Friday, March 13, 2015

Sweeping ADA Ruling By The Fourth Circuit Should Make Employers Anxious

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.