Transcript ANNUAL UPDATE OF LABOR AND EMPLOYMENT LAW

Society for Human Resource Management
September 30, 2011
Annual Conference
MANAGING WORKPLACE
PERFORMANCE IN COMPLIANCE
WITH THE FMLA AND ADAAA
Patricia M. Olsson
Moffatt Thomas
The EEOC’s Final ADAAA
Regulations
Moffatt Thomas
The Final Regulations
 Implement Title I (Employment) of
ADAAA
 Published March 25, 2011
 Effective May 24, 2011
 Found at 29 C.F.R. Part 1630
 Include changes to the Interpretive
Guidance (Appendix)
The Three Definitions of
Disability
 A physical or mental impairment that
substantially limits one or more of the
major life activities of such individual (the
“actual disability” prong);
 A record of such an impairment (the
“record of” prong); or
 Being regarded as having such an
impairment (the “regarded as” prong).
The Purpose of the ADAAA
 The primary purpose of the ADAAA was
to make it easier for people with
disabilities to obtain protection under the
ADA.
29 C.F.R. § 1630.1(c)(4)
Definition of Physical
Impairment Is Little Changed
 Any physiological disorder or
condition, cosmetic disfigurement, or
anatomical loss affecting one or more
body systems, such as:
neurological
respiratory (including speech organs)
reproductive
immune (new)
lymphatic
musculoskeletal
digestive
circulatory (new)
skin
29 C.F.R. § 1630.2(h)(1)
special sense organs
cardiovascular
genitourinary
hemic
endocrine
Definition of Mental
Impairment Is Little Changed
 Any mental or psychological disorder,
such as:
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an intellectual disability (formerly termed
“mental retardation”)
organic brain syndrome
emotional or mental illness
specific learning disabilities
29 C.F.R. § 1630.2(h)(2)
Major Life Activities
 The prior reg’s non-exhaustive list of MLAs
included caring for oneself, performing manual
tasks, seeing, hearing, walking, speaking,
breathing, learning, and working.
 The new reg adds eating, sleeping, standing,
sitting, reaching, lifting, bending, reading,
concentrating, thinking communication, and
interacting with others to the non-exhaustive list
of MLAs.
29 C.F.R. § 1630.2(i)(1)(i)
Major Bodily Functions
as MLAs
 ADAAA included the operation of major bodily functions
as MLAs and gave as examples: functions of the immune
system, normal cell growth, and digestive, bowel,
bladder, neurological, brain, respiratory, circulatory,
endocrine, and reproductive functions.
 The final regs add other examples: special sense organs,
skin, genitourinary, cardiovascular, hemic, lymphatic, and
musculoskeletal functions
 The operation of a major bodily function includes the
operation of an individual organ within a body system.
29 C.F.R. § 1630.2(i)(1)(ii)
Rules for Determining Whether
Other Activities Are MLAs
 In determining other examples of major
life activities, the term “major” shall not
be interpreted strictly to create a
demanding standard for disability.
 Whether an activity is a “major life
activity” is not determined by reference
to whether it is of “central importance to
daily life.”
29 C.F.R. § 1630.2(i)(2)
“Substantially Limits” Is
Undefined
 The final regs do not define the term
“substantially limits” because a definition would
cause greater focus on the disability issue.
 The final regs adopt nine rules of construction
to be used in determining whether an
impairment “substantially limits” a MLA.
 Congress passed these rules to make it easier
to establish an actual disability.
29 C.F.R. § 1630.2(j)(1)(i)-(ix)
Rule of Construction No. 1:
Not a Demanding Standard
 The term “substantially limits” shall be
construed broadly in favor of expansive
coverage and is not meant to be a
demanding standard.
29 C.F.R. § 1630.2(j)(1)(i)
Rule of Construction No. 2:
Significant Restriction Not
Required
 An impairment is a disability if it substantially
limits the ability of an individual to perform a
MLA as compared to most people in the
general population. An impairment need not
prevent, or significantly or severely restrict, the
individual from performing a major life activity in
order to be considered substantially limiting.
However, not every impairment will constitute a
disability.
29 C.F.R. § 1630.2(j)(1)(ii
Rule of Construction No. 3:
Extensive Analysis Not Required
 The primary object of attention should be
whether discrimination has occurred.
Whether an impairment “substantially
limits” a MLA should not demand
extensive analysis.
