Civil Rights Defense Disability Law Discrimination Employment Discrimination Employment Law Recent Case Statutory Interpretation

Severson v. Heartland Woodcraft, Inc.

The Appellate Rule of Lenity

If the People with Disabilities Act1× Pub. L. No. 101-335, 104 Stat. 327 (1990) (codified as amended in scattered sections of 42 and 47 U.S.C.). (ADA) is a “swamp of imprecise language,”2× 135 Cong. Rec. 20,707 (1989) (assertion of Rep. Shumway) (quoting Editorial, The Legal professionals’ Employment Act, Wall St. J., Sept. 11, 1989, at A18). then leave-of-absence disputes are fought in its murkiest waters.Three× See Stacy A. Hickox & Joseph M. Guzman, Depart as an Lodging: When is Sufficient, Sufficient?, 62 Clev. St. L. Rev. 437, 452 (2014) (“Neither the Supreme Court nor the appellate courts have provided a formula for determining what accommodations are reasonable. [This] lead[s] to significantly different outcomes for employees seeking leave as an accommodation.”). The uncertainty facilities on Title I of the ADA, which — al-though it doesn’t point out leaves of absence4× Stephen F. Befort, The Most Troublesome ADA Affordable Lodging Points: Reassignment and Depart of Absence, 37 Wake Forest L. Rev. 439, 459 (2002) (“The ADA does not expressly include a leave of absence among its exemplary list of reasonable accommodations.”). — requires coated employers to offer “reasonable accommodations” to any “qualified individual with a disability,” until doing so would place an “undue hardship” on the employer.5× 42 U.S.C. § 12112(b)(5)(A) (2012). Whereas courts have unanimously acknowledged that some quantity of depart could also be a “reasonable accommodation” underneath this provision of the ADA,6× See, e.g., Echevarría v. AstraZeneca Pharm. LP, 856 F.3d 119, 128 (1st Cir. 2017) (“All agree that a leave of absence . . . can constitute a reasonable accommodation under the ADA ‘in some circumstances.’” (quoting García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 647 (1st Cir. 2000))). they’ve usually hesitated to attract any broadly relevant limits in leave-of-absence litigation,7× See Audrey E. Smith, Remark, The “Presence Is an Essential Function” Fable: The ADA’s Trapdoor for the Chronically Ailing, 19 Seattle U. L. Rev. 163, 184–85 (1995) (“At the very least, there are no clear guidelines for predicting the outcome of litigation on [the issue of leave of absence].”). relying as an alternative on case-specific issues.eight× See, e.g., García-Ayala, 212 F.3d at 647 (noting that “[w]hether [a] leave request is reasonable turns on the facts of the case” (alterations in unique) (quoting Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998))). However see, e.g., Dockery v. N. Shore Med. Ctr., 909 F. Supp. 1550, 1560 (S.D. Fla. 1995) (“[A]s a matter of law, an employer is not required to grant a one-year leave of absence, and such an accommodation is, on its face, unreasonable.”). Just lately, in Severson v. Heartland Woodcraft, Inc.,9× 872 F.3d 476 (seventh Cir. 2017), cert denied, No. 17-1001, 2018 WL 489210 (U.S. Apr. 2, 2018). the Seventh Circuit broke rank with its sister circuits when it held that a depart of absence spanning a number of months is per se unreasonable underneath the ADA.10× Id. at 481. The Severson courtroom’s categorical strategy pushes leave-of-absence jurisprudence in a promising course. Nevertheless it pushes too far. Whereas the courtroom was proper to determine a extra predictable normal for evaluating leave-of-absence claims underneath the ADA, it shouldn’t have foreclosed consideration of the plaintiff’s particular person circumstances. As an alternative, the courtroom ought to have relied on the Supreme Courtroom’s “reasonable accommodation” precedent to stake out a center floor between predictability and particularity.

