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An Employer's Roadmap For Defending ADA Claims
Law360, New York (July 19, 2013, 12:51 PM ET) -- In 2008, Congress expanded the
definition of a “disability” under the Americans with Disabilities Act Amendments Act
(ADAAA), thereby reducing the effectiveness of one of an employer’s best defenses to a
disability claim: that the employee was not disabled.[1] The relaxed definition of disability
places a plaintiff-employee one-third of the way home on proving a prima facie case of
disability discrimination and avoiding summary judgment.
A prima facie case of disability discrimination under the ADAAA requires that the employee
be a disabled person as defined by the ADAAA; be qualified, with or without reasonable
accommodation, to perform the essential functions of the job; and suffer discrimination by
an employer or prospective employer because of that disability.[2]
In many cases, with disability nearly assumed, an employer’s best defense is proving that
the plaintiff is not qualified for the position. In order to raise such a successful
“unqualified” defense, however, the employer must be able to show that the employee is
unable to perform the essential functions of the job, with or without a reasonable
accommodation.[3] The recent case, Hawkins v. Schwan’s Home Service Inc.[4] provides a
case study in how to preserve, raise and present the “not qualified” defense.
Plaintiff David Hawkins worked for Schwan’s Home Service Inc., a company which sells and
delivers frozen food product to residential customers. Hawkins had worked for Schwan’s
for 25 years.
In 2003, he became a facilities supervisor at one of Schwan’s sales and distribution
depots. He was responsible for ensuring the smooth operation of the depot, i.e., making
sure that the Schwan’s delivery trucks were loaded with the right products and be in good
repair for travel on the road.
Schwan’s delivery trucks were all U.S. Department of Transportation-regulated vehicles,
and therefore, Schwan’s required all of its facilities supervisors to have a valid DOT
medical examination certification since facilities supervisors were called on from time to
time to operate the route trucks.
Hawkins had heart problems. He had a pacemaker. He was on a number of heart
medications. After Hawkins returned from a hospital visit and told fellow employees that if
they “found him passed out on the floor of the freezer,” they should stick a pill under his
tongue, Schwan’s required him to complete a medical examination by a neutral medical
examiner.
Hawkins completed the medical questionnaire before the physical examination; after the
doctor reviewed the completed questionnaire, he declined to physically examine Hawkins
and told him that based on Hawkins’ own admissions in the questionnaire, he was not DOT
-medically qualified. Schwan’s placed Hawkins on administrative leave and gave him 30
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days to either obtain DOT medical qualification or find a non-DOT position within the
company. Hawkins resigned the next day.
Following an Equal Employment Opportunity Commission investigation and a “probable
cause” determination, Hawkins filed his lawsuit in the United States District Court for the
Western District of Oklahoma, alleging disability discrimination and retaliation against his
former employer, Schwan’s, under the ADAAA.
The district court concluded that Hawkins had met his prima facie burden of showing that
he was a disabled person under the ADAAA. The district court also determined that
Schwan’s had essentially admitted that Hawkins’ heart problems (his disability) played a
prominent part in its decision to place him on administrative leave. Therefore, the issue to
be resolved by the court was whether Hawkins was a “qualified individual” under the
ADAAA.
In order to determine if Hawkins was a qualified individual, the district court needed to find
that he could complete the essential functions of his job. Schwan’s and Hawkins hotly
disputed whether the DOT medical qualification was an essential function of the facilities
supervisor position.
Hawkins claimed that driving a Schwan’s truck and obtaining DOT qualification was not an
essential function. He further argued that Schwan’s failed to accommodate his request for
a reasonable accommodation — that he not be required to drive a route truck — then
retaliated against him and ultimately terminated him because of his medical condition and
because he requested an accommodation. Although the job description for facilities
supervisors did not list “driving” as an essential function, it did require that all facilities
supervisors be DOT-medically qualified.
The district court’s opinion mirrored that of circuit courts across the country[5]: The court
carefully reviewed Schwan’s written job description and concluded that being DOT-
medically qualified was an essential function of Hawkins’ job as facilities supervisor.
The court’s opinion creates a virtual roadmap for an employer’s successful defense of a
disability claim. A job description is often an employer’s first line of defense because it is
one of the employer’s best chances to clearly and unequivocally show the court what it
considers to be the essential functions of the job.
