lift his arm over his head, drive a car, and climb a ladder.
Other problems in the case — the employer acted too quickly to rescind the offer of employment and did not look at all of the information provided by Cannon and the doctor to determine whether Cannon could, in fact, perform the essential functions of the job with or without accommodation. As a result, the employee was allowed to pursue his lawsuit and dismissal was improper. It’s critical that employers not act too hastily when an employee is trying to establish their qualifications and appropriate accommodations. In this case, the various departments were not communicating effectively about Cannon’s efforts to prove that he was qualified and that he could perform the work with accommodations recommended by JFS’s doctor.[/s2If]