29 C.F.R. § 1630.2(j)(1)(iii)
Rule of Construction No. 4:
Lower Functional Limitation
 Whether impairment substantially limits a MLA
still requires an individualized assessment.
 However, in determining whether a particular
individual’s impairment substantially limits a
MLA, the term “substantially limits” shall be
interpreted to require a lower degree of
functional limitation than the standard applied
prior to the ADAAA.
29 C.F.R. § 1630.2(j)(1)(iv)
Rule of Construction No. 5:
Scientific Analysis Not Required
 The comparison of an individual’s
performance of a major life activity to the
performance of the same major life
activity by most people in the general
population usually will not require
scientific, medical, or statistical analysis.
 However, such evidence may be used if
appropriate.
29 C.F.R. § 1630.2(j)(1)(v)
Rule of Construction No. 6:
Beneficial Effects of Mitigating
Measures
 The determination of whether an
impairment substantially limits a major
life activity shall be made without regard
to the ameliorative (positive) effects of
mitigating measures (other than ordinary
eyeglasses or contact lenses).
29 C.F.R. § 1630.2(j)(1)(vi)
Non-exhaustive List of
Mitigating Measures
 Medication
 Medical Supplies, Equipment, and Appliances
 Low-vision Devices (Not Ordinary Eyeglasses or Contact
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Lenses)
Prosthetics
Hearing Aids and Cochlear Implants
Mobility Devices
Oxygen Therapy Equipment
Learned Behavioral or Adaptive Neurological
Modifications
Psychotherapy, Behavioral Therapy, and Physical
Therapy
29 C.F.R. § 1630.2(j)(5)
Relevance of Mitigating
Measures to Other Issues
 The use or non-use of mitigating
measures, and any consequences
thereof, including any ameliorative and
non-ameliorative effects, may be
relevant in determining whether an
individual is qualified or poses a direct
threat to safety.
Appendix to 29 C.F.R. Part 1630
Eyeglasses and
Contact Lenses
 The ameliorative effects of ordinary
eyeglasses or contact lenses shall be
considered in determining whether an
impairment substantially limits a MLA.
29 C.F.R. § 1630.2(j)(1)(vi)
Rule of Construction No. 7:
Impairment Episodic or in
Remission
 An impairment that is episodic or in
remission is a disability if it would
substantially limit a MLA when active.
29 C.F.R. § 1630.2(j)(1)(vii)
Rule of Construction No. 8:
Limitation of Only One MLA May
Be a Disability
 An impairment that substantially limits
one MLA need not substantially limit any
other MLA in order to be considered a
substantially limiting impairment.
29 C.F.R. § 1630.2(j)(1)(viii)
Rule of Construction No. 9: Short
Term Impairment May Be Disabling
 The effects of an impairment that lasts or
is expected to last less than six months
can be substantially limiting.
29 C.F.R. § 1630.2(j)(1)(ix)
Predictable Assessments
 Applying the 9 rules of construction in conducting
individualized assessments of some types of impairments
will result in a finding of an actual disability in virtually all
cases because the impairment substantially limits a MLA:
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Deafness
Blindness
Intellectual Disability (fka Mental Retardation)
Partially Or Completely Missing Limbs
Mobility Impairments Requiring Wheelchair Use
Autism
Cancer
Cerebral Palsy
Predictable Assessments
(cont’d)
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Diabetes
Epilepsy
HIV Infection
Multiple Sclerosis
Muscular Dystrophy
Major Depressive Disorder
Bipolar Disorder
Post-Traumatic Stress Disorder
Obsessive-Compulsive Disorder
Schizophrenia
29 C.F.R. § 1630.2(j)(3)
Other Impairments
 For other impairments, the “condition, manner or
duration” framework may help to determine whether an
individual is substantially limited by the impairment. The
employer may consider:
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the difficulty, effort, or time required by the individual to
perform a MLA;
the pain experienced by the individual when performing
a MLA;
the length of time the individual can perform the MLA;
and
the length of time it takes the individual to perform the
MLA;
as compared to most people in the general population.
29 C.F.R. § 1630.2(j)(4)(i)-(ii
Condition, Manner or Duration
 Other considerations may include:
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the way an impairment affects the
operation of a major bodily function; and
the non-ameliorative effects of mitigating
measures (e.g., negative side effects of
medication, burdens associated with
following a particular treatment regimen).
