Norton v. Assisted Living Concepts, Inc., 786 F. Supp.2d 1173 (E.D. Tex 2011)

Disability Under the ADAAA–  Applying the Americans with Disabilities Act Amendment Act (ADAAA) amended definition of disability under the actual disability prong to the facts in this case, the court concluded that the employee Norton’s renal cancer is capable of qualifying as a disability under the ADA. Neither side disputed that renal cancer, when active, constitutes a “physical impairment” under the statute. Further, the court found that renal cancer, when active, 29 C.F.R. § 1630.2(h)(1) “substantially limits” the “major life activity” of “normal cell growth.” See 42 U.S.C. §12102(4)(A) & (B); 42 U.S.C. § 12102(2)(B). Therefore, the fact that Norton may have been in remission when he returned to work at the defendant is of no consequence. See 42 U.S.C. §12102(4)(D). Norton’s renal cancer qualifies as a disability even if the only “major life activity” it “substantially limited” was “normal cell growth.” See 42 U.S.C. §12102(4)(C). The court’s conclusion that Norton’s renal cancer is capable of qualifying as a disability under the ADA is bolstered by the EEOC’s interpretation and implementation of the ADAAA. The EEOC’s final regulations implementing the amendments provide a list of impairments that, because they substantially limit a major life activity, will “in virtually all cases, result in a determination of coverage under [the actual disability prong].” 29 C.F.R. § 1630.2(j)(3)(ii). One of the impairments listed is “cancer” because it “substantially limits [the major life activity] of normal cell growth.” Id. at § 1630.2(j)(3)(iii). See also the EEOC’s interpretive guidance accompanying its final regulations, 76 FR 16978-01, 2011 WL 1060575, at 17007, 17011, & 17012 (citing examples in the legislative history of the ADAAA where Congress named cancer as the kind of impairment that would qualify as a disability under the amended Act). See also Feldman v. Law Enforcement Assocs. Corp., No. 5:10-cv-08-BR, 2011 WL 891446 (E.D.N.C. March 10, 2011) (holding that employee who suffered from episodic flare ups of multiple sclerosis (MS) had plausible claim of disability under the ADA as amended because when active, the MS substantially limited the employee’s normal neurological functions, which is a major life activity under the amended Act); Chalfont v. U.S. Electrodes, No. 10-2929, 2010 WL 5341846 (E.D. Pa. Dec. 28, 2010) (holding that employee with leukemia, heart disease and remissive cancer had plausible claim of disability under the ADA as amended because his maladies substantially limited his normal cell growth and circulatory functions, both of which are major life activities under the amended Act); Horgan v. Simmons, 704 F.Supp. 2d 814 (N.D. Ill. 2010) (holding that employee with HIV positive status had plausible claim of disability under the ADA as amended because the normal functioning of his immune system, a major life activity under the amended Act, was substantially limited).  In an unusual move, the court, pursuant to Rule 56(f), gave the defendant notice of the court’s intention to grant summary judgment for Norton under Rule 56(f)(1) on the issue of his cancer constituting a disability under the ADA and gave the defendant twenty days to respond.

Blanchard v. Brazos Forest Products, 353 S.W.3d 569 (Tex.App.– Fort Worth 2011, pet.filed)

Unemployment Compensation Appeal Procedures– Unemployment compensation claimant sought review of a decision of the state Workforce Commission denying his claim.  The district court granted summary judgment to the employer.  The Court of Appeals held that substantial evidence supported finding that claimant’s actions in the performance of his job constituted misconduct disqualifying him from receiving unemployment compensation.  Judicial review of a TWC determination is by trial de novo based on the substantial evidence rule. Tex.Lab.Code § 212.202(a).  The trial court conducts an evidentiary trial to determine wether the agency’s ruling is free of taint of any illegality and is reasonably supported by substantial evidence.  In making this determination , the issue is not whether TWC made the correct decision; it is instead whether the evidence introduced before the trial court show facts in existence at the time of the TWC decision that reasonably support the decision; that is , whether reasonable minds could have reached the same conclusion.   The true test is not whether the agency reached the correct conclusion, but whether some reasonable basis exists in the record for the action taken by the agency.   Because substantial evidence is more than a mere scintilla of evidence but less than a preponderance of evidence, the evidence may preponderate against the TWC decision but still amount to substantial evidence.  TWC  remains the primary factfinding body, and the reviewing court may not substitute its judgment for TWC’s on controverted fact issues; the question before the trial court is one of law.  Since this was a summary judgment case, the trial court was required to accept as true all of Blanchard’s evidence, indulge every reasonable inference and resolve any doubts in his favor, and determine whether the summary judgment evidence showed, as a matter of law, that facts in existence at the time of TWC’s decision reasonably supported the decision; i.e., whether reasonable minds could have reached the same conclusion.  Blanchard’s contention was that the trial court must have applied the wrong evidentiary standard because he presented evidence creating genuine issues of material fact in response to defendant’s summary judgment evidence.  But the question to be decided by the trial court on summary judgment was whether defendant proved as a mater of law that Blanchard engaged in misconduct as defined by the labor code or whether fact issues precluded summary judgment.  The trial court was required to determine whether defendant proved as a matter of law that substantial evidence supported TWC’s decision to deny benefits.  In a concurring opinion, the judge called the entire review process involving the TWC to be a “sham” because if there is any evidence amounting to more than a scintilla before the TWC that supports its decision then, as a matter of law, the TWC cannot be reversed.  The judge stated that the employee showed substantial conflicting evidence but the applicable standard required it to be ignored.  The judge called upon the Supreme Court to come up with a new standard of review to be applied to summary judgment cases involving appeals from administrative decisions based on substantial evidence.

