From: Henri Vanderhage
Date: March 26, 2002
RE: Gardiner v. Inland Topsoil and Landscaping, Inc.
1. Can Mr. Gardiner bring a discrimination claim against Inland Topsoil and Landscaping, Inc. under the Americans with Disabilities act based on his demotion for an inability to hand write long reports because of a repetition related wrist syndrome?
2. If the reason for Mr. Gardiner’s demotion was discrimination based on his inability to reproduce would he be able to bring a suit under the ADA?
3. Will Gardiner be allowed to offer evidence of prior verbal abuse in order to show that the stated reason for his demotion was actual a pretext for a prohibited discriminatory demotion?
1. Yes. Even though Gardiner’s repetition-related wrist syndrome may not restrict him from activities that are of central importance to most people’s daily lives, he may be able to prove that he was regarded as disabled and thus fall under the coverage of the ADA.
2. Yes. It may be argued that Gardiner’s inability to reproduce is considered a substantial limitation of major life activity, the ADA would thereby prohibit discrimination in employment based on that disability.
3. Yes. Where an employee is able to make a prima facie showing of discrimination, he will be allowed to offer evidence to prove the stated reason for the employment decision is only a pretext for prohibited discrimination.
1. Toyota Motor Mfg. v. Williams, ___U.S.___, 122 S.Ct. 681 (2002)
2. Bragdon v. Abbott, 524 U.S. 625 (1998)
3. St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)
4. School Board of Nassau County v. Arline, 480 U.S. 273 (1987)
In August of 2001 Charles Gardiner was demoted from his foreman positions at Inland Topsoil and Landscaping, Inc. after fourteen years of service. The stated reason for the demotion was Mr. Gardiner’s inability to hand write memoranda due to repetition-related wrist syndrome even though he was able to type them using a laptop computer producing work that was substantially identical to what he would have produced writing by hand. It appears that the stated reason for the demotion may be a pretext for an animus that the CEO has against Gardiner as a result of his cancer treatment in 1995. In June of 1995 Gardiner was diagnosed with testicular cancer. After a six-month regime of chemotherapy and radiation treatment as well as the removal of both of his testicles, Mr. Gardiner was able to return to his foreman position in February of 1996. Gardiner has been a foreman at Inland Topsoil and Landscaping since 1992. Two weeks prior to his demotion Gardiner was harassed and insulted by Bob Wilkerson at a company picnic. Affidavits from 16 witnesses support Gardiner’s assertion that after making continual derogatory and insulting remarks Wilkerson shouted, “I’ll be damned if I’ll have a eunuch as one of my foremen!” Mr. Gardiner now wants to bring suit against his employer in federal court for discriminating against him on the job.
At first glance Mr. Gardiner’s claim against Inland Topsoil and Landscaping, Inc. appears to be a straightforward case under the Americans With Disabilities Act of 1990 (ADA). The purpose of which is to eliminate discrimination against individuals with disabilities through clear, strong, consistent, enforceable standards that the federal government may play a central role in enforcing through the power of the fourteenth amendment. 42 U.S.C. §§ 12101(b)(1)-(4) (1994). Noting that by almost any definition, Americans with disabilities are uniquely underprivileged and disadvantaged, Congress decided that the Act should cover disabled individuals, those with a history of such impairment, and individuals who are regarded as having such an impairment. In so legislating, Congress reasoned, “state laws are inadequate to address the pervasive problem of discrimination that people with disabilities are facing.” H.R. Rep. No. 101-485, pt. 2, at 31 - 47 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 313 - 329.
Even though the ADA states that no entity shall discriminate against a qualified individual with a disability because of the disability of such individual, determining Gardiner’s ability to bring a suit is not a simple task. 42 U.S.C. §12112(a). In order to gain protection under the ADA we must prove that he is in the covered class of individuals and that he was in fact subject to prohibited discrimination.
Evaluating Gardiner’s impairments under the regulations promulgated by the Equal Employment Opportunity Commission (EEOC) as well as case authority, we will find it is likely a court will hold that the repetition-related wrist syndrome is not a disability, but Gardiner’s employer regarded him as having disability. Additionally, it appears that the loss of the ability to reproduce constitutes a disability under the ADA and Inland’s contention that there was a legitimate reason for the employment decision will be rebutted if shown to be pretextual. 29 C.F.R. App. §1630.15(a) (2001). Therefore, upon a showing that Gardiner was qualified for the job the court will likely find that Inland Topsoil and Landscaping, Inc. unjustly discriminated against him on the basis of his repetition-related wrist syndrome and inability to reproduce.