June 5, 2013, was a troublesome day for Raymond Severson. Earlier than leaving for work that morning, Severson “wrenched his back” and aggravated his persistent again myelopathy — a situation brought on by “degenerative changes in [the] back, neck, and spinal cord.”11× Id. at 479. Then, when Severson arrived for his shift at Heartland Woodcraft, Inc., the corporate’s president knowledgeable him that he was being demoted on account of poor efficiency.12× Severson v. Heartland Woodcraft, Inc., No. 14-C-1141, 2015 WL 7113390, at *1 (E.D. Wis. Nov. 12, 2015). A short while later, Severson went house early due to his extreme again ache.13× Id. That workday would become his final at Heartland.

When Severson’s again ache didn’t enhance, he requested to take a depart of absence beneath the Household and Medical Depart Act of 199314× Pub. L. No. 103-Three, 107 Stat. 6 (codified as amended in scattered sections of 5 and 29 U.S.C.). (FMLA).15× Severson, 2015 WL 7113390, at *1. Heartland didn’t object.16× Id. Close to the top of his twelve weeks of FMLA depart, nevertheless, Severson knowledgeable Heartland that he was scheduled to bear again surgical procedure on August 27, 2013 — the identical day on which his FMLA depart was set to run out — and requested that Heartland present him with two months of further depart following his surgical procedure.17× Id. at *2. Heartland declined Severson’s request and knowledgeable him that his employment would terminate after the ultimate day of his FMLA depart, however invited Severson to reapply for a job as soon as his physician cleared him to return to work.18× Id. Though Severson made a full restoration three months later, he by no means accepted Heartland’s invitation to reapply.19× Severson, 872 F.3d at 480.

As an alternative, Severson filed a lawsuit towards his former employer, alleging that Heartland did not fairly accommodate his again myelopathy in violation of the ADA.20× Id. Severson argued that Heartland might have offered him any of three “reasonable accommodations”: Heartland might have (1) allowed him to take a multimonth depart of absence, (2) briefly assigned him light-duty duties, or (Three) transferred him to a vacant place.21× Severson, 2015 WL 7113390, at *four, *7, *9. The district courtroom rejected every of Severson’s claims and granted Heartland’s movement for abstract judgment.22× Id. at *11. Severson additionally claimed that Heartland violated the ADA’s requirement that employers interact in an “interactive accommodation-exploration process.” Id. Nevertheless, the district courtroom rejected this declare as properly, holding that the ADA’s interactive lodging course of requirement “is not an independent basis for liability.” Id. (quoting Basden v. Prof’l Transp., Inc., 714 F.3d 1034, 1039 (seventh Cir. 2013)). In accordance with the district courtroom, Severson’s extended-leave-of-absence declare failed as a result of it exceeded the “brief periods of leave” that earlier instances acknowledged as “reasonable accommodation[s]” beneath the ADA.23× Id. at *7 (first citing Byrne v. Avon Prods., Inc., 328 F.3d 379, 380–81 (seventh Cir. 2003); after which citing Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 599–601 (seventh Cir. 1998)). The courtroom additionally dominated that as a result of “the ADA does not require an employer to create ‘new’ positions for disabled employees,” Heartland was not required to offer Severson with momentary, light-duty work.24× Id. at *eight (citing Stern v. St. Anthony’s Well being Ctr., 788 F.3d 276, 291 (seventh Cir. 2015)). Lastly, the courtroom rejected Severson’s declare that Heartland ought to have transferred him to a vacant place, ruling that Severson would have been unable to carry out the important features of the out there positions.25× Id. at *9–11.

