Welder's Allegations of Disabilities Bias Fit Under Amended ADA, Appeals Court Finds

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By Patrick Dorrian  

Dec. 17 --A pipe welder in Illinois stated a claim under the amended Americans with Disabilities Act with allegations that he was fired for seeking medical treatment for an episode where his blood pressure spiked and he experienced sporadic vision loss, the U.S. Court of Appeals for the Seventh Circuit held Dec. 16 (Gogos v. AMS Mech. Sys., Inc., 7th Cir., No. 13-2571, 12/16/13).

Reviving Anthimos Gogos's case against AMS Mechanical Systems Inc., the appeals court said a lower court erred in ruling that Gogos's alleged disability didn't qualify for coverage under the ADA because it was “transitory” and “suspect.” Under the ADA Amendments Act, an impairment may qualify for ADA protection even if it is “transitory and minor” or episodic, the appeals court said.

Fired While Leaving Work for Treatment

Gogos was hired by AMS in December 2012 as a welder and pipe-fitter. He has 45 years of experience as a pipe welder, the court recounted.

According to Gogos, he has taken medicine to reduce his high blood pressure for more than eight years, and a month into his AMS tenure his blood pressure spiked to “very high.” In addition, he alleged that he experienced intermittent vision loss or blindness, sometimes for a few minutes at a time.

On Jan. 30, 2013, Gogos discovered shortly after arriving at AMS that his right eye was red, and he received permission from his supervisor to leave work to seek immediate medical treatment. As he was leaving, he saw his general foreman and mentioned that he was going to the hospital, saying “my health is not very good lately.”

Gogos contends that the foreman immediately terminated his employment. After filing a discrimination charge with the EEOC, Gogos sued AMS under the ADA, attaching copies of his EEOC charge and right-to-sue letter to his complaint.

The U.S. District Court for the Northern District of Illinois dismissed his case for lack of subject-matter jurisdiction. “It reasoned that Gogos's medical conditions were 'transitory' and 'suspect' and therefore did not qualify as disabilities under the ADA,” the appeals court said.

The district court also denied Gogos's motion to reconsider, finding that he failed to show he pursued his administrative remedies with the EEOC prior to suing. Gogos appealed.

Health Episodes Covered by ADA

Reversing and remanding the case for further consideration, the Seventh Circuit said the lower court erred in ruling that Gogos didn't establish that he exhausted his administrative remedies. He attached his EEOC charge and right-to-sue letter to his complaint, the appeals court said.

The appeals court said it assumed that the lower court really meant to dismiss Gogos's complaint for failure to state a plausible claim for relief under the ADA rather than for a supposed lack of jurisdiction. That too, however, was error, it ruled.

The 2008 amendments to the ADA expanded the law's coverage and recognized for the first time that an impairment may rise to the level of a protected “disability” even if it is “transitory and minor,” the appeals court said. An impairment that is “episodic” or in remission also rises to the level of a disability under the ADAAA “if it would substantially limit a major life activity when active,” the court said.

The court found that Gogos's Jan. 20, 2013, blood-pressure spike and intermittent blindness were covered under the amended law even though they occurred during a single episode. It said Gogos attributed both issues to his long-term hypertension and that the EEOC's regulations include high blood pressure as an example of an episodic impairment that may qualify for ADA protection.

“[T]he relevant issue is whether, despite their short duration in this case, Gogos's higher-than-usual blood pressure and vision loss substantially impaired a major life activity when they occurred,” the court said. Under that standard, it concluded, “Gogos alleged sufficient facts plausibly showing that he is disabled.”

He also alleged sufficient facts on the other elements of a prima facie case of disability discrimination, the court ruled. It said his 45 years of experience as a pipe welder showed that he was qualified for his position and that AMS's decision to discharge him showed that he experienced an adverse employment action.

EEOC Rules Support Alternative Finding

The appeals court found that Gogos alternatively established the “disability” prong of a prima facie ADA claim with allegations that he had suffered from chronic hypertension for years, regardless of whether he may have been able to control his condition with medication.

That was so, the court said, because another change made by the ADAAA was to eliminate consideration of any mitigating measures when determining whether an individual is disabled for purposes of federal discrimination law. The court found that the manner in which that change is meant to apply is explained in an example listed in the EEOC's ADAAA regulations, which was especially pertinent to Gogos's case.

The example states that someone who started taking medication for hypertension before experiencing substantial limitations related to his impairment still will be an “individual with a disability” for purposes of the ADA if he would be substantially limited in functions of the cardiovascular or circulatory system without the medication, the court said. That language was “directly on point here,” the court ruled.

 

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

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


Text of the opinion is available at http://www.bloomberglaw.com/public/document/Anthimos_Gogos_v_AMSMechanical_System_Incorpo_Docket_No_1302571_7.