Repetition-related wrist syndrome
The first step in evaluating Gardiner’s claim is to determine whether Gardiner can seek protection under the Americans with Disabilities Act for the demotion based on his repetition-related wrist syndrome. Under the three-prong approach of the ADA an employer is required to make reasonable accommodations for an otherwise qualified employee who is disabled because he or she has a physical impairment the substantial limits a major life activity, has a record of an impairment, or is regarded as having such an impairment. 29 C.F.R. § 1630.2(g) (2001). The assessment of whether an employee is disabled or has been regarded as disabled must be done on a case by case basis using the EEOC regulations and cases interpreting the ADA as well as the Rehabilitation act of 1973. Toyota Motor Mfg. v. Williams, ___U.S.___, 122 S.Ct. 681, 692 (2002); 42 U.S.C. § 12116 (1994); 42 U.S.C. § 12201(a) (1994). In doing this, the courts have held that for a person with a wrist disorder, “to be substantially limited in performing manual tasks, an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” Toyota Motor Mfg. v. Williams, ___U.S.___, 122 S.Ct. 681, 691 (2002). However, even if the impairment does not substantially limit a life activity, it may substantially limit that person’s ability to work as a result of the negative reactions of others to the impairment and thus qualify as a disability under the Act. School Board of Nassau County v. Arline, 480 U.S. 273 (1987).
In a case dealing with an employee’s assertion her wrist disorder substantially limited the activity of performing manual tasks associated with work, the court applied the regulations interpreting the Rehabilitation Act of 1973. Williams, ___ U.S. at ___, 122 S. Ct. at 689 (2002). Holding that the plaintiffs inability to perform manual tasks associated only with her job was not sufficient to show that major life activity had been substantially limited. ___ U.S. at ___, 122 S. Ct. at 693. The court reasoned that even if working is a major life activity, the plaintiff must show an inability to work a broad range of jobs for there to be a substantial limitation. ___U.S. at ___, 122 S. Ct. at 693.
In explaining the phrase “regarded as having such an impairment” which is included in 29 C.F.R. 1630.2, the EEOC made specific reference to a Rehabilitation Act case, which dealt with a school teacher who was terminated without a finding that her disease rendered her unable to perform her job. . 29 C.F.R. App. §1630.2(l) (2001), citing School Board of Nassau County v. Arline, 480 U.S. 273 (1987). The court in Arline held that a person who is fired because of a condition that does not substantially limit a life activity may still be covered under the Act if they are “regarded as” disabled. 480 U.S. at 284. The court reasoned that societies myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment. 480 U.S. at 284.
Gardiner’s wrist impairment appears to be quite similar to the impairment in Williams. While he is unable to write for long periods of time, there is no indication that he is restricted from a major life activity as defined in the EEOC regulations or the Williams case. ___U.S. at ___, 122 S. Ct. at 691; 29 C.F.R. § 1630.2(i)-(j) (2001). Even though disabilities are determined on a case-by-case basis, it is unlikely that the limitations imposed by Gardiner’s wrist disorder will rise to the level required to qualify as a disability under the test that requires a substantial limitation of a major life activity.
Even so, it appears that Gardiner’s employer considered him as disabled in the decision to demote him. The stated reason for his demotion was the inability to produce hand written reports even though the accommodation of a laptop computer allowed him to produce reports of equivalent quality. It should therefore be concluded that the decision to demote Gardiner was based on the perception that he was disabled which is a prohibited form of discrimination under the ADA.
Inability
to reproduce
If the court does not recognize Gardiner’s wrist impairment as a disability, it is crucial to his case for his inability to reproduce to be considered a “physical impairment” that “substantially limits” a “major life activity”. Even though cancer of the male reproductive system is not expressly stated to be a disability by the code or regulations, it may be inferred from the House Labor and Education committee’s inclusion of cancer in its discussion of the intended scope of the law along with the EEOC’s broad coverage of the reproductive system in the C.F.R.. H.R.Rep. No. 101-485, pt. 2, at 51 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 333; 29 C.F.R. § 1630.2 (h) (2001). In applying the regulations and interpretations of the ADA and the Rehabilitation Act in the area of reproductive impairments, it can be said that a cancerous condition causing an anatomical loss to the reproductive system is a substantial limitation of a major life activity. 29 C.F.R. § 1630.2 (h) (2001); Bragdon v. Abbott, 524 U.S. 625, 638 (1998).
