Traumatized Bus Driver Could Not Return to Work Until Cleared

 

By Jeffrey Rhodes September 18, 2019
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​A bus driver for the Chicago Transit Authority (CTA) did not have an age-discrimination claim when he was not allowed to return to a light-duty position like younger employees. The plaintiff tried to return to work six months after a traumatizing incident with a passenger but had not complied with the CTA's return-to-work procedures. This barred his claim, the 7th U.S. Circuit Court of Appeals decided.

The plaintiff was operating a bus for the CTA in 2015 when a passenger screamed at and threatened him. As a result, the plaintiff took six months off from work while recovering. After his physician concluded that he could return to work, though not as a driver, the plaintiff appeared one morning and requested a light-duty job.

The CTA had previously informed him by letter that he needed to complete a form before returning to work and report to CTA's leave management services office, which would administer some tests, including a drug screen. He ignored these directions and simply showed up at his former workplace. A supervisor gave him light-duty work pending advice from management.

The advice, when received four days later, turned out to be a direction that the plaintiff go home until he had done as instructed: fill out the form and report to leave management services. In response, the plaintiff left work and filed a charge of age discrimination with the Equal Employment Opportunity Commission, alleging that he saw three or four younger persons assigned light-duty tasks in 2015. He claimed that he was the only one removed by the CTA, while younger employees were allowed to keep working.

The plaintiff did not comply with the CTA's return-to-work procedures for more than a year after his removal. When he did comply, he was reinstated and retired five days later.

After receiving his right-to-sue letter, the plaintiff began litigation under the Age Discrimination in Employment Act. The plaintiff filed a motion with the district court to have the court appoint an attorney to represent him, which the district court denied without explanation. The district court then granted summary judgment to the CTA.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

On appeal, the plaintiff argued that the district court should have recruited counsel to represent him and failed to explain its adverse decision. The 7th Circuit agreed that the district court should have explained its decision not to appoint counsel for the plaintiff but noted that he had not submitted financial data to support a request for pro bono counsel.

Nevertheless, the 7th Circuit found any error by the district court to be harmless. Even with the assistance of counsel on appeal, the plaintiff could not overcome the biggest obstacle to his claim: He never took the steps that the CTA told him were essential to returning to work. The CTA told the plaintiff to fill out a form and report to leave management services for a drug test and other evaluation. He did not do so. Even after being removed from the position to which he had been assigned while a supervisor checked on his eligibility, the plaintiff failed to follow these instructions for more than a year.

The plaintiff had not alleged that the younger workers in light-duty positions had been allowed to bypass those administrative steps. This meant that he could not show that his age caused an adverse effect. The 7th Circuit thus rejected the plaintiff's argument on appeal and upheld the district court's dismissal of his claims.

Pickett v. Chicago Transit Authority, 7th Cir., No. 18-2785 (July 17, 2019).

Professional Pointer: Employers can insist that employees returning from a medical leave of absence follow their return-to-work protocol—including completing necessary paperwork, providing a fitness-for-duty certification and submitting to required drug tests—before being reinstated. Failure to follow such a protocol generally supports an employer's refusal to return an employee to work.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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