The Seventh Circuit affirmed.26× Severson, 872 F.3d at 483. Writing for the panel, Decide Sykes27× Decide Sykes was joined by Chief Decide Wooden and Decide Easterbrook. held that Heartland didn’t violate the ADA when it terminated Severson’s employment.28× Severson, 872 F.3d at 479. The courtroom’s opinion targeted totally on a single query: whether or not a multimonth extension of Severson’s depart of absence certified as a “reasonable accommodation” underneath the ADA.29× Id. at 480 (“The parties focus most of their attention on whether a long-term leave of absence is a reasonable accommodation within the meaning of the ADA. We do the same.”). The courtroom gave solely “brief discussion” to Severson’s remaining claims. Id. at 482. The courtroom rejected Severson’s declare that Heartland ought to have briefly assigned him light-duty work, ruling that as a result of Heartland didn’t have a coverage of offering light-duty positions to staff with work-related accidents, it was not obligated to take action for Severson. Id. at 482–83. The courtroom additionally rejected Severson’s declare that Heartland ought to have transferred him to a vacant place, ruling that Severson had not confirmed vacant positions have been out there on the time of his termination. Id. at 482.

In answering that query with a powerful “no,” the Severson courtroom relied on the reasoning of a previous Seventh Circuit choice: Byrne v. Avon Merchandise, Inc.30× 328 F.3d 379 (seventh Cir. 2003). The Byrne courtroom, which thought-about whether or not an prolonged depart of absence of indefinite period was a “reasonable accommodation,” created a distinction between short- and long-term leaves of absence.31× See id. at 381. Whereas the previous is perhaps an inexpensive lodging in some conditions, the Byrne courtroom held, the latter is categorically unreasonable.32× See id. Severson and the Equal Employment Alternative Fee33× The EEOC filed a quick as amicus curiae in help of Severson. See Temporary of the Equal Employment Alternative Fee as Amicus Curiae in Help of Plaintiff-Appellant and Reversal, Severson, 872 F.3d 476 (seventh Cir. 2017) (No. 15-3754) [hereinafter Brief of the EEOC]. (EEOC) had argued that the courtroom ought to disregard Byrne,34× The EEOC proposed that a depart of absence “should qualify as a reasonable accommodation when the leave is: (1) of a definite, time-limited duration; (2) requested in advance; and (3) likely to enable the employee to perform the essential job functions when he returns [to work].” Severson, 872 F.3d at 482. The Severson courtroom dismissed this argument, holding that its adoption would “transform[]” the ADA into “an open-ended extension of the FMLA” — an interpretation the courtroom referred to as “untenable.” Id. citing subsequent selections that appeared to restrict Byrne’s reasoning.35× See Temporary of the EEOC, supra notice 33, at 23 n.four (citing Sluga v. Metamora Tel. Co., No. 13-1553, 2015 WL 1811823, at *four (C.D. Unwell. Apr. 17, 2015) (“[Decisions following Byrne] have walked back any categorical rule — if one existed — and concluded that context matters.”)). Unconvinced, the Severson courtroom doubled down on the Byrne courtroom’s strategy to leave-of-absence disputes.

Stating that “Byrne is sound and we reaffirm it,”36× Severson, 872 F.3d at 479. the Severson courtroom held that though a brief interval of depart — “say, a couple of days or even a couple of weeks”37× Id. at 481. — could be affordable, “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”38× Id. at 479. In reasoning just like Byrne’s, the Severson courtroom held that the ADA’s definition of “qualified individual” ought to inform the courtroom’s “reasonable accommodation” evaluation.39× Id. at 481. Beneath the ADA, a person is “qualified” provided that he is ready to carry out the “essential functions” of the employment place at situation “with or without reasonable accommodation.”40× Id. (emphasis added) (quoting 42 U.S.C. § 12111(eight) (2012)). This definition, the courtroom reasoned, offers “the baseline requirement” for what qualifies as a “reasonable accommodation”: a “reasonable accommodation” should “make it possible for the employee to perform his job.”41× Id. at 481. Since, subsequently, a multimonth depart of absence “does not give a disabled individual the means to work,” however fairly “excuses his not working,” a multimonth depart of absence can’t be an inexpensive lodging.42× Id. As a result of Severson sought a two-month extension of his depart, the courtroom held that his requested lodging was not affordable.43× Id. In January 2018, Severson filed a petition for a writ of certiorari to the Supreme Courtroom. Petition for a Writ of Certiorari, Severson v. Heartland Woodcraft, Inc., No. 17-1001, 2018 WL 489210 (U.S. Apr. 2, 2018). In April 2018, the petition was denied. Id.

