By: Claudia D. Orr
Usually I just write about the cases that are bad news for employers because I want to spread a cautionary tale to keep readers out of trouble. But this new case tickled me several times as I read it and I thought why not share some good news for a change.
Booth v Nissan North America, Inc. is a published decision the by the United States Court of Appeals for the Sixth Circuit involving discrimination and failure to accommodate claims brought under the Americans with Disabilities Act (“ADA”). As you know, since the ADA was amended in 2008 it seems nearly every medical issue is a disability under the act. At least we know that would be the position of the Equal Employment Opportunity Commission (“EEOC”)! So when the appellate court found Plaintiff’s work restrictions not to be a disability, I was simply thrilled.
Plaintiff Michael Booth worked at a Nissan factory in Tennessee. In 2004, Booth injured his neck and was placed on several restrictions that prevented him from reaching above his shoulders more than 33% of the time or flexing or extending his neck more than 66% of the time. However, he could still perform his job and did so for the next ten years.
In 2015, Booth requested another position at the factory, which he was denied because it would have violated his “permanent” work restrictions. That job would not have increased Booth’s benefits or wages, but is viewed as a “preferred” position that Nissan rewards to more senior workers.
Soon after, Nissan decided to restructure the assembly line jobs requiring Booth to not only perform the two tasks he was already doing, but two more. Unfortunately, with the now ten year old restrictions, Booth would have been unable to perform the two extra tasks. While Booth was allowed to temporarily continue working on the line in his original “two-job” position, he was told that Nissan may not have a job for him unless his restrictions changed. Booth was encouraged to see a physician to determine whether he still needed the restrictions.
A physician performed a functional capacity test and modified Booth’s restrictions. The restriction concerning flexing or extending of neck was removed, but he was still limited from reaching above his shoulder more than 33% of the time. In February 2017, Booth was returned to the assembly line where he continued to work throughout the litigation and appeal.
Booth claims he is a person with a disability and that Nissan unlawfully denied him reasonable accommodation. Booth filed an intake questionnaire with the EEOC in November 2016 and a formal charge of discrimination with the Tennessee Human Rights Commission in December 2016. Both charges were dismissed by the EEOC after concluding Booth had failed to present sufficient information to establish a violation of the ADA.
Booth filed a civil lawsuit in the federal District Court for the Middle District of Tennessee which was dismissed when the court granted Nissan’s motion for summary judgment.
The first issue on appeal was whether Booth’s lawsuit was timely filed. The appellate court explained that “the plaintiff must first file a charge describing the alleged discrimination, either with the EEOC or with an equivalent state agency, before he can litigate the claim in court. “If the plaintiff files his charge directly with the EEOC, he must do so within 180 days of the alleged discrimination; if he chooses instead to file the charge with an equivalent state agency, he has 300 days from the alleged discrimination.”
According to Nissan, it informed Booth sometime in November 2015 that his transfer request to the “preferred” job was denied. The appellate court rejected Booth’s argument that the denial was somehow not permanent at that time simply because he continued to ask to speak to higher level supervisors about the decision. “Nissan’s decision was no less final, simply because Nissan supervisors explained the company’s decision to Booth several times in 2015 and 2016. Those discussions did not reset the 300-day deadline to file the charge.” Thus, his charge was not timely since it was brought a year after the decision. An “impotent attempt to renew his earlier request” has no impact on when the limitations period begins. This is a great quote that I intend to use in the future.
Next, the court reviewed Booth’s allegation that he is disabled. Under the ADA, Booth was required to show that (1) he had a physical or mental impairment that substantially limits one or more major life activities, (2) a record of such impairment, or (3) he was “regarded” as having such an impairment.
“Working” is a major life activity, but being unable to perform a discrete task or specific job or simply “having a work restriction does not automatically render one disabled.” The 2008 amendments to the ADA are more favorable to coverage and an impairment that substantially limits one major life activity does not need to limit others in order to be a disability.
However, even after the 2008 amendments, “a plaintiff who alleges a work-related disability ‘is still required to show that [his] impairment limits [his] ability to ‘perform a class of jobs or broad range of jobs’.” Having a substantial limitation in performing “unique aspects of a single specific job” does not rise to the level of a disability.
Moreover, since Nissan allowed him to continue working on the assembly line while denying him a transfer to the “preferred job,” it clearly did not perceive him as having a substantial impairment that limited his ability to work. Since Booth failed to present evidence of his disability beyond his work restrictions, his discrimination claim based on the refusal to transfer him failed.
Booth also alleged that Nissan failed to accommodate his disability after it modified the assembly line jobs to include two new tasks. A failure to accommodate claim must be based on “direct” not circumstantial evidence.
To prove his failure to accommodate claim, Booth again had to first show he has a disability, which he cannot as explained above. Setting this aside, Booth remained in his assembly line job (requiring him to perform only the two original tasks) until his restrictions were reviewed by a physician. Those restrictions were modified and he was able to perform the assembly line job as it had evolved. Booth, in fact, had testified that he did not disagree with the modified restrictions.
The court noted that it would have been a closer case if Booth had argued in his brief that Nissan “perceived” him as having a disability when it “warned” him that Nissan might not have a job available for him unless the restrictions were modified, but he failed to make that argument to the appellate court. Perhaps Booth will next bring a claim against his attorney.
This is an all-around great ADA case. It makes clear that a charge filed at the EEOC must be brought within 180 days, not 300 days as applicable to charges initiated at the state agency. The court also clearly required “direct” evidence to support a failure to accommodate claim, which is often overlooked. It also reminds us that just because the employee has work restrictions, that does not necessarily mean the employee has a disability that needs to be accommodated under the ADA (although I don’t know that the EEOC’s office in Detroit would agree). However, before any employer makes that decision, it should consult with an experienced employment attorney, such as the author.
This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at firstname.lastname@example.org or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. July 2019.