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April 2010 Archives

Court of Appeals covering Michigan, Ohio, Kentucky and Tennessee Finds LTD Carrier's File Review and Reasoning Defective

In a recent long-term disability case, the claimant, "Adrienne," was a project manager and master plumber covered by a short-term and long-term disability plan (the Plan) when she went on disability leave due to multiple sclerosis and related conditions. Kemper National Services, Inc. and later Broadspire Services, Inc. administered the Plan. The Plan paid Adrienne short term disability benefits for twenty-four months but denied Adrienne's claim for long term disability benefits on the grounds that she was not disabled under the "any-occupation" standard in the Plan. The district court dismissed Adrienne's case so she appealed to the Sixth Circuit.

Airline Settles Disability Discrimination Suit

The Equal Employment Opportunity Commission ("EEOC") and Pinnacle Airlines recently settled a lawsuit against the airline for disability discrimination in violation of the Americans with Disabilities Act ("ADA"). According to the EEOC, the airline terminated Vickie Cowie because she walked too slowly.  A short time after commencing her employment with the airline as an administrative employee, working primarily behind a desk, Ms. Cowie saw her doctor about pain in her knee. Her physician diagnosed her with arthritis.  Cowie continued working and performed her job competently, despite the fact that the arthritis caused her to walk with a limp and use a cane. The EEOC filed suit on Ms. Cowie's behalf, alleging that the airline terminated her because the pace of her gait was too slow.  Rather than trying the case in court, the airline agreed to enter a public settlement agreement. As a part of the agreement, the airline paid Ms. Cowie $20,000 and agreed to reform its human resources policies and procedures.  Employees who are treated unfairly because of their disabilities should contact an employment lawyer immediately and file a charge with the EEOC within 180 days of the adverse treatment.

Employers Must Provide Reasonable Accommodations for Disabled Workers to get to Work

During her employment as a cashier with Rite-Aid, Jeanette Colwell became blind in one eye due to a medical condition completely unrelated to her employment. Ms. Colwell informed her supervisors that it became difficult for her to drive at night due to her blindness and provided a note from her doctor regarding the same. Her supervisor, however, refused to schedule her exclusively during the day because the supervisor felt it would be unfair to other employees. Ms. Colwell eventually resigned her employment by submitting a note indicating that she felt she was treated unfairly.

Ms. Colwell brought suit under the Americans with Disabilities Act "ADA" and the state equivalent. She argued that Rite-Aid constructively discharged her, failed to accommodate her blindness, and retaliated against her because of her disability. The parties agreed that Ms. Colwell did not require an accommodation once she arrived in the workplace, and the District Court therefore found that Rite-Aid did not fail to accommodate Colwell's disability. Colwell’s constructive discharge and retaliation claims were also summarily dismissed by the lower federal court.
On Colwell’s appeal, Rite-Aid argued that it had no duty to even consider changing Ms. Colwell's shift because Colwell's difficulties amounted to a commuting problem unrelated to the workplace, and the ADA does not require employers to accommdate such issues. The Third Circuit Court of Appeals disagreed and held that changing Ms. Colwell's working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates, even though it was technically outside of the workplace and working hours.  Employers are required under the ADA to provide reasonable accommdations to help alleviate their disabled employees' difficulties in getting to work, so employees should readily communicate those needs to their employers in order to intiate the process of accommodation.

Social Security Administrative Law Judges must be careful with credibility determinations

In March 2010, the 7th Circuit remanded two Social Security disability cases to Administrative Law Judges in Illinois, finding that they had not reasonably supported denying benefits to claimants. Parker v. Astrue, Nos. 09-2270, 09-2722 (7th Cir. 2010). The Judge denied benefits to both claimants despite stating that their medcially determinable impairments could have reasonably produced the symptoms alleged but that the witnesses were not "entirely credible."

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