Response to the Severson determination has been combined. Some have praised the choice because the “holy grail” of ADA jurisprudence, lauding its imposition of clear boundaries in an space of regulation marked by unpredictability.44× See, e.g., Braden Campbell, seventh Circ. Ruling on ADA Depart Limits Touted as “Holy Grail,” Regulation360 (Sept. 27, 2017, 9:08 PM), https://www.law360.com/articles/968647 [https://perma.cc/5VDS-R8CD]. Others, together with Seventh Circuit Decide Rovner, have denounced the choice as “nonsensical,” arguing that its bright-line rule ignores the ADA’s name for individualized assessments.45× See, e.g., Golden v. Indianapolis Hous. Company, 698 F. App’x 835, 837 (seventh Cir. 2017) (Rovner, J., concurring). The reality is that each side have it proper. And mistaken. The Severson courtroom appropriately recognized the inherent inconsistency between prolonged leaves of absence and the ADA’s “reasonable accommodation” requirement, and it was proper to attract out the implications of that inconsistency extra absolutely than different circuits. However the courtroom went too far. As an alternative of ruling that a multimonth depart of absence is categorically unreasonable, the courtroom ought to have held that a multimonth depart of absence is presumptively unreasonable, permitting the plaintiff the chance to show particular circumstances that justify overcoming the presumption. This strategy wouldn’t solely align leave-of-absence adjudication with Supreme Courtroom pre-cedent; it will additionally strike a fragile stability between the will for predictability and the necessity for individualized evaluation in ADA litigation.

When courts resolve leave-of-absence disputes beneath the ADA, they don’t write on a clean slate. The Supreme Courtroom clarified the ADA’s Title I “reasonable accommodation” requirement in 2002,46× A yr earlier, the Supreme Courtroom thought-about the “reasonable accommodation” requirement of Title III (which governs public lodging offered by personal entities) when it determined PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001). See Stephen F. Befort, Affordable Lodging and Reassignment Beneath the People with Disabilities Act: Solutions, Questions and Steered Options After U.S. Airways, Inc. v. Barnett, 45 Ariz. L. Rev. 931, 933 n.12 (2003). when it determined US Airways, Inc. v. Barnett.47× 535 U.S. 391 (2002). Barnett thought-about whether or not the ADA’s “reasonable accommodation” provision requires an employer to reassign a disabled worker to a special place, despite the fact that one other, nondisabled worker is entitled to that place underneath the employer’s established seniority system.48× Id. at 393–94. In holding that it ordinarily doesn’t,49× Id. at 406. the Courtroom laid down a burden-shifting framework for evaluating “reasonable accommodation” claims.50× Id. at 401–02.

Barnett held that, on the abstract judgment stage, courts ought to first decide whether or not the plaintiff has met his burden of displaying that the lodging sought “seems reasonable on its face.”51× Id. at 401 (emphasis added). This can be a basic inquiry, not a fact-intensive one. It requires courts to look at whether or not the plaintiff is in search of a “method of accommodation” that’s affordable ordinarily or “in the run of cases.”52× Id. at 402 (emphasis in unique) (citing Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993)). If the plaintiff can’t make this generalized displaying, then the lodging he seeks is presumptively unreasonable — a presumption that may be overcome provided that the plaintiff exhibits that there are “special circumstances” that justify treating his case in another way.53× Id. at 405–06. Whereas the Barnett Courtroom mentioned this “special circumstances” inquiry within the context of seniority insurance policies, commentators have acknowledged that the inquiry is relevant to affordable lodging disputes usually. See, e.g., Befort, supra notice 46, at 959. A plaintiff unable to point out common reasonableness, subsequently, should overcome a harder, particularized burden of proof.54× Barnett, 535 U.S. at 405–06. Beneath this burden, the plaintiff should “explain why, in the particular case” the lodging “can constitute a ‘reasonable accommodation’ even though in the ordinary case it cannot.”55× Id. at 406. If the plaintiff doesn’t meet both of those burdens — the overall, “on its face” burden or the particularized, “special circumstances” burden — then the courtroom should grant abstract judgment for the defendant.56× See id. at 401, 406. If — and provided that — the plaintiff meets both burden, then the burden shifts to the defendant,57× Id. at 402; see additionally Befort, supra word 46, at 959 (“If the employee bears the burden of proof on the issue of reasonable accommodation, but does not establish that a desired accommodation is reasonable . . . the employee will not prevail even if the accommodation does not impose an undue hardship.”). who should present “case-specific” circumstances that “demonstrate undue hardship.”58× Barnett, 535 U.S. at 402.

