Yesterday, March 12,
2015, a panel of the 4th Circuit, in Jacobs v. N.C. Admin. Office of the Courts, reversed district court Judge Terrence Boyle of the Eastern District of North Carolina. No. 13-2212, 2015 U.S. App. LEXIS 3878 (4th Cir.
March 12, 2015) Several disability rights organizations filed as amici in
support of the plaintiff. The Court,
with Judge Floyd writing for the panel, found that a reasonable jury could have
concluded that the plaintiff had been discriminated against on the basis of her
disability (social anxiety disorder), and so overturned the district court’s
grant of summary judgment.
The plaintiff in Jacobs was a deputy clerk of the court
who allegedly suffered from social anxiety disorder. As an initial matter, the Court took judicial
notice of the American Psychiatric Association’s Diagnostic and Statistical
Manual of Mental Disorders. Quoting from
that source, the Court noted that social anxiety disorder is characterized by a
“marked and persistent fear of…social or performance situations in which [a]
person is exposed to unfamiliar people or to possible scrutiny by others.” Am.
Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders, 456 (4th ed. 2000).
As a deputy clerk, Plaintiff
had been assigned to provide customer service at the courthouse’s front
counter. This job required social
interaction with the court’s “customers”.
Plaintiff asserted that her mental illness, social anxiety disorder,
hindered her ability to perform this job.
Plaintiff requested that her disability by accommodated by reassigning
her to a role with less direct interpersonal interaction. The courthouse never responded to Plaintiff’s
request for an accommodation. Instead,
the courthouse terminated Plaintiff’s employment three weeks after she made her
request for an accommodation. Plaintiff
brought suit in the United States District Court for the Eastern District of
North Carolina, arguing that her termination violated the Americans with
Disabilities Act, as amended, 42 U.S.C. § 12101 et seq. On September 3, 2013, Judge Boyle granted summary
judgment on Plaintiff’s claim for disability discrimination in favor of the
courthouse.
The Fourth Circuit
reversed the lower court’s grant of summary judgment. While the primary thrust of the opinion deals
with the Court’s construction of the ADA, its holdings on the summary judgment
standard are equally consequential, and bear careful analysis. As an initial matter the Court, relying on
the Supreme Court’s per curiam
opinion in Tolan v. Cotton, held that
Judge Boyle had erred by “failing to consider all the evidence in the record”
when assessing the defendant’s motion for summary judgment. 134 S. Ct., 1861, 1866 (2014). The Court discusses summary judgment at length
before emphatically concluding that Judge Boyle went astray. The Court found
that Judge Boyle repeatedly drew inferences contrary to the evidence and misapplied
the summary judgment standard. For example, the Court, quoting Tolan, held that the District Court
“neglected to adhere to the fundamental principle that at the summary judgment
stage, reasonable inferences should be drawn in favor of the non-moving party.” Jacobs,
2015 U.S. App. LEXIS 3878 at *17. At another point in its opinion, the
Court found that the record, taken in the light most favorable to the plaintiff,
demonstrates just the opposite of what Judge Boyle had found. Id.
One can anticipate that the Jacobs opinion will be heavily relied upon, within
the Fourth Circuit, in opposing future summary judgment motions from the
defense in employment cases. And, most certainly, the Jacobs opinion is a strong and clear
message to the District bench in the Fourth Circuit that the standards for
summary judgment must be scrupulously followed.
The Court’s
substantive holdings are manifold, and some of the more striking are discussed
below. That said, the Court’s holding in
Jacobs is a thoroughgoing exegesis on
the Americans with Disabilities Act, and does not lend itself well to
summary. Any practitioner in this area
would be well advised to carefully review the opinion in its entirety.
1. “Interacting With Others” is a Major Life
Activity
One of Plaintiff’s
central contentions was that her social anxiety disorder substantially limited
her ability to interact with others and therefore was a disability under the
ADA AA. The defense argued that “interacting with others” is not a major
life activity. As an initial matter, the
Court noted that the EEOC had interpreted “interacting with others” as a major
life activity. See 29 C.F.R. § 1630.2(i)(1)(i). A such, the Court determined
that the defense’s argument constituted a challenge to the EEOC’s
interpretation of the ADA. Jacobs, 2015 U.S. App. LEXIS 3878 at
*22.
Applying Chevron
deference, the Fourth Circuit held that the Congress had deliberately left an
interpretive gap for EEOC to fill and found that EEOC’s interpretation was
reasonable. Id. at *23. The Court went on to note that “[f]ew activities
are more central to the human condition than interacting with others” and that “it
is certainly reasonable for the EEOC to conclude that interacting with others
[is a major life activity.” Id.
As such, while the Court’s holding is couched as deference to an agency
interpretation of the ADA, it comes near to an express holding, in its own
right, that interacting with others is a major life activity.
2. The Court Explains the Amended ADA’s
Definition of “Substantially Limits”
The defense argued
that plaintiff’s social anxiety disorder had not substantially limited her
ability to interact with others. The Court first noted that the amended
ADA had expressly rejected the need to show that the plaintiff was
“significantly restricted” in a major life activity. The Court assumed that the EEOC’s regulations,
which define a substantially limiting impairment as one that “substantially
limits the ability of an individual to perform a major life activity as
compared to most people in the general population” were reasonable. Jacobs,
2015 U.S. App. LEXIS 3878 at *24 citing 29
C.F.R. § 1630.2(j)(1)(ii). In a footnote, the Court noted that some three
percent to thirteen percent of individuals will experience social anxiety
disorder at some point in their life. Jacobs, 2015 U.S. App. LEXIS 3878 at *26
n.14. The Court relied upon this data to
establish that social anxiety disorder limits those so diagnosed “as compared
to most people in the general population.”
