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Denial of telecommuting due to employee’s use of ‘sedating medications’ not a plausible disability claim

By Marjorie Johnson, J.D.

An African-American employee failed to plausibly allege that his employer violated the ADA by denying his request to telecommute and terminating him after he provided a doctor’s note saying he would benefit from working from home because he had a musculoskeletal problem that required “sedating medications.” Granting the employer’s motion to dismiss, a federal court in Texas held that his claim that the company failed to engage in the interactive process could not stand on its own and he failed to plausibly allege that he suffered an actual or perceived disability. His claim of race bias was also tossed since he did not allege that he was treated less favorably than a similarly situated Caucasian employee who was disabled (Stewart v. AutoRevo, Ltd., November 8, 2017, Boyle, J.).

Telecommute request denied. In January, the employee was hired to serve as one of his employer’s three national dealer consultants, which entailed telemarketing its products to car dealerships. On May 7, he presented a note from his doctor which stated that he “would benefit from being able to work from home especially while he is being treated for an acute musculoskeletal issue that requires sedating medications.” He was fired the next day.

Concern over “sedating medications.” The employer claimed that it was concerned about the sedative nature of his medication; it had never allowed employees to work from home indefinitely. The employee saw it another way, asserting that his employer unlawfully refused to accommodate him and regarded his taking “sedative medications” as so physically or mentally impairing that he could not make telephone calls or drive a car. His lawsuit alleged that the company failed to participate in an interactive process, denied him a reasonable accommodation, and discriminated against him based on his actual or perceived disability and his race.

No “interactive process” claim. The court first tossed his individual “interactive process” claim because it said that failure to engage in an interactive process is not itself a violation of the ADA. Though EEOC regulations suggest that to reasonably accommodate a disabled employee “it may be necessary for the covered entity to initiate an informal, interactive process,” employers are not required to engage in an interactive process under all circumstances, the court found.

When an employee specifically identifies the disability and resulting limitations, and suggests the reasonable accommodations, then the employer is obligated to engage in an interactive process. But even then it is the resulting failure to accommodate that constitutes the ADA violation, not the failure to engage in an interactive process, said the court. Therefore, even if the employee adequately pleaded facts to suggest the employer was obligated to engage in an interactive process, its alleged failure to do so did not support an ADA claim.

No actual disability. The employee also failed to plausibly allege that he suffered an actual disability under the ADA. The employer argued that his vague allegations of a “painful back/neck condition” described generally by his doctor as “an acute musculoskeletal issue” fell short of alleging a “specific disability,” particularly since he provided no detail as to how his vaguely worded condition limited his activities. The employee countered that the ADA required only that he assert that his disability limited major life activities.

The only facts that he asserted to demonstrate that he was actually disabled were that “he began suffering from a painful back/neck condition that substantially limited his sleeping, sitting, lifting and bending.” This fell short of establishing that he was actually disabled; he did not provide any context from which the court could draw a reasonable inference that his alleged back and neck pain rose to the level of a physical impairment.

Rather, he stated only that it was “painful” and that his doctor described his condition as “acute.” He also failed to plausibly allege that his major life activities were substantially limited. Merely making a conclusory statement was not sufficient. Instead, he needed to allege facts about the actual or expected duration and impact of the impairment, which he failed to do.

Not “regarded as” disabled. The court also tossed his “regarded as” disabled claims since he failed to adequately assert that he had a “perceived physical impairment.” His contention that the employer “regarded his taking ‘sedative medications’ as so physically or mentally impairing that he could not make telephone calls or drive a car” was insufficient. It was his alleged back and neck condition that constituted the perceived physical impairment, not the medication.

No race bias. Striking a final blow, the court also tossed his race discrimination claim. The employee failed to assert that he was treated less favorably than a similarly situated Caucasian employee who was disabled—simply stating that he was African American and that his replacement was Caucasian was insufficient. Moreover, he alleged that the other two national dealer consultants and his replacement—who were all Caucasian—were not disabled.