The Barnett Courtroom’s “reasonable accommodation” framework offers a logical (to not point out, precedential) technique for adjudicating leave-of-absence claims; but courts have been reluctant to completely undertake it.59× A part of this reluctance possible stems from the truth that leave-of-absence disputes convey to a convoluted head the “interlocking” nature of the ADA’s “qualified individual” and “reasonable accommodation” provisions. Severson, 872 F.3d at 481. Due to the issues sometimes at concern in leave-of-absence litigation, the “qualified individual” and “reasonable accommodation” analyses often “run together,” EEOC v. Ford Motor Co., 782 F.3d 753, 763 (sixth Cir. 2015) (quoting Samper v. Windfall St. Vincent Med. Ctr., 675 F.3d 1233, 1240 (ninth Cir. 2012)), leading to muddled selections that (regardless of figuring out whether or not a specific depart request qualifies as a “reasonable accommodation”) don’t comply with Barnett’s “reasonable accommodation” framework. Step one in Barnett’s “reasonable accommodation” evaluation — the generalized inquiry — has been largely sidestepped within the leave-of-absence context. Most decrease courts have given solely passing reference as to if a depart of absence is cheap “in the run of cases.”60× See, e.g., Ford Motor Co., 782 F.3d at 761 (noting that, usually, “an employee who does not come to work cannot perform any of his job functions,” however failing to elucidate what meaning for “the run of cases” involving leaves of absence (quoting EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943, 948 (seventh Cir. 2001) (en banc))). However see Echevarría v. AstraZeneca Pharm. LP, 856 F.3d 119, 128 (1st Cir. 2017) (discovering that the plaintiff “has not shown that additional leave . . . is a facially reasonable accommodation . . . ‘in the run of cases.’” (inner citations omitted)). Others have ignored the generalized inquiry completely, focusing solely on whether or not the plaintiff has proven that the lodging is cheap in his specific case.61× See Cleveland v. Fed. Categorical Corp., 83 Fed. App’x 74, 79 (sixth Cir. 2003).

Severson is totally different. Though the Severson courtroom didn’t explicitly purport to use the generalized inquiry from Barnett’s “reasonable accommodation” framework, the courtroom’s reasoning maps neatly onto that inquiry’s central query: How ought to courts sometimes deal with any such declare? The guts of Severson’s reasoning relies upon upon two common issues, which collectively reveal that — “ordinarily” — there’s a logical inconsistency between a multimonth depart of absence and the necessities of an inexpensive lodging: (1) a “reasonable accommodation” is one that permits the worker to carry out the “essential functions” of his employment place;62× Severson, 872 F.3d at 481. and (2) an worker who takes an prolonged depart of absence can’t carry out the important features of his employment place.63× Id. Whereas the Seventh Circuit just isn’t the one courtroom to have recognized this inconsistency,64× See Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (second Cir. 2006) (“[T]he idea of unpaid leave of absence as a reasonable accommodation presents a ‘troublesome problem, partly because of the oxymoronic anomaly it harbors.’” (quoting García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 651 (1st Cir. 2000) (O’Toole, J., dissenting))). it went additional than some other courtroom in drawing out what the inconsistency means for prolonged leave-of-absence requests “in the run of cases.” The Severson courtroom held that, due to this inconsistency, a long-term depart of absence won’t ever be an inexpensive lodging.65× Severson, 872 F.3d at 481.