Notably, a job description often predates the dispute, lending credibility to the employer’s
description of the job’s essential functions. A well-written position description appropriately
describes the position and sets out all its necessary requirements and important duties.
Next, an employer can support the legitimacy of its job description through performance
evaluations. A performance evaluation can either support or undermine the employer. If an
employee is failing to complete the essential functions of the job, but the performance
report reads “employee meets expectations,” an employer may be unable to later convince
a court to adopt its definition of the job’s essential duties.
On the other hand, performance evaluations showing an employee’s deficiencies are
helpful in establishing the plaintiff’s lack of qualifications and reinforce the appropriateness
and accuracy of the employer’s job description.
Generally, an employer is entitled to deference in defining the essential functions of a
position.[6] In fact, in the Hawkins case, the court reiterated throughout its order that it
was required to “weigh heavily the employer’s judgment regarding whether a job function
is essential” and recognized that it was not in a position “to second guess the employer or
to lower company standards.”[7] Employers should be careful not to lose their granted
judicial deference with inaccurate job descriptions or performance reviews that are
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inconsistent with those descriptions.
A good job description coupled with performance evaluations may later become evidence
that the employer believed that the plaintiff was unable to complete the essential functions
of the job. But with a little digging, it is possible that the plaintiff’s own statements could
show that the plaintiff believed he or she was personally unqualified.
Applications for Social Security disability insurance (SSDI), workers’ compensation claims,
long-term or short-term disability applications or an employee’s own doctor’s notes can
show that the employee cannot perform a job’s “essential functions.” In particular, an
application for disability benefits may result in a court judicially estopping a plaintiff from
pursuing a disability discrimination claim.
The U.S. Supreme Court took up the judicial estoppel issue in Cleveland v. Policy
Management Systems Corp.[8] In Cleveland, the court held that a plaintiff’s pursuit of
SSDI was not an automatic bar to an ADA claim. A plaintiff, however, “cannot simply
ignore the apparent contradiction that arises out of the earlier SSDI total disability
application. Rather, [the plaintiff] must proffer a sufficient explanation” for the apparent
inconsistency in order to avoid summary judgment.[9]
The Hawkins case again provides a roadmap for employers. There, the parties battled in
order to obtain Hawkins’ Social Security disability documents. The Social Security
Administration strenuously protested producing the file. And Hawkins also fought
vigorously against its introduction into evidence for good reason.
Once produced, the file revealed that less than 90 days before he resigned from Schwan’s,
Hawkins filed a disability claim, swearing that because of his disability, he was unable to
perform any work for any employer. In his disability application, Hawkins swore that he
could not “work right now” and that he has “not been able to work for 5 weeks.”
Nearly 18 months later, in his brief to the Appeals Council of the Social Security
Administration, Hawkins further stated that he “would have difficulty with sustained work.”
Hawkins claimed that he “was incapable of performing all duties necessary for any type of
substantial gainful activity.”
The court concluded that Hawkins’ statements were inconsistent with his position that he
was a “qualified individual” and shifted the burden to Hawkins under the Cleveland
framework to proffer a “sufficient explanation” for his inconsistent positions.
Hawkins argued that his inconsistent statements did not matter since he was not actually
awarded SSDI benefits and in an affidavit, swore that he has not taken inconsistent factual
positions. The court apparently found neither explanation convincing and ruled that his
affidavit was unpersuasive and conclusory.
The court ultimately reasoned that Hawkins failed to explain his inconsistent positions as
required by Cleveland, concluding that judicial estoppel applied to his Social Security
application and that his claims were barred in the civil lawsuit. A determination from the
Social Security Administration remains pending, but the court found Hawkins’ sworn
representations that he was completely disabled were a death blow to his claim that he
could have performed his job with the reasonable accommodation of “not driving.”
This case highlights the importance of acquiring any and all disability application
documents in defending ADAAA claims. The court’s order focuses on the factual claims set
forth by Hawkins in his Social Security application and in his ADAAA case.
When considering whether to apply judicial estoppel, circuit courts occasionally look to
such factors as whether “1) a party's later position is clearly inconsistent with its earlier
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position; 2) a party has persuaded a court to accept that party's earlier position, so that
judicial acceptance of an inconsistent position in a later proceeding would create the
perception that either the first or second court was misled; and 3) the party seeking to
assert the inconsistent position would derive an unfair advantage if not estopped.”[10]
In this case, the court focused primarily on the first factor, noting that the second factor
was largely inapplicable because Hawkins’ Social Security claim had yet to succeed.