29 C.F.R. § 1630.2(j)(4)(ii)
Condition, Manner or Duration
(cont’d)
 The focus is on how a MLA is substantially
limited, and not on what outcomes an individual
can achieve.
 For example, someone with a learning disability
may achieve a high level of academic success,
but may nevertheless be substantially limited in
the MLA of learning because of the additional
time or effort he or she must spend to read,
write, or learn compared to most people in the
general population.
29 C.F.R. § 1630.2(j)(4)(iii)
Major Life Activity of Working
 The discussion of the MLA of working has been
removed from the regs.
 In most instances, an individual with a disability
will be able to establish coverage by showing
substantial limitation of a major life activity other
than working.
 Impairments that substantially limit a person’s
ability to work usually substantially limit one or
more other major life activities.
Appendix to 29 C.F.R. Part 1630
The Second Prong: “Record
of” Disability
 An individual will be considered to have
a record of a disability if the individual:
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has a history of an impairment that
substantially limited one or more major life
activities when compared to most people in
the general population,
or was misclassified as having had such
an impairment.
29 C.F.R. § 1630.2(k)(2)
Reasonable Accommodation
for a “Record of” Disability
 An individual with a record of a substantially
limiting impairment may be entitled, absent
undue hardship, to a reasonable
accommodation if needed and related to the
past disability.
 For example, an employee with an impairment
that previously limited, but no longer
substantially limits, a MLA may need leave or a
schedule change to permit him or her to attend
follow-up or “monitoring” appointments with a
health care provider.
29 C.F.R. § 1630.2(k)(3)
The Third Prong: “Regarded
as” Disabled
 The third prong of the definition of
disability protects an individual who is
“regarded as” having a disability.
 This means that an individual cannot be
subjected to an action prohibited by the
ADA because of an actual or perceived
impairment that is not both transitory and
minor.
29 C.F.R. § 1603.2(g)(1)(iii)
“Substantially Limits” and
“MLAs” Are Irrelevant
 An individual is “regarded as” disabled if the
individual has been subjected to a prohibited
action because of an actual or perceived
impairment, whether or not:
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the impairment substantially limits a MLA;
the impairment was perceived to substantially limit
a MLA, or
the individual has a record of an impairment that
substantially limits a MLA.
29 C.F.R. §§1630.2(g)(3) and 1630.2(l)(1)
No Reasonable Accommodation
for “Regarded as” Disabilities
 An individual who is disabled solely
because he or she is “regarded as”
having an impairment is not entitled to a
reasonable accommodation.
29 C.F.R. §1630.9(e)
Liability in “Regarded as”
Cases
 The “regarded as” prong should become the
primary means of establishing liability in ADA
cases that do not involve reasonable
accommodation, because the claimant need not
establish an impairment that substantially limits
a MLA or a record of such an impairment.
 Consideration of coverage under first two
prongs will generally not be necessary unless
reasonable accommodation is an issue.
29 C.F.R. §1630.2(g)(3)
Liability in “Regarded as”
Cases (Cont’d)
 A “regarded as” claimant who merely
establishes that he or she was “regarded
as” impaired does not establish liability
under the ADA.
 The “regarded as” claimant must
establish that he or she was subjected to
a prohibited action because he or she
was regarded as impaired, in order to
establish liability under the ADA.
29 C.F.R. §1630.2(l)(3)
Prohibited Actions
 Include (but are not limited to):
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refusal to hire
demotion
placement on involuntary leave
termination
exclusion for failure to meet a qualification standard
harassment
denial of any other term, condition, or privilege of
employment
29 C.F.R. §1630.2(l)(1)
“Transitory and Minor”
 The employer has a defense to the
“regarded as” claim if the employer can
show that the impairment is (in the case
of an actual impairment) or would be (in
the case of a perceived impairment) both
“transitory” and “minor.”
29 C.F.R. §1630.15(f)
“Transitory and Minor”
(Cont’d)
 “Transitory” is defined as lasting or
expected to last six months or less.
 “Minor” is undefined.
29 C.F.R. §1630.15(f)
“Transitory and Minor”
(Cont’d)
 The employer must establish that the
impairment is both transitory and minor to avoid
coverage under the ADA.
 An impairment that may last for six months or
less, but is not minor, is covered.
 An impairment that is minor, but lasts or is
expected to last for more than six months, is
covered.
29 C.F.R. §1630.15(f)
“Transitory and Minor” Is an
Objective Standard
 Whether the impairment is or would be
“transitory and minor” is determined by
an objective standard.
