Transitory Disability Was Not Necessarily Minor Under the ADA

By Jeffrey Rhodes July 22, 2020
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Transitory Disability Was Not Necessarily Minor Under the ADA

A truck driver who brought an Americans with Disabilities Act (ADA) lawsuit to challenge his firing after having lung biopsy surgery and a respiratory tract infection should not have had his claim dismissed because of the transitory nature of his condition, the 3rd U.S. Circuit Court of Appeals decided.

The plaintiff started working as a truck driver for Patrick Industries Inc. in July 2013. Between Oct. 14, 2015, and Dec. 14, 2015, he took medical leave to undergo surgery to remove a nodule from his left lung. He told his supervisor that the nodule had to be removed and tested for cancer.

After the medical leave, the plaintiff returned to work in his full capacity without restrictions. However, he then suffered a severe respiratory infection lasting from Jan. 27, 2016, until Jan. 31, 2016. His supervisor approved two vacation days during this time. With his physician's approval, the plaintiff returned to work in his full capacity on Feb. 1, 2016.

At the end of his shift on his second day back, Patrick Industries fired him. The superintendent where the plaintiff worked told him he was terminated due to performance issues. The plaintiff reminded the superintendent that his performance review from early January 2016 had been excellent, with all 4.5's and one 5 out of a possible 5 in each category evaluated.

Thereafter, the supervisor claimed that the plaintiff was fired because he had not called out sick during the recent leave for the upper respiratory infection. Later, the plaintiff learned that the reason for his termination had changed yet again, and the employer was claiming that he had been fired for behavioral issues.

The plaintiff sued Patrick Industries alleging that the real reason for his termination was that he was regarded as having a disability in violation of the ADA and that the shifting reasons for his termination were a pretext for illegal disability discrimination. He claimed that Patrick Industries fired him because it perceived him as having a long-term or chronic medical condition based on his medically required absences. He alleged that Patrick Industries believed his condition would affect his attendance in the future and made him unable to perform a range of jobs.

The district court dismissed the plaintiff's claim because the ADA limits perceived disability claims by excluding impairments, and thus perceived disabilities, that are transitory and minor. Because the absences that the plaintiff claimed his employer relied on all lasted less than six months, they were thus transitory under the ADA and could not support his claim, according to the district court.

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On appeal, the plaintiff's attorney argued that the district court had misconstrued the limitation to perceived disability ADA claims, which requires that a perceived condition be both transitory and minor. Instead, the district court found his condition to be transitory and never addressed whether it was also minor.

The 3rd Circuit agreed and found that the ADA limits perceived disability claims only if the condition at issue is both transitory and minor. It distinguished a prior decision in which it found that a plaintiff who had broken her little finger could not pursue a perceived disability claim because her impairment lasted only two months. In contrast to such a transitory condition that, by its nature, was also minor, surgery on a major body organ like the lungs may be more significant and serious.

The appeals court thus reversed the district court's dismissal of the claim and sent the case back to the district court to determine whether the plaintiff's condition, which Patrick Industries allegedly considered debilitating, was minor.

Eshleman v. Patrick Industries, Inc., 3rd Cir., No. 19-1403 (May 29, 2020).

Professional Pointer: The ADA Amendments Act of 2008 eliminated many of the ADA's previous limitations on coverage. Among other things, a perceived disability claim can rely on an impairment of short duration if the impairment is serious enough in nature to show that the company took an adverse decision because of it.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

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