However that holding goes too far. Barnett’s “reasonable accommodation” framework, correctly understood, encourages courts to attract presumptive strains, not categorical ones. Though the Severson courtroom cogently demonstrated that “ordinarily” a multimonth depart of absence won’t be affordable (Barnett’s generalized inquiry), the courtroom made no try to find out whether or not Severson confirmed that there are details that make his case totally different (Barnett’s particularized inquiry). To completely conform with Barnett, the Severson courtroom ought to have held that a multimonth depart of absence is presumptively unreasonable, however that if the plaintiff can present particular circumstances that justify overcoming the presumption, then the defendant’s movement for abstract judgment will fail, absent a displaying of undue hardship.

This strategy wouldn’t solely align leave-of-absence litigation with Barnett’s “reasonable accommodation” framework; it will additionally strike a fragile stability between predictability and individualized evaluation. Most courts — by ignoring Barnett’s generalized inquiry and specializing in its particularized inquiry — have handed down leave-of-absence selections which might be extremely case-specific, however give litigants inadequate steerage on how future leave-of-absence disputes will probably be determined. Severson turned this on its head. The Severson courtroom — by counting on Barnett’s generalized inquiry and ignoring its particularized inquiry — made future leave-of-absence litigation extremely predictable, however sacrificed any consideration of the plaintiff’s particular person circumstances.

Now, to make certain, a particularized inquiry was unlikely to have made a distinction in Severson’s case.66× See Severson v. Heartland Woodcraft, Inc., No. 14-C-1141, 2015 WL 7113390, at *four (E.D. Wisc. Nov. 12, 2015) (“Severson concedes that, as things looked prior to his surgery, he would not have been able to do much of the lifting associated with [his] position for some time . . . .”). However it isn’t troublesome to think about a state of affairs the place a particularized inquiry would make a distinction. Think about, for instance, a grade faculty instructor with minimal duties over the summer time. Or “a tax preparer who’s just survived April 15.”67× Hwang v. Kan. State Univ., 753 F.3d 1159, 1162 (10th Cir. 2014). Or a “widget maker[]”68× Michael Ashley Stein, The Regulation and Economics of Incapacity Lodging, 53 Duke L.J. 79, 141 (2003). who should produce 500 widgets annually, however finishes them by September. In conditions like these, an prolonged depart of absence might not essentially forestall the worker from performing the “essential functions” of his place. Severson’s categorical holding, nevertheless, forecloses any consideration of the plaintiff’s distinctive state of affairs.

A presumptive strategy — in keeping with Barnett’s “reasonable accommodation” framework — strikes a center floor. Underneath this strategy, leads to leave-of-absence disputes can be neither utterly advert hoc, nor strictly preordained. This strategy would sign to litigants that an prolonged depart of absence is the exception — not the rule — however would nonetheless be sure that the plaintiff’s specific circumstances are considered. It might minimize out the standard nine-to-fiver, however depart room for the worker on a nontraditional schedule. It might, briefly, present predictability and particularity, stability and equity.

The Supreme Courtroom denied Severson’s petition for certiorari in April,69× Severson v. Heartland Woodcraft, Inc., No. 17-1001, 2018 WL 489210 (U.S. Apr. 2, 2018). so anybody hoping for a real “holy grail” determination — one that gives clear steerage for all of the gamers in leave-of-absence litigation — shouldn’t maintain their breath.70× See Dan Brown, The Da Vinci Code 444 (2003) (“I suspect the Holy Grail is simply a grand idea . . . a glorious unattainable treasure . . . .”). However, there’s hope. The Seventh Circuit’s choice in Severson demonstrates (albeit imperfectly) that there’s room for higher predictability in leave-of-absence litigation. When courts are inevitably confronted with leave-of-absence disputes sooner or later, they need to comply with Severson’s lead, however mood its strategy. They need to return to the Supreme Courtroom’s “reasonable accommodation” roots and apply Barnett’s framework to ADA leave-of-absence litigation.