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Workers needn’t show adverse job action in disability ruling


An en banc federal appeals court reversed its own panel’s ruling Wednesday and held a plaintiff in a failure-to-accommodate disability case does not have to prove an adverse employment action to successfully pursue her litigation.

Laurie Exby-Stolley had resigned from her position as an inspector for the Weld County Department of Public Health and Environment in Greely, Colorado, after she lost the full use of her dominant right arm in a workplace accident, becoming permanently disabled, and the county allegedly failed to accommodate her disability, according to court papers in Laurie Exby-Stolley v. Board of County Commissioners, Weld County, Colorado.

Ms. Exby-Stolley filed suit against the county in U.S. District Court in Denver charging it with violating Title I of the Americans with Disabilities Act in failing to accommodate her disability.

At her trial, the judge instructed the jury that it could not find in Ms. Exby-Stolley’s case unless it concluded she was discharged from her job, or suffered another adverse employment action because of her disability.

The jury ruled in the county’s favor, finding that while she was disabled, Ms. Exby-Stolley could not prevail in the case because she had not proven she had suffered an adverse action by the county.

A divided three-judge appeals court panel affirmed the lower court decision, but was overturned in the en banc court’s 7-6 ruling.

The en banc court’s majority 80-page ruling said an adverse employment action is not necessary to successfully charge the employer with violating the ADA for not reasonably accommodating Ms. Exby-Stolley’s disability.

The district court’s “incorporation of an adverse-employment action requirement into an ADA failure to accommodate claim was contrary to (1) our controlling precedent; (2) the inherent nature of a failure to-accommodate claim as contrasted with a disparate-treatment claim; (3) the general remedial purpose of the ADA; (4) the (U.S. Equal Employment Opportunity Commission’s) understanding of the elements of an ADA failure-to accommodate claim; and (5) the regularly followed practices of all of our sister circuits,” the majority opinion said.

“Under the circumstances here, the district court’s instructional error constrains us to reverse its judgment,” the ruling said. There is “much more than ‘a slight possibility’ here that the jury based its verdict on the faulty instruction regarding an adverse employment action,” it said, in remanding the case for further proceedings.

The U.S. Department of Justice and the EEOC, among others, submitted an amicus brief in the case urging the court to rule in the plaintiff’s favor.

The dissenting opinion said the jury instructions in the case are consistent “with the plain meaning” of the ADA’s language.

Ms. Exby-Stolley’s attorney, Jason B. Wesoky, a shareholder with Darling Milligan PC in Denver, said in a statement, “The main issue decided today is quite simple despite the lengthy opinion. The ADA says in very simple and plain language that an employer “discriminates” against a disabled employee when the employer ‘fails to accommodate’ the employee.

“Despite the simplicity of the statute, the dissent twists itself in knots to manufacture a tortured reading of the statute to shoe-horn in an adverse employment action into a failure to accommodate claim.”

The county’s attorneys did not respond to a request for comment.

Earlier this month, a federal appeals court reinstated ADA and Family Medical Leave Act charges filed by a former injured Walmart Inc. worker who was fired after she refused an allegedly unfeasible alternative position.









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