 The employer cannot defeat a “regarded
as” claim simply by demonstrating that
the employer subjectively believed the
impairment was transitory and minor.
29 C.F.R. §1630.15(f)
Examples of “Regarded as”
Discrimination
 An employer who terminates an employee because the
employer believes the employee has bipolar disorder has
violated the ADA even if the employer believed the
employee’s impairment was transitory and minor,
because bipolar disorder is not objectively transitory and
minor.
 Likewise, an employer who terminated an employee with
an objectively “transitory and minor” hand wound,
mistakenly believing it to be symptomatic of HIV infection,
has violated the ADA, since the covered entity took a
prohibited employment action based on a perceived
impairment (HIV infection) that is not “transitory and
minor.”
Appendix to 29 C.F.R. Part 1630
Summary Points
 Discrimination claims, other than failure to accommodate
claims, will be brought under third prong, where individual
need not prove that impairment substantially limits a MLA
or is perceived to substantially limit a MLA.
 “Predictable assessments” reg provides a list of
impairments that will almost always be disabilities.
 Regs provide “condition, manner and duration” analysis,
which may be helpful in analyzing impairments that are
not in the “predictable assessments” category.
 Analysis of effect of impairment on MLA of working will
generally be unnecessary.
Take-Aways
 The definitions of “disability,” “substantially
limits” and “major life activities” are now so
broad that some lawyers recommend that
employers:
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assume that everyone has a disability,
treat every impairment as a disability,
treat every employee request as a potential ADA
claim, and
regard every adverse employment action related to
an applicant’s or employee’s physical, mental or
emotional condition as a potential disability
discrimination claim under the ADA.
Take-Aways (Cont’d)
 Train supervisors and managers how to spot ADA issues
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and when to call HR.
Expect more accommodation requests especially
involving scheduling and leave.
Refresh your understanding of “reasonable
accommodations.”
Read EEOC’s Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the
Americans with Disabilities Act. http://wws.eeoc.gov/policy/docs/accommodation.html
Watch for EEOC to update its publications on reasonable
accommodations.
ADAAA Resources
 The EEOC’s Final Regulations Implementing the ADAAA
 Questions and Answers on the Final Rule Implementing
the ADA Amendments Act of 2008
 Questions and Answers for Small Businesses: The Final
Rule Implementing the ADA Amendments Act of 2008
 Fact Sheet on the EEOC’s Final Regulations
Implementing the ADAAA
 The ADA: A Primer for Small Business
http://www.eeoc.gov/laws/types/disability.cfm
Recent Developments
Under the FMLA
Patricia M. Olsson
September 30, 2011
Moffatt Thomas
GOAL OF PRESENTATION
 Several recent U.S. Supreme Court and
Ninth Circuit Court of Appeals FMLA
cases.
 Review both facts and holdings of the
Court.
 Then, if relevant, apply ADAAA and
2011 ADAAA Regulations to the facts in
cases.
Nevada Dep’t of Human Resources
v. Hibbs, 538 U.S. 21 (2003)
 State employee took twelve (12) weeks
intermittent FMLA leave to care for his
sick wife.
 Before leave expired, state agency told
employee to return to work or lose his
job.
 Employee lost his job and sued for
damages.
Nevada Dep’t of Human Resources
v. Hibbs, 538 U.S. 21 (2003)
(cont’d)
 State defendant based on the Eleventh
Amendment.
 HELD: Congress abrogated State
immunity via the FMLA and State can be
sued for money damages.
Nevada Dep’t of Human Resources
v. Hibbs, 538 U.S. 21 (2003)
(cont’d)
 Analysis under the ADAAA: N/A
Ragsdale v. Wolverine World Wide,
533 U.S. 81 (2002)
 Private employer gave employee thirty
(30) weeks of medical leave under its
own policy.
 Employer failed to immediately send
employee notice of FMLA leave and
employee’s rights and obligations under
FMLA.
 Employer terminated employee at the
end of leave, telling her FMLA
exhausted.
Ragsdale v. Wolverine World Wide,
533 U.S. 81 (2002)
(cont’d)
 Employee sued, arguing she had more leave
because employer did not give timely FMLA
notice.
 Lower courts held, pursuant to the D.O.L.
Reg’s, that leave did not start until notice given.
 U.S. Supreme Court accepted the case for
argument.
 HELD: D.O.L. could not expand the quantity of
leave authorized by Congress merely by
passing a regulation.
