Temporary Impairment May Be ‘Disability' Under Amended ADA, Fourth Circuit Rules

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By Kevin P. McGowan  

Jan. 24 -- A temporary impairment caused by an injury may be a covered “disability” under the ADA Amendments Act if it's “sufficiently severe” to substantially limit a major life activity, the U.S. Court of Appeals for the Fourth Circuit ruled Jan. 23 (Summers v. Altarum Inst., Corp., 4th Cir., No. 13-1645, 1/23/14).

Reversing a district court's dismissal of an ADA wrongful termination claim, the Fourth Circuit said plaintiff Carl Summers, who was fired as a senior analyst by the Altarum Institute less than two months after sustaining serious injuries to both legs that prevented him from walking normally for at least seven months, may have an actual disability under the ADA.

Altarum argued an impairment that only temporarily limits an individual's performance of a major life activity, such as walking, cannot be a disability under the ADA, even after the 2008 amendments in which Congress overrode U.S. Supreme Court precedent and broadened the act's definition of disability (187 DLR AA-1, 9/26/08).

First Appeals Court to Reach Issue

The Fourth Circuit, however, said the ADA Amendments Act indicates Congress intended the ADA's definition of disability to “be construed in favor of broad coverage” to the “maximum extent permitted by its items.”

Congress also expressly overruled Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 12 AD Cases 993 (2002) 6 DLR AA-1, 1/9/02) to the extent the Supreme Court had “adopted a strict construction of the term 'disability' and suggested that a temporary impairment could not qualify as a disability” under the ADA, the appeals court said.

The Equal Employment Opportunity Commission, in its final regulations implementing the ADA Amendments Act (57 DLR AA-1, 3/24/11; 57 DLR C-1, 3/24/11), therefore reasonably interpreted the act to provide that “effects lasting or expected to last fewer than six months can be substantially limiting” for purposes of proving actual disability, the court said.

The Fourth Circuit is the first federal appeals court to apply the ADA Amendments Act's “expanded definition of disability” to include temporary impairments, the court said.

“Fortunately, the absence of appellate precedent presents no difficulty in this case: Summers has unquestionably alleged a 'disability' under the ADAAA sufficiently plausible to survive a Rule 12(b)(6) motion,” Judge Diana Gribbon Motz wrote.

Judges G. Steven Agee and Albert Diaz joined in the court's decision.

Accident Affected Walking Ability

In July 2011, Summers began working as a senior analyst for Altarum, a government contractor with an office in Alexandria, Va.

Summers's job required him to travel to the Maryland offices of Altarum's client, the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (DCoE), where Summers conducted statistical research, wrote reports and made presentations, the court recounted.

Altarum authorized employees to work remotely if the client approved. In Summers's case, DCoE preferred contractors to work on site, but allowed them to work remotely from home when “putting in extra time on a project,” according to Summers's court complaint.

On Oct. 17, 2011, Summers fell and seriously injured himself while exiting a commuter train. He fractured his left leg, tore the meniscus tendon in that leg, and also broke his right ankle and ruptured a patellar tendon in his right leg, the court said.

Doctors performed multiple surgeries and forbade Summers from putting any weight on his left leg for six weeks. The physicians estimated Summers wouldn't be able to walk normally for at least seven months. Summers also alleged that without the surgeries, bed rest, pain medication and physical therapy, he would “likely” not have been able to walk for more than a year after the accident.


Altarum Institute argued that since Carl Summers's impairment was a temporary condition from which he was expected to fully recover, he can't plausibly allege an actual disability under the ADA.  

 


While in the hospital, Summers contacted Altarum to ask about short-term disability benefits and possibly working from home as he recuperated. An Altarum human resources representative agreed to discuss “accommodations that would allow Summers to return to work,” but suggested Summers just take short-term disability and focus on getting well.

Summers subsequently e-mailed his Altarum supervisors, seeking advice about how to return to work and suggesting a plan in which Summers would take short-term disability for a few weeks, then start working remotely from home part time and subsequently increase his hours to full time again.

Altarum's insurance provider granted Summers short-term disability payments, but the supervisors never replied to his proposal to work from home or suggested alternative accommodations. Instead, Altarum told Summers he was terminated effective Dec. 1, 2011, so the company could “place another analyst in [Summers's] role at DCoE.”

Summers sued under the ADA, claiming Altarum failed to accommodate his disability and wrongfully discharged him because of his disability. The U.S. District Court for the Eastern District of Virginia granted Altarum's motion to dismiss, ruling Summers can't plausibly allege a disability under the ADA. Summers appealed only dismissal of his ADA wrongful discharge claim.

Duration Is Not Disqualifying Factor

Summers alleged his impairment is covered under the ADA's actual disability prong, as he was substantially limited in the major life activity of walking.

But Altarum argued since Summers's impairment was a temporary condition from which he was expected to fully recover, he can't plausibly allege an actual disability under the ADA.

Summers did not proceed under the ADA's “regarded as” disabled prong, as the 2008 amendments provide a plaintiff can't be regarded as disabled if his impairment is “transitory and minor,” which Congress defined as having “an actual or expected duration of 6 months or less.”