Smith v. City of Lubbock, 351 S.W.3d 584 (Tex.App.– Amarillo 2011, pet.filed)

Worker’s Compensation-Underinsured Motorist Policy– Employee who was struck by a drunk driver while working in the course and scope of his employment brought action against his employer and the insurance carrier to collect damages under employer’s underinsured motorist policy, even though he had already received worker’s compensation benefits.  The district court entered summary judgment in favor of employer city and insurer. The insurance company conceded on appeal that the judgment for it should be reversed and remanded to trial court.  The court of appeals held that worker’s compensation laws barred additional recovery against the employer city. The city had purchased an underinsured policy for its employees, even though the city had worker’s compensation that covered them for injuries in the scope of employment.  The employee argued that the worker’s compensation only precluded work related injuries arising from common law torts as opposed to a contract.  The court of appeals rejected this contention holding that the worker’s compensation statute prohibits further recovery against the employer.

Acosta v. Government Employees Credit Union, 351 S.W.3d 637 (Tex.App. – El Paso 2011, nwh)

Civil Rights – Age & National Origin Discrimination – Employee filed suit under the Texas Commission on Human Rights Act (TCHRA) based on a national origin and age claim.  The district court granted a motion for summary judgment which was affirmed by the Court of Appeals ruling that the employee’s evidence failed to negate employer’s claim that she was fired for violating member confidentiality policy.  The Court examined the claim under the McDonnell Douglas burden shifting analysis.  The Court held that the employee established a prima facie case, which is not an onerous burden.  However, the Court held that the employee’s claim was so weak as to fail regarding the national origin discrimination claim.  As to the age claim, the Court stated that the employee must prove that she was within the protected class, was discharged, was qualified for the position, and was either replaced by someone outside the protected class, replaced by someone younger, or was otherwise discharged because of her age.  The Court held that a showing that the fact that the replacement was only four years younger was not significant enough to prove age discrimination.  The Court stated that he overwhelming body of cases in most circuits have held that age differences of less than ten years are not significant enough to make out the fourth part of the age discrimination case.

Hernandez v. Grey Wolf Drilling LP, 350 S.W.3d 281 (Tex.App.– San Antonio 2011, nwh)

Civil Rights- Age Discrimination & Retaliation – Former employee brought action against employer alleging age discrimination and retaliation in violation of the TCHRA.  The district court entered summary judgment in employer’s favor.  The Court of Appeals held that the summary judgment was improper on the employee’s claims and reversed the case.  The Court classified the case as a “pretext” case (neither party argued that it was a “mixed-motive” case).  The employer argued that the employee should have to prove that age was the “but for” reason for the discharge; however, the Court held that because the TCHRA contains a “motivating factor” language that the test was not “but for” but “a motivating factor”.  The Court held that the employee’s affidavit provided more than a scintilla of evidence on all four elements of his prima facie claim.  Regarding the retaliation claim, the employee’s affidavit stated that he had complained to his supervisor about being called an “old man” and “old fart”.  The Court held that this was sufficient to raise a question as to the employee engaging in a protected activity and being terminated for it.

Schroeder v. Greater New Orleans Federal Credit Union, 644 F.3d 1016 (5th Cir. 2011)

Federal Credit Union Act Whistleblower Provision– The Federal Credit Union Act (FCUA), 12 U.S.C. § 790(b), makes it illegal for an insured credit union to retaliate against an employee who provides information to the National Credit Union Administration (NCUA) or U.S. Attorney General regarding a possible violation of any law by the credit union.  The Fifth Circuit reversed the district court’s summary judgment for the credit union finding that the plaintiff’s evidence was sufficient to create an issue of fact whether several adverse employment actions against plaintiff were caused by the report by plaintiff to the NCUA regarding the credit unions’s possible law violations.