Analysis Under the ADAAA
Lewis v. United States, __ F.3d __
2011 WL2043241 (May 26, 2011)
 Lewis employed as director of a child
development center on Elemendorf Air
Force Base.
 In 2006, Lewis requested 120 days leave
without pay under the FMLA.
 Employer requested medical certification
and completion of the D.O.L. medical
certification form (WH-380).
Lewis v. United States, __ F.3d __
2011 WL2043241 (May 26, 2011)
(cont’d)
 In response, Lewis submitted:
a) Prescription from her psychiatrist;
b) A letter from her psychiatrist; and
c) Completed WH-380 form.
Lewis v. United States, __ F.3d __
2011 WL2043241 (May 26, 2011)
(cont’d)
 Employer told Lewis documents
insufficient.
 Lewis refused to submit more information,
and said that according to her doctor, she
had provided all necessary information.
 Employee deemed AWOL and
terminated.
 Lewis sued under Title VII and FMLA
retaliation.
Lewis v. United States, __ F.3d __
2011 WL2043241 (May 26, 2011)
(cont’d)
 HELD: Employer may request a
medical certification that provides
sufficient medical facts supporting the
conclusion that employee suffers from a
serious health condition.
Lewis v. United States, __ F.3d __
2011 WL2043241 (May 26, 2011)
(cont’d)
 Lewis’s WH-380 form stated:
Diagnosis post traumatic stress disorder,
employee needs therapy, medical treatment,
bed rest, two (2) prescription medications, and
120 days off work.
 Because form did not explain why Lewis was unable
to perform her work duties, and because there was
no discussion about whether additional treatments
would be required, it did not provide “a summary of
the medical facts supporting the diagnosis,” pursuant
to 5 U.S.C. § 6383(b)(3): Certification must state the
“appropriate medical facts.”
Lewis v. United States, __ F.3d __
2011 WL2043241 (May 26, 2011)
(cont’d)
 Also held: certification did not
provide the minimum information
required by 5 U.S.C. § 6383(b).
Analysis Under the ADAAA
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
 Brownfield began employment as a
police officer for the City of Yakima in
1999.
 In 2000, Brownfield suffered a closed
head injury while working.
 Employee was off work with symptoms
including reduced self awareness.
 Employee returned to work in July 2001.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 In 2004, Brownfield complained about
fellow officer, citing what Brownfield
called “unethical work practices.”
 His memorandum actually complained
about unfairness to him, Brownfield.
 Brownfield felt his partner was allowed to
work on other stuff when he had not
been allowed to work on SWAT because
he was assigned to DARE, as was his
partner.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 During the next year, Brownfield kept notes
about partner’s alleged failure to follow
procedures, partner’s abusive amounts of
overtime and comp time, and partner’s
lackadaisical approach to Police Athletic
League (“PAL”) duties, to which he was
assigned in addition to DARE.
 Brownfield reprimanded for failing to
schedule something, and forwarded his
notes regarding partner to the police chief.
 Followed that with another memo
complaining about his partner.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 In 2005, Brownfield’s sergeant met with
Brownfield and their lieutenant to discuss
Brownfield’s problems with his partner.
 During that meeting, Brownfield began to
swear and walked out of the meeting,
despite being ordered to remain.
 Sergeant walked out and found
Brownfield talking to another employee;
Brownfield swore at the sergeant and
told the sergeant to get out of the room.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 Brownfield was temporarily suspended
for insubordination.
 Later, Brownfield tried to explain his
conduct, saying that he thought he was
going to meet with the police chief, not
with two supervisors in his chain of
command.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 Two months later, in September 2005,
Brownfield had a disruptive argument
with another officer during muster.
 When Brownfield learned that the police
department was investigating him rather
than the other officer, he became visibly
upset, swore, and did not even speak in
full sentences.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 Later, Brownfield reported that he felt
himself losing control during a traffic stop
of a young child who was a passenger in
a vehicle; young child taunted
Brownfield, and he became so upset he
shook and “he was not sure what he
would do.”
 Backup was necessary.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 Later still, Yakima Police Department
(“YPD”) got a domestic violence call from
Brownfield’s estranged wife.
 A fellow officer reported Brownfield
making comments such as, “It’s not
important anyway,” “I’m not sure if it’s
worth it,” and “It doesn’t matter how this
ends.”