In an ADA case involving discrimination against and HIV positive individual. Bradgon, 525 U.S. 624 at 628. The court applied the regulations and case law developed under the Rehabilitation Act of 1973 in holding that reproduction is a major life activity and impairment of that activity is a disability under the ADA. Id. at 638. The court reasoned that reproduction and the sexual dynamics surrounding it are central to the life process itself. Id. at 638.
It goes without saying that Gardiner no longer possesses the ability to procreate due to the procedures of his cancer treatment. If the court accepts the holding of Bragdon his impairment is clearly considered a disability under the ADA, thereby protecting him from discrimination because of this disability. In support of this position is the text of the federal regulation that states that disorder of the reproductive system is a physical impairment. 29 C.F.R. §1630.2 (h)(1) (2001). Additionally, since there is no evidence that Gardiner’s condition affected his ability to perform his duties as foreman, enforcing an action under the ADA in this instance would further the removal of barriers which prevent qualified individuals with disabilities from enjoying the same employment opportunities that are available to persons without disabilities which is the purpose of the statute. 29 C.F.R. app. (Background) (2001).
The defense may argue that the court should not recognize Gardiner’s condition as a disability as it may open the floodgates of litigation to people who lack the ability to reproduce. However, the involuntary nature of Gardiner’s condition can be used as a distinguishing feature to dismiss cases of reproductive inability where the inability is the result of an elective procedure. In addition, the statements of Wilkerson prove that there was an animus towards Gardiner that deserves protection.
If the court fails to recognize any cause of action based on the repetition-related wrist syndrome discussed above, the defense may argue that the decision to demote Gardiner was related to a legitimate purpose. If this is the case, we must convince the court to allow evidence that the stated reason is a pretext for a discriminatory action.
Action
as a pretext for discrimination
If Gardiner was demoted for an impairment that is not considered a disability under the ADA is he allowed to offer evidence of the animus Wilkerson held towards him in proving his discrimination case? According to the EEOC, the holding of McDonnell Douglas v. Green may be applicable to charges of disparate treatment brought under the ADA. 29 C.F.R. app. § 1630.15(a) (2001). Under this approach, a plaintiff who is able to show he is disabled and is otherwise qualified for the job may convince a court to shift the burden of proof to the defendant to articulate a non-discriminatory reason for the employment action taken, which is then rebutted if the alleged nondiscriminatory reason is shown to be pretextual. McDonnell Douglas v. Green, 411 U.S. 792 (1973); 29 C.F.R. app. § 1630.15(a) (2001); see also St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), Doe v. Kohn Nast & Graf, P.C., 862 F. Supp. 1320 (E.D. Pa. 1994).
In McDonnell Douglas the plaintiff brought an action under Title VII of the Civil Rights Act of 1964. 411 U.S. at 793. After the plaintiff was able to make a prima facie showing of employment discrimination, the court held that the burden must then shift to the employer to articulate some legitimate reason for the employee’s rejection which the plaintiff may offer evidence to show was a pretext. 411 U.S. at 802-804. The court reasoned that exercising this sort of burden shifting will allow the plaintiff a fair opportunity to demonstrate the assigned reason for refusing to re-employ him was a pretext. 411 U.S. 807.
If the court is willing to take this approach to Gardiner’s case, there is a strong chance of judgment in his favor. Not only are there a number of witnesses to prove Wilkerson’s insulting and derogatory comments towards Gardiner, but there is also the fact that he was demoted two weeks thereafter for a reason that may very well be held discriminatory in itself. The defense’s attempt to justify the action based on the requirement for handwritten reports will likely fail as a court will probably find that there is no legitimate reason to require such reports where Gardiner can produce equivalent work with the use of a laptop computer. We have already shown that Gardiner’s reproductive impairment is a disability under the ADA. It also appears that he was qualified to continue work as a foreman. Therefore, the affidavits of the witnesses to Wilkerson’s conduct at the picnic may be allowed as evidence to show that Gardiner’s demotion was in fact discriminatory.