Dennis Breen v. Infiltrator Systems (6th Cir. March 24, 2011), Case No. 10-5013: With the new regulations to the Americans with Disabilities Act, disability discrimination claims are increasing. In a recent ADA case, the 6th Circuit reviewed a Plaintiff's claim that his employer regarded him as disabled. Breen was employed as a manager. In January 2005, his supervisor conducted a performance review and noted that Breen needed to show improvement in his relationships with customers, employees, his attitude and do a better job of rotating inventory. In May 2005, Breen notified his supervisor that he had Hepatitis C. Although his supervisor asked if Breen needed to take a leave of absence, Breen declined. Breen noticed that his co-workers talked about his health condition and one co-worker referred to Breen as a "f----." Over the next several months, Breen's managers talked with Breen about not following its First In First Out policy. He received a written reprimand for refusing to work in the company's customer services department. Management also heard that Breen made open derogatory comments about his co-workers and told one of them that he was a "cancer." After a discussion with his managers, Breen decided to take medical leave to begin treatment for his Hepatitis C. When Breen returned to work, he was discharged. Breen sued his employer in state court under its civil rights act. After the employer removed the case to federal court, it moved for summary judgment which was granted by the district court. On appeal, Breen argued that he demonstrated that his employer "regarded" him as disabled because his co-workers made negative comments that he was gay because of his Hepatitis C. The court of appeals rejected this argument because such comments did not suggest that Breen was regarded as substantially limited in any major life activity as required under the ADA. Further, Breen acknowledged that no one in management made any negative comments about his Hepatitis C. Finally, Breen could not demonstrate that his employer regarded him as disabled by contending that management's awareness of his condition gave rise to the level of awareness or belief that Breen was substantially limited in a major life activity. By: Merl H. Wayman
Susan Lewis v. Humboldt Acquisition Corporation (6th Cir. March 17, 2011). Plaintiff appealed a jury verdict against her on her disability discrimination case. Following a jury trial, the jury concluded that plaintiff was "regarded as" disabled and she was a "qualified individual" under the Americans with Disabilities Act. The jury, however, concluded that plaintiff's disability was not the "sole" reason for her termination from employment, and granted its verdict in favor of her employer. On appeal, Ms. Lewis argued that the trial court erroneously instructed the jury that she must prove that her disability was the "sole factor" resulting in her discharge, instead of a "motivating factor" as the majority of appellate courts within the United States.The Sixth Circuit Court of Appeals rejected plaintiff's appeal because the circuit previously held in Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1178 (6th Cir. 1996) that, to recover on a claim for discrimination under the ADA, a plaintiff must show that he was discharged solely by reason of his handicap. Under the law of the case doctrine, the panel stated that its hands were tied and that it could not overrule Monette without intervention from the United States Supreme Court or an en banc ruling from the Sixth Circuit.In a concurring opinion, Judge Griffin observed that the panel was bound by its previous panel decision in Monette. However, Judge Griffin noted that Monette was improperly decided because the panel in that decision applied its interpretation of the Rehabilitation Act that a plaintiff must prove the disability was the "sole" reason for the employment action. The concurring opinion stated that the supermajority of other circuits have held that the plain language of the ADA did not support application of the Rehabilitation Act's "sole reason" standard, and if he were allowed, would hold that this standard was contrary to the plain language of the ADA.By: Merl H. Wayman
May 23, 2011 marked the first day the new Americans with Disability Act regulations were effective. The new rules will be a challenge for employers because of adoption of the expansive definition of "disabled." On the other hand, the law is a serious win for employees. The previously restrictive definition of what constitutes a "disability" is done away with and almost no prior case law on the subject can help with interpretation. As for employment attorneys, it is pretty exciting-regardless of which side of the fence you land on.