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 Based on this collection of incidents,
Brownfield was placed on administrative
leave in order to undergo a Fitness For Duty
Examination (“FFDE”).
 October 2005, M.D. conducting the FFDE
diagnosed Brownfield as suffering from “mood
disorder due to a general medical condition
with mixed features,” manifesting itself “in
poor judgment, emotional volatility, and
irritability,” which could be related to the 2000
head injury on the job.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 M.D. concluded Brownfield unfit for duty, and
disability permanent.
 Brownfield transferred from administrative to
FMLA leave.
 While on FMLA leave, Brownfield had another
car accident off duty involving neck and back
injuries; was released to return to work from that
incident by a doctor who focused on medical
conditions yet said he would not defer to a
different physician with respect to mental health
qualifications.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 May 2006, City was going to hold a pre-
termination meeting with Brownfield.
 Brownfield provided release from another
health care provider agreeing that he was unfit
for duty due to “emotional, cognitive,
behavioral, and physical problems.”
 Provider treated Brownfield throughout the
calendar year of 2006.
 December 2006, Brownfield’s physician
reported he could return to duty in the future
with continued treatment.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 Employer asked Brownfield to submit to another
exam by their physician.
 Brownfield attended first appointment, but not
the second scheduled by that physician, was
informed he would be terminated unless he
cooperated, and when Brownfield refused, was
terminated on the basis of insubordination and
unfitness for duty.
 Employee argued that the ADA forbade medical
examination unless his job performance
suffered.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 HELD: Because he was a police officer, the
business standard and the ADA allowed the
Yakima Police Department to request an
examination based on erratic behavior with
fellow employees before actual job
performance suffered.
(a) “Business Necessity” standard is sometimes
satisfied by prophylactic psychological
examinations, absent abuse by the employer,
when there is genuine reason (that meets the
reasonable person test) to doubt whether the
employee can perform job-related functions.
Brownfield v. Yakima,
612 F.3d 1140 (9th Cir. 2010)
(cont’d)
 ADDITIONALLY HELD: Employee’s
argument that the FMLA was violated
because employer requested second and
third opinions fails, because they were not
opinions on the same set of facts, but were
rather opinions during the course of a fluid
chain of events, and afforded the employee
additional opportunities to be found fit to
return to work.
Analysis Under the ADAAA
Traxler vs. Multnomah County,
596 F.3d 1007 (9th Cir. 2010)
 Facts: Traxler was employed as a
human resources specialist by
Multnomah County.
 In 2002, Employee took medical leave
under the FMLA – did not exhaust twelve
(12) weeks.
 In 2005, Employee took medical leave
due to a serious health condition.
Traxler vs. Multnomah County,
596 F.3d 1007 (9th Cir. 2010)
(cont’d)
 Traxler never took more than twelve (12)
weeks leave under the FMLA in any rolling
calendar year.
 In June 2005, Traxler was notified her
position would be eliminated July 1, 2005,
and was escorted out of the office.
 Traxler was placed on paid administrative
leave.
 Traxler then transferred to a lower paying
position (because her position had been
eliminated).
Traxler vs. Multnomah County,
596 F.3d 1007 (9th Cir. 2010)
(cont’d)
 Traxler continued to take intermittent
FMLA leave in the new position.
 In September 2005, Traxler received an
unfavorable performance review, to
which Traxler filed a written response.
 Traxler was terminated in late
September 2005.
Traxler vs. Multnomah County,
596 F.3d 1007 (9th Cir. 2010)
(cont’d)
 Traxler sued, alleging she was
terminated due to her legitimate use of
FMLA leave.
 Jury awarded her $250,000 in damages
and $1,551,000 in front pay.
 Issue on appeal was whether front pay
was an issue to be decided by the judge
or the jury.
Traxler vs. Multnomah County,
596 F.3d 1007 (9th Cir. 2010)
(cont’d)
 HELD: Front pay is an equitable remedy
that must be determined by the Court,
both as to the availability of the remedy
and the amount of any award.
Analysis Under the ADAAA
Conclusion
 Given new ADAAA and regulations,
almost all FMLA cases are ADAAA
cases. Employ a dual analysis.
For Further Information or
Questions, Please Contact:
Patricia M. Olsson
Moffatt, Thomas, Barrett, Rock &
Fields, Chartered
101 S. Capitol Blvd., 10th Floor
Post Office Box 829
Boise, Idaho 83701
[email protected]
208.385.5410
1.800.422.2889