Wednesday, August 17, 2011

Protected activities under the ADA


Protected activities under the ADA
Foster v Time Warner Entertainment Co., 250 F.3d 1189

The Foster decision demonstrates that an employer violates the ADA if it takes adverse action against a supervisor because he or she arranged for a reasonable accommodation of a disabled worker.

Jane M. Foster sued the Time Warner Entertainment Company. Foster complained that she was terminated for conduct protected by the Americans with Disabilities Act -- her providing a disabled worker under her supervision with a reasonable accommodation of his disability.

The jury agreed, finding that Time Warner had terminated Foster in retaliation for her belief that her actions constituted opposing unlawful discrimination under the ADA. Foster was awarded $75,000 in compensatory damages and $136,000 in punitive damages. The Eighth Circuit Court of Appeals affirmed the decision.

Foster had approved the request submitted by one of the employees she supervised, Kevin Terry, to be excused when he arrived to work late because he suffered from “nocturnal seizures due to epilepsy.” This, Terry said, made it difficult for him to arrive at work consistently on time in the morning because of his seizures. According to the decision, Terry subsequently made up for any lateness by “working late.”

Noting that Time Warner's Human Resources Manual included epilepsy in its definition of disability under the ADA and specifically mentioned a flexible schedule as an example of a reasonable accommodation, Foster approved Terry's request.

The Eighth Circuit said that in order to prevail on her retaliation claim, Foster “need not establish the conduct which she opposed was in fact discriminatory but rather must demonstrate a good faith, reasonable belief that the underlying conduct violated the law.”

What was the “underlying conduct” in this case? Foster's superiors changed the work rules barring the type of accommodation she had approved for Terry.

Proof for a retaliation claim is not the same as that required in a direct claim of disability discrimination, said the court.

According to the decision, Foster consulted Time Warner's manual in the course of dealing with Terry, and it listed epilepsy as a disability protected under the ADA, and it included a modified work schedule as an example of a reasonable accommodation.
The evidence showed that Foster's previous supervisor, Cathy Hill, had provided Terry with that type of accommodation. When Snyder succeeded Hill and issued a new sick leave policy, Foster repeatedly asked how she should accommodate Terry because she believed the new policy conflicted with the manual. The Circuit Court also noted that “there was sufficient evidence that Snyder admitted to Foster that Terry was covered by the ADA.”

Although there was conflicting evidence presented by Time Warner, the jury chose to believe the proof offered by Foster. Foster's evidence, said the court, was sufficient for the jury to find that Foster had an objectively reasonable belief that Time Warner was intentionally violating the ADA when it decided to terminate Terry as well as when it subsequently fired Foster because of her approval of Terry's request and her challenge to the “new policy.”

There also was evidence that at the meeting at which Foster was terminated she showed her superiors the company manual listing epilepsy as a protected condition under the ADA and that it listed a flexible schedule as a reasonable accommodation.

Thus, said the Circuit Court, Foster established a temporal connection between her requests for accommodating Terry's disability and her termination, permitting an inference of retaliation.

As to Time Warner's challenge to Foster's being awarded punitive damages, the Eighth Circuit commented that punitive damages are appropriate if an employer engaged in intentional discrimination with “malice or reckless indifference to [Foster's] federally protected rights,” citing the U.S. Supreme Court's ruling in Kolstad v American Dental Association, 527 US 526.

According to the decision, Foster's superiors -- whom Time Warner conceded were managers -- “knew and admitted that Terry was covered by the ADA and that the company's own manual listed a flexible schedule as a reasonable accommodation.” Malice may be imputed to the employer if the employee who committed the unlawful act is serving in a “managerial capacity” and “acting within his or her scope of employment.

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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