Functional capacity exam ordered over objections of EEOC, Dollar General applicant rejected three years earlier

By Lisa Milam-Perez, J.D.

The operator of a Dollar General store in Georgia was granted its motion to compel a complainant in an ADA suit to submit to a functional capacity exam (FCE). The federal magistrate judge overseeing the case deemed it premature to conclude that the employer was looking to procure an untimely expert opinion “smuggled in under the pretense of non-expert discovery.” The magistrate also rejected the objections of the EEOC and the complainant, who had intervened in this disability discrimination suit, that a FCE would be pointless now because it would tell them nothing about her capacity to perform the essential functions of a store associate position back in 2015, when she was rejected for the job (EEOC v. Dolgencorp, LLC dba Dollar General, May 11, 2018, Smith, G.R.).

The job applicant on whose behalf the EEOC filed suit had “a brachial plexus injury” to her left arm as the result of a car accident. The injury required her to wear a sling and it sharply restricted the use of her left arm. Dollar General denied her a sales associate position because of it, according to the EEOC, asserting an ADA disability discrimination claim.

Dollar General asked the court to order the plaintiff to submit to a FCE, noting that her ability to perform as a sales associate with or without accommodation was a threshold issue. As such, it noted, the parties needed “an objective and relevant assessment” of whether she could in fact perform the tasks that correspond to the position. She intervened in the case.

FCE request too late? But the EEOC and the complainant argued that a FCE was inappropriate at this juncture because, among other reasons, the deadline for experts had passed, and Dollar General had not shown good cause for not requesting an FCE earlier. By its terms, an FCE “necessarily generates an expert report,” so a motion seeking an FCE must comply with court-prescribed deadlines governing the disclosure of witnesses “retained or specially employed to provide expert testimony in the case,” the court observed. In this case, that deadline passed in more than two months before the instant motion was filed.

But Dollar General asserted that the FCE was not sought for the purposes of generating an expert opinion about the applicant’s functional capacity but rather, to secure “lay opinion testimony” from a physician regarding her capacity and/or limitations “based on their personal knowledge and observations.” That is, the FCE examiner would be a mere passive observer recording the complainant’s physical functioning, according to Dollar General, but would offer no “expert interpretation or evaluation.” And unless the examiner were to “cross[ ] the line from lay to expert testimony by basing their testimony ‘on a hypothesis, not on the experience of treating the patient,’” the requirements of Rules 26 and 35 would not apply, as the wary court rephrased it.

Expert testimony? Despite its skepticism, the court concluded it could not determine whether the FCE would “tread into expert territory” without actually seeing the exam results. “While the Court can imagine an obstacle course-like regimen that could evaluate such abilities without necessarily requiring ‘scientific, technical, or other specialized knowledge,’ it is not clear that hypothesizing plaintiff’s capacities from even a multi-hour examination will not ‘cross the line’ from concrete observation to speculation, and thus, into expert territory.” Therefore, the court granted the motion, but with the caveat there was no guarantee the selected physician’s testimony would be relevant, or ultimately deemed admissible.

Source:: http://www.employmentlawdaily.com/index.php/news/functional-capacity-exam-ordered-over-objections-of-eeoc-dollar-general-applicant-rejected-three-years-earlier/