Interestingly, the court linked the third factor to the first factor.
The court agreed that Hawkins had not yet acquired an “unfair advantage” because up to
this point, he had been unable to “double dip,” i.e., acquire benefits under Social Security
and present a successful ADAAA claim but noted that if Hawkins had succeeded on his
ADAAA claim, “he would be receiving benefits to which, based on his own representations,
he is not entitled.”
In other words, under the court’s reasoning, a plaintiff may gain an unfair advantage by
simply presenting inconsistent positions that could result in relief that is inappropriate due
to the plaintiff’s own inconsistent statements. More simply, a plaintiff does not need to
succeed in acquiring Social Security benefits in order to “derive an unfair advantage.” The
plaintiff’s own inconsistent statements show that the plaintiff seeks to gain an unfair
advantage and acquire benefits to which he or she is not entitled.
With the erosion of the defense that the employee is not disabled, employers should
ensure that they are prepared to present evidence concerning whether they believe the
employee is a qualified individual. This includes evidence regarding the essential functions
of the job. A good job description is an excellent place to start.
Second, an employer should look for evidence that the employee believes that he or she is
unqualified. This includes reviewing any applications for workers’ compensation or
disability insurance. And it is important to review the terms of any disability policy.
For example, in Macfarlan v. Ivy Hill SNF LLC,[11] the Third Circuit found that a former
employee’s claim for wrongful termination under the Family Medical Leave Act was
judicially estopped in part because at the time he requested to return to work, he was
receiving short-term disability insurance. The circuit noted that the coverage under which
the plaintiff received his insurance stated, “[The insurance company] provides you with
benefits while you are unable to perform the material duties of your regular occupation.”
With the advent of the ADAAA and the expansion of the definition of a disability, an
employer’s best chance to defeat a disability discrimination claim may require the
employer to show that the plaintiff was not a qualified individual. The Hawkins case
provides a model for raising the “unqualified” defense and defending an ADA claim in an
ADAAA era.
--By Alan L. Rupe, Kutak Rock LLP
Alan Rupe is a partner in the firm's Wichita, Kan., office.
Alan Rupe and Jason Janoski of Kutak Rock represented the defendant, Schwan’s Home
Service Inc., in this case.
The opinions expressed are those of the author(s) and do not necessarily reflect the views
of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates.
This article is for general information purposes and is not intended to be and should not be
taken as legal advice.
[1] Knutson v. Schwan's Home Serv., Inc., 711 F.3d 911, 914 (8th Cir. 2013 (noting
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ADAAA relaxed the earlier ADA standards for determining disability); Fleishman v. Cont'l
Cas. Co., 698 F.3d 598, 606 (7th Cir. 2012) (same).
[2] EEOC v. Picture People, Inc., 684 F.3d 981, 985 (10th Cir. 2012).
[3] Davidson v. Am. Online, Inc., 337 F.3d 1179, 1190 (10th Cir. 2003).
[4] Hawkins v. Schwan’s Home Service, Inc., No. CIV-12-0084-HE, Slip. Op. at 9, 15, 16
(W.D. Okla. May 28, 2013).
[5] See e.g., Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1238 (9th Cir.
2012); Mulloy v. Acushnet Co., 460 F.3d 141, 152 (1st Cir. 2006); Guerra v. United Parcel
Serv., Inc., 250 F.3d 739 (5th Cir. 2001).
[6] See 29 C.F.R. § 1630.2; E.E.O.C. v. Picture People, Inc., 684 F.3d 981, 985 (10th Cir.
2012).
[7] Hawkins v. Schwan’s Home Service, Inc., No. CIV-12-0084-HE, Slip. Op. at 9, 15, 16
(W.D. Okla. May 28, 2013).
[8] Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S. Ct. 1597, 143 L. Ed. 2d
966 (1999).
[9] Cleveland, 526 U.S. at 806.
[10] See Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1209 (10th Cir.
2011); DeRosa v. Nat'l Envelope Corp., 595 F.3d 99, 103 (2d Cir. 2010); Baughman v.
Walt Disney World Co., 685 F.3d 1131, 1133 (9th Cir. 2012).
[11] 675 F.3d 266, 273 (3d Cir. 2012).
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