by Martin J. Regimbal
The U.S. 5th Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas) recently upheld a jury’s verdict in favor of an employer on an employee’s lawsuit under the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). The verdict was the result of several things the employer did correctly in response to the employee’s medical issues. This case is worth another look.
“Melissa” began working as an armored truck driver and guard for Loomis Armored US, LLC, in 2008. According to her, when she interviewed for the position, she informed Loomis’ then-branch manager, “Mallory,” that she suffers from seizures, a claim Mallory denies. Melissa didn’t identify her seizures or any other disabling condition on Loomis’ “Disabled & Veterans Self-Identification Form,” nor did she request an ADA accommodation in the space provided on the form.
Melissa claimed that in late 2008, she suffered a seizure or fainting spell while she was driving an armored truck. “Marvin,” who was with her in the truck, testified that at the time of the incident, she wasn’t driving erratically, and he didn’t see anything that indicated she was having a seizure. Her emergency room records stated that she had experienced a fainting episode. Afterward, she didn’t request any accommodations, and she continued to drive the armored truck.
In 2011, Loomis promoted Melissa to evening vault supervisor, a position that required her to carry a gun and oversee millions of dollars in customers’ funds. She claimed that she was moved into the position as an accommodation for her disability. Mallory maintained that she requested the position to accommodate her school schedule.
Melissa alleged that on June 5, 2012, she suffered another seizure while she was at work. Loomis requested that she take FMLA leave, and she complied. While she was on leave, she was in contact with “Gail,” Loomis’ corporate benefits supervisor. Gail said she explained that Melissa needed to obtain a return-to-work release both from a private doctor and from Dr. Moore, the company physician at Concentra Health Care.
According to Gail, Loomis wasn’t a decision maker in Melissa’s fitness to return to work, nor did it have access to medical records from her outside providers. Instead, the process was handled by Concentra and a third-party administrator. Melissa therefore needed to satisfy Moore’s requests for information so that he could determine her fitness to return to work.
Melissa’s personal neurologist, Dr. Gladney, gave her a fitness-for-duty (FFD) certification on June 12. However, Loomis determined that the certification was based on false information Melissa had provided to Gladney. Specifically, Loomis believed that she falsely claimed she had history of seizures and epilepsy, falsely stated that she was on medication prior to June 5, 2012, falsely stated that she had gone off her medication prior to the June 5 seizure, and failed to inform Gladney that her job required her to carry a firearm.
Melissa saw Gladney again on June 26, and he concluded that she didn’t suffer from seizures or have epilepsy, but instead was subject to sinus-related fainting spells. She never returned to Gladney, and he never completed the required FFD paperwork. Instead, she obtained FFD certifications from Dr. Craig, her family practitioner, and Dr. Mitchell, an ear, nose, and throat physician who had recently performed her nasal surgery.
Melissa’s FMLA leave ended on August 27. Because she hadn’t yet obtained a return-to-work clearance from Moore, Loomis determined that she hadn’t satisfied the requirements for reinstatement. The company therefore extended her leave through its internal medical leave of absence program.
When Melissa saw Moore on August 28, he explained that the return-to-work submission from Craig was illegible and insufficient because it failed to address whether she was fit to carry a gun or whether her alleged seizures were being controlled by medication. Melissa eventually provided an updated certification, but Moore informed Loomis that the updated documentation didn’t include the information or details needed to clear her and he didn’t feel comfortable releasing her to return to work.
On October 5, Melissa filed a charge with the Equal Employment Opportunity Commission (EEOC) against Loomis. On October 8, Gail informed her that Moore was still awaiting an evaluation from a neurologist. Three days later, Gail sent Melissa a letter explaining that if she didn’t obtain the evaluation, Loomis would have no evidence that she could safely perform her duties and would therefore be unable to return to her work as vault supervisor.
Ten months later, Melissa filed a lawsuit alleging Loomis had discriminated against her because of her disability or because it regarded her as disabled, failed to provide her a reasonable accommodation, and interfered with her FMLA rights.
After a 4-day trial, the jury returned a verdict in Loomis’ favor on all claims. Melissa appealed, arguing the jury erred when it didn’t find that Loomis regarded her as disabled and failed to restore her to the same or an equivalent position after her FMLA leave.
In upholding the jury’s verdict in favor of Loomis, the 5th Circuit rejected both of Melissa’s arguments. First, the court noted that a “regarded as” claim can be based on the following grounds:
- The employee has an impairment that isn’t substantially limiting, but the employer perceives it as substantially limiting.
- The employee has an impairment that is substantially limiting only because of the attitudes of others.
- The employee has no impairment, but the employer perceives her as having a substantially limiting impairment.
The court noted that an employer’s mere knowledge of an employee’s medical condition doesn’t, in itself, support an inference that the employer regards the employee as disabled. It also noted that an employer may regard an employee as impaired or restricted from one job or a narrow range of jobs without regarding her as disabled, and people who suffer from seizures aren’t automatically deemed disabled because of their diagnosis, but they must demonstrate that it impairs a major life activity.
According to Melissa, Loomis regarded her as disabled because certain employees were aware of her history of seizures, and as a result, the company made changes to her work duties. Loomis countered by showing the jury Melissa’s Department of Motor Vehicles, National Guard, and hospital records, which she claimed reflected her history of seizures, epilepsy, and other disabilities. However, those records did not reflect any history of such impairments.
Loomis also presented testimony that Melissa didn’t indicate when she was hired that she had a disability or needed an accommodation, she was transferred to the vault position because she was attending college in her spare time, and Marvin said he did not observe any symptoms consistent with a seizure on the day they were in the armored car together, an observation corroborated by her emergency room visit. Based on that testimony and evidence, the court found the jury’s verdict was amply supported.
Melissa also argued that Loomis interfered with her right to return to her job or an equivalent job when her FMLA leave expired. Loomis maintained that it made a concerted effort to restore her to her position as vault supervisor. Among other things, Gail testified that the company had offered to pay for Melissa to visit a neurologist and gave her a copy of her job description to present to a neurologist of her choice.
Gail also testified that it was Moore, not Loomis, who requested that Melissa obtain an evaluation from a neurologist, and because she didn’t receive clearance from Moore, Loomis was never in a position to facilitate her return to work.
Additionally, Gail testified that at the time of trial, Melissa was still on a medical leave of absence pending her satisfaction of the company’s return-to-work requirements, and her failure to see a neurologist was the roadblock to her return to work.
According to the court, Loomis provided abundant evidence to convince the jury that Melissa’s failure to comply with established protocol prevented her from being restored to her job. As a result, it upheld the jury’s verdict on her FMLA claim as well. Ariza v. Loomis Armored US, LLC, 2017 WL 218011 (5th Cir., Jan. 18, 2017).
This case presents good examples of best practices for addressing an employee’s potential disability and need for reasonable accommodation as well as for managing FMLA leave. The jury’s verdict in favor of Loomis was based on the company’s well-documented responses to Melissa’s medical issues as they arose and its consistent adherence to the administrative processes and safeguards provided for employers under the ADA and FMLA.