INTERESTING POST – ADAAA CLAIM SURVIVES SUMMARY JUDGEMENT
by Art Gutman Ph.D., Professor, Florida Institute of Technology
The Case is Harty v. City of Sanford (Florida), decided on August 8, 2012 [2012 U.S. Dist. Lexis 111121] by Judge Gregory A. Presnell of the Middle District of Florida, Orlando Division. There are several reasons why this case is important, most notably, Judge Presnell’s opinion that the City would have been granted summary judgment under Pre-ADAAA rules, but not after the ADAAA (ADA Amendments Act of 2008). There are other interesting factors in this case.
The facts of the case are that Richard Harty was medically discharged from the Navy because of a knee injury. He was given a VA disability rating of 40% and told he could not perform his job as a welder because he could not kneel, squat, run, jump, climb stairs or a ladder, and could not walk up or down inclines. In spite of these impairments, he was employed by the City of Sanford from May 2007 through January 2010. He was hired initially as an equipment operator, and he performed the essential functions of this job by modifying how he performed them (e.g., bending at the waist or sitting on his hip rather than kneeling). Within two weeks, he was promoted to foreman, which required him to perform every job he supervised. Harty then re-injured his knee in September 2008 and was placed on light duty assignment. Subsequently, his own physician opined that Harty reached maximum improvement, and after an examination by City’s medical doctor, he was fired because of the belief that could not perform all of the essential functions of a “working foreman.” Harty maintained he could perform all essential functions as in the past, by modifying how he performed them.
The key Pre versus Post ADAAA consideration was mitigation of impairment. That is, in three 1999 ADA rulings, the Supreme Court ruled that mitigating measures must be considered in determining whether an a physical or mental impairment substantially limits one or more major life activities, a major requirement to be considered disabled within the meaning of the ADA. The Supreme Court ruled that this determination must be made with consideration of mitigating measures, and therefore, that visually impaired individuals must be evaluated after considering the corrective effects of eyeglasses (Sutton v. United Airlines [527 U.S. 471]), that people with high blood pressure must be evaluated after considering the corrective effects of blood pressure medication ( Murphy v. UPS [527 U.S. 516]), and that people with blindness in one eye (amblyopia) must be evaluated after considering their ability to overcome this condition with reliance on monocular cues for depth perception. Citing Sutton, Judge Presnell ruled:
Had the events in this case occurred prior to 2009, case law suggests that Harty might not be considered disabled under the ‘actual disability’ prong the ADA. Under Sutton v. United Air Lines, Inc., “[i]f a person is taking measures to correct for, or mitigate, a physical or mental impairment, the effects of those measures – both positive and negative-must be taken into account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act.
Actually, given the facts of the present case, Kirkingburg was most relevant since there, like here, the individual was able to self-mitigate. That aside, Judge Presnell ruled that Harty was substantially limited in his non (self) mitigating state, and therefore, because the ADAAA overturned the Supreme Court’s views on mitigating measures, he was deemed disabled within the meaning of the ADA.
There were two other interesting rulings in this case. First, ordinarily, one can satisfy the definition of being disabled with a current impairment that substantially limits a major life activity, a history of impairment, or being regarded as having such impairment. Judge Presnell ruled that because he was fired for having impairment, the City might have regarded him as being impaired.
Second, even if one has an impairment that substantially limits one or more major life activities, the individual must still perform all essential job functions either with or without reasonable accommodations. The City argued that Harty could not satisfy that requirement. However, Judge Presnell ruled otherwise based on the testimony of another foreman. Or in the judges words:
In the instant case, Gilbert Lareau, a Sanford foreman in the same position as Harty, testified that although the physical activities Harty is restricted from performing are listed in the foreman’s job description, a foreman need not engage in the precise physical maneuvers listed in the physical requirements of the job description in order to fulfill his duties. Lareau testified that jumping, squatting, and running were not required. While Lareau testified that bricklaying is customarily accomplished by kneeling, the task can be performed by other methods, such as bending at the waist. Lareau’s testimony, viewed in the light most favorable to Harty, indicates a dispute of material fact as to whether kneeling—or any other physical activity which Harty is restriction from performing—is an essential job function. Accordingly, there are disputed issues of material fact which preclude summary judgment.
In summary, this case sheds light on the importance of the ADAAA’s reversal of the Supreme Court ruling relating to mitigating measures. At the same time, it sends a warning to employees to be careful not to assume one cannot perform the job based on impairment, and not to confuse what are essentially abilities (e.g., kneeling, sitting, squatting, etc.) with actual job tasks.