Id.
The Court then moved
to the evidence the defense had proffered to establish that plaintiff had not
met the “substantially limits” standard established by the EEOC. For
example, the defense asserted that the plaintiff’s social interaction on Facebook
demonstrated that she was not substantially limited in interacting with others.
The Court responded that “[a] person
need not live as a hermit in order to be ‘substantially limited’ in interacting
with others.” Jacobs, 2015 U.S. App. LEXIS 3878 at *24. The Court went on
to note that the plaintiff’s Facebook activity may constitute a “mitigating
measure” in that it could be construed as “a form of exposure therapy by which
plaintiff attempted to overcome her anxiety through social interaction that was
not face-to-face and not in real time”. Id. at *25. The Court found that, under the ADA as
amended, it was not permitted to consider such mitigating measure in
determining whether Plaintiff was substantially limited in her ability to
interact with others. Similarly, in a
footnote, the Court indicated that if the plaintiff, took longer than necessary
to complete her microfilming work and procrastinated in returning to the front
desk, as the defense had alleged, “this may constitute avoidant behavior
consistent with a diagnosis of social anxiety disorder.” Jacobs, 2015 U.S. App. LEXIS 3878 at *26
n.13.
3. A Temporal Proximity of Three Weeks Alone Can
Establish Causation
Three weeks had
elapsed between plaintiff’s request for an accommodation and her
termination. The Court found that “[s]uch close temporal proximity weighs
heavily in favor of finding a genuine dispute as to causation.” Id. at *30. In so holding, the Court relied on Haulbrook v. Michelin N. Am., Inc.,
which held that a twenty-one day period between request for accommodation and
the plaintiff’s termination created a genuine dispute as to causation. 252 F.3d 696, 706 (4th Cir. 2001).
4. Piling On is Proof of Pretext
The defense told the
plaintiff at the time of her termination that she was being fired for several
reasons. Thereafter, in response plaintiff’s EEOC complaint, the defense
listed yet more reasons for her termination. And, then, before Judge
Boyle, the defense came forward with, as the Court phrased it, “still more
reasons.” The Court, in the face of this piling on, stated: “Although
this constellation of justifications is not internally inconsistent, many of
the purported justifications were not raised at the time of termination,” and
thus proof of pretext. Id. at
*32.
5. The Failure to Document is Evidence of Pretext
After its remarkable
finding that multiple, consistent reasons for termination, albeit offered at
different times, could provide evidence of pretext, the Court went on to state:
“Even more striking is that no one at the [employer] documented any of
the justifications (including those raised at the time of termination) in any
way.” Id. at *32 (emphasis in original). The Court concluded that
the undocumented and uncorroborated justifications are pretextual.
6. Don’t Lie to the Court
While the Court stops
short of accusing Defendant of lying, it does recount that the “constellation”
of reasons for Plaintiff’s termination were allegedly reported to Plaintiff’s
supervisors by one Ms. English. Tellingly, the Court notes that Ms. English
testified that she had never discussed the plaintiff’s performance with the
supervisors. Id. at *32 n.16. The Court blandly states that Ms. English’s
testimony “creates a genuine dispute of fact.”
Id.
7. Those Tape Recordings Can be Devastating
Somehow, four
supervisors met with plaintiff to terminate her, and it never occurred to any
of them that the plaintiff might be recording the conversation. Indeed,
she was. And, the Court relied heavily on the actual recordings in finding that
there were numerous genuine factual disputes. Id. at *18 to *19. Fortunately
for Plaintiff, North Carolina, the state in which the conversation was
recorded, is a so-called “one-party” state, in which a conversation may legally
be recorded so long as at least one party to the conversation consents to the
recording.
8. The Court’s Articulation of an Essential
Function of the Job is Quite Helpful to Plaintiffs
The defense argued
that being able to work at the front counter was an essential function of the
deputy clerk position. The Court
disagreed. In so holding, the Court
relied on the fact that many other employees were available to work at the
front counter, and that Plaintiff’s inability to do so would not negatively
impact the office.
9. A Reasonable Accommodation May Require Job
Restructuring
The Court found that
restructuring plaintiff’s job so that she worked fewer days at the front
counter was reasonable, pointing out that this proposed accommodation did not
require the employer to increase the workload of plaintiff’s coworkers.
10. The Court Finds the Failure To Discuss
Plaintiff’s Accommodation Request Could be Found to be an Act of Bad Faith
The Court noted the
Fifth and Sixth Circuits have both held that terminating an employee without
discussing a reasonable accommodation is evidence of bad faith. Id.
at *46 citing Rorrer v. City of Stow,
743 F.3d 1025, 1040 (6th Cir. 2014); EEOC
v. Chevron Phillips Chem. Co., 570 F.3d 606, 622 (5th Cir. 2009)).
Here, three weeks after submitting her request for an accommodation, and with
no discussion of that request in the interim, plaintiff was terminated without
any discussion of her accommodation request.
11.
Conclusion
Jacobs is a remarkable, and potentially
far-reaching decision. While only time
will tell if it will create a lasting impact on jurisprudence under the ADA, it
will surely be often-cited by plaintiff’s counsel in any ADA case. Indeed, the breadth of the opinion will
likely fuel many substantial disputes for years to come. For those who, back in the day, referred to
the Fourth Circuit as the most conservative Court in the country, the Jacobs decision resoundingly acclaims
that it is a new day in Richmond.
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