But Congress placed no similar durational requirement on the actual disability prong, the Fourth Circuit said.


“Although short-term impairments qualify as disabilities only if they are 'sufficiently severe,' it seems clear that the serious impairment alleged by Summers is severe enough to qualify,” the court said.  

 


In the appendix to the EEOC's 2011 final regulations on the ADAAA, the agency said “duration of an impairment is one factor that is relevant to determining whether the impairment substantially limits a major life activity,” the court said, citing 29 C.F.R. § 1630.2 (j) (1) (ix).

But the EEOC appendix also states that while “impairments that last only for a short period of time are typically not covered” as ADA disabilities, such impairments “may be covered 'if sufficiently severe,' ” the court said.

If Summers plausibly alleged his impairment was “sufficiently severe” that it substantially limited his ability to walk, he may have an ADA actual disability, even if the condition was temporary and he was expected to recover, the Fourth Circuit said.

Lower Court Cited Bad Law

When it amended the ADA, Congress said the courts had construed the term “disability” too narrowly and that it intended to “liberalize the ADA 'in favor of broad coverage,' ” the Fourth Circuit said.

The EEOC, pursuant to authority delegated by Congress to construe “disability” more generously, adopted new regulations providing an impairment lasting less than six months can constitute a disability, the court said.

“Although short-term impairments qualify as disabilities only if they are 'sufficiently severe,' it seems clear that the serious impairment alleged by Summers is severe enough to qualify,” the court said.

In the appendix to its regulations, the EEOC said a person with a 20-pound lifting restriction lasting several months is an example of someone who might have a disability under the ADA Amendments Act despite the temporary nature of the impairment, the court said.

If the EEOC would consider that individual as having a disability, “then surely a person whose broken legs and injured tendons render him completely immobile for more than seven months is also disabled,” the court said.

The district court erred by relying on pre-ADA Amendments Act case law in dismissing Summers's claim, the Fourth Circuit said.

“In holding that Summers's temporary injury could not constitute a disability as a matter of law, the district court erred not only in relying on pre-ADAAA cases but also in misapplying the ADA disability analysis,” the Fourth Circuit said.

The district court reasoned that because Summers could have worked with a wheelchair, he must not be disabled under the ADA.

“This inverts the appropriate inquiry,” the appeals court said. “A court must first establish whether a plaintiff is disabled by determining whether he suffers from a substantially limiting impairment. Only then may a court ask whether the plaintiff is capable of working with or without an accommodation. If the fact that a person could work with the help of a wheelchair meant that he was not disabled under the Act, the ADA would be eviscerated.”

Deference to EEOC Regulations

Altarum argued the EEOC regulations defining disability to include short-term impairments are not entitled to judicial deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Altarum contended Congress's intent “not to extend ADA coverage to those with temporary impairments expected to fully heal is evident” because such a “dramatic expansion of the ADA” would have been accompanied by “some pertinent statement of congressional intent.”

Under the Chevron analysis, a court asks whether Congress has “directly spoken” to the precise question at issue and if so, it applies Congress's clear intent, the Fourth Circuit said. If the statute is silent or ambiguous, then the court asks whether the agency's interpretation was reasonable, the court said.

The court disagreed with Altarum that Congress's intent to exclude ADA coverage from temporarily impaired employees was “evident.” Although Congress maintained the “substantial” limitation requirement for a covered disability, Congress also clearly was correcting what it considered “overly restrictive” Supreme Court interpretations and clearly was directing courts to “construe the amended statute as broadly as possible,” the Fourth Circuit said.

While the ADAAA sets a six-month minimum requirement with respect to “regarded as” disabilities, Congress placed “no such durational requirement for 'actual' disabilities, thus suggesting that no such requirement was intended,” the court said.

Given that legislative context, “the EEOC's decision to define disability to include severe temporary impairments entirely accords with the purpose of the amended Act,” the court said.

“The stated goal of the ADAAA is to expand the scope of protection available under the Act as broadly as the text permits,” Motz wrote. “The EEOC's interpretation--that the ADAAA may encompass temporary disabilities--advances this goal.”

“Moreover, extending coverage to temporarily impaired individuals produces consequences less 'dramatic' than Altarum seems to envision,” the court said. “Prohibiting employers from discriminating against temporarily disabled employees will burden employers only as long as the disability endures. Temporary disabilities require only temporary accommodations.”

Altarum argued that even if the court defers to the EEOC's regulations, Summers's temporary impairment can't be an ADA disability because it was caused by an injury, not a permanent underlying condition.

But the court said “nothing about the ADAAA or its regulations suggest a distinction between impairments caused by temporary injuries and impairments caused by permanent conditions.”

The Fourth Circuit therefore revived Summers's ADA claim and remanded to the district court for further proceedings.

David Scher and R. Scott Oswald of the Employment Law Group, PC, in Washington represented Summers. Paul W. Coughenour and Carly E. Osadetz of Clark Hill PLC in Detroit represented the Altarum Institute.

 

To contact the reporter on this story: Kevin P. McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com


Text of the decision is available at http://www.bloomberglaw.com/public/document/Carl_Summers_v_Altarum_Institute_Corporation_Docket_No_1301645_4t/1.