Evidence that fired press assistant could perform essential job functions post-surgery supports jury verdict on liability

By Kathleen Kapusta, J.D.

Based on the evidence presented at trial on the ADA claim of an employee who was placed on work restrictions after shoulder surgery and later fired, a reasonable jury could determine that he could still perform the essential duties of his press assistant job at the time of his termination, the Sixth Circuit held, rejecting his employer’s contention that his functional capacity evaluation and a doctor’s report precluded him from satisfying the job’s requirements. “Even if we take a doctor’s restrictions at face value,” the appeals court stated, “they do not dictate the essential functions of a job.” And while there was also sufficient evidence for a jury to find the employee used reasonable diligence in his job search, the district court erred in giving the jury the option of awarding front pay rather than reinstating the employee, the appeals court stated, affirming in part and reversing in part the judgment of the court below (Gunter v. Bemis Co., Inc., October 16, 2018, Sutton, J.).

While working as a press assistant for a company that prints material used as graphics on the outside of Huggies diapers, the employee injured his right shoulder. Although he continued working for six months while going to physical therapy, his shoulder did not improve and he underwent surgery in August 2013. He returned to light duty a month or two later and in December, he resumed his press assistant job with restrictions that he not reach with his right arm or perform overhead work.

Functional capacity evaluation. In May 2014, the employee underwent a functional capacity evaluation. Although the evaluator determined that he could perform jobs with light physical demands, his job description required him to be able to do jobs with medium physical demands. Nonetheless, the company allowed him to continue working with a temporary no-overhead-work restriction while his surgeon reviewed the report. In June, the surgeon authorized him to return to work with lifting restrictions. On July 2, the company, reasoning that it could no longer accommodate his restrictions, placed the employee on paid leave. He was fired four months later.

Jury verdict. He then sued under the ADA and after a five-day trial, the jury found the employer violated the Act by firing the employee because of his disability, by failing to accommodate his disability, and by failing to engage with him in the interactive process. It awarded him $181,522 in back pay, $92,000 in compensatory damages, and $315,000 in front pay. The district court modified the judgment in part, eliminating the damages for lost insurance benefits. The company appealed and the employee cross-appealed.

Liability. While the employer first argued that because the employee could not perform the essential functions of his job, he was not entitled to any relief under the ADA, the appeals court explained that “On this record, that was the jury’s call, not ours.” There was evidence that the employee could lift 40 pounds from the floor to his waist up to one-third of the time and that the employer encouraged employees not to lift anything over 40 pounds by themselves. The jury also heard that the employer had lifting equipment that employees could use to lift many objects, even objects weighing as little as 20 pounds and while press workers must lift ink buckets that weigh 20 to 30 pounds and gears that weigh between 15 and 40 pounds, employees can ask coworkers to help lift the heavier gears and often do, the court observed, noting that employees also use ladders for equipment that needs to be lifted higher, establishing an option for workers, like the employee here, who could not lift over their waist.

In addition, there was evidence that the employee could do the other parts of his job, even after accounting for limits on working over his head with his right arm and outstretching his right arm. Although the employer countered that his functional capacity evaluation and surgeon’s report precluded him from satisfying the requirements of a press assistant, including lifting 45 pounds and reaching 24 inches, the jury heard evidence from several witnesses that he could handle the fundamental duties of a press assistant with these restrictions.

Job description. And while the employer presented evidence that it carefully composed the press assistant job description, there was evidence these requirements were not essential and the company and other employees did not treat them as essential. As to the employer’s assertion that the employee could not establish his qualifications for the job based on the option that other employees could help lift heavy equipment, evidence that press workers often asked for and received help with certain tasks permitted the jury to find this was not an indispensable task for individual employees. In the final analysis, said the court, the employee presented sufficient evidence to create a triable issue of fact over the essential job requirements of a press operator, making the final resolution one for the jury.

Mitigation of damages. The company next asserted that the back and front pay awards should be vacated because the employee did not mitigate damages. The court, however, found sufficient evidence for a reasonable juror to conclude the employee used reasonable diligence in his job search. He quit school after eighth grade and never learned to read more than a few words or short phrases. He was rejected for several jobs based on his limited education and limited reading ability. He could not read the newspaper or search the Internet for other options and even the employer here would not have considered him if he had reapplied for his press assistant position because it now requires all applicants to have a GED or high school diploma.

Reinstatement or front pay. The district court, however, erred in giving the jury the option of awarding front pay rather than reinstating the employee. Although the employee testified that he wanted his job back, the lower court did not offer a sufficient reason for taking reinstatement off the table. There was no evidence of hostility between the parties and the employer acknowledged that it would reinstate him if the jury found him qualified for the job. “The district court’s rationale for taking reinstatement off the table—that [the employee] might not be able to work safely as a press assistant—ends at the bottom of a long and icy slope,” said the court. Once the jury found that he could perform the job’s essential functions and once the trial judge left that finding in place after ruling on the company’s post-trial motions, that explanation “no longer made any sense as a ground for precluding reinstatement.”

Because the district court should have instructed the jury on reinstatement instead of front pay, the court vacated the front pay award. Noting that the employer closed it plant since the trial ended, the court reasoned that under these circumstances, the employee was entitled to front pay from the time of trial until the plant closed. On remand, the district court must determine the appropriate front-pay award for that period. Further, it can reopen the record to determine what other remedy might be appropriate given that the employee should have been an employee when the plant closed.

Cross appeal. After finding that a timely notice of appeal is a jurisdictional requirement but that a timely notice of cross-appeal is not, the court rejected the employee’s contention in his cross-appeal that the district court erred in reducing the jury’s award for lost benefits. He simply provided no evidence from which a jury could reasonably find the actual expenses he incurred in joining his wife’s insurance.

Source:: http://www.employmentlawdaily.com/index.php/news/evidence-press-assistant-could-perform-essential-job-functions-post-surgery-supports-jury-verdict-on-liability/