Wake Forest Law Review

By Katy Thompson and Lanie Summerlin

          In Equal Employment Opportunity Commission v. McLeod Health Inc., Cecilia Whitten (“Whitten”) was employed by McLeod Health, Inc. (“McLeod”) for twenty-eight years as the editor of McLeod’s internal employee newsletter[1].  Whitten was born with postaxial hypoplasia of the lower extremity, so she lacks certain bones in her feet, legs, and right hand. Therefore, Whitten has limited mobility and has always struggled with falling.[2]  In 2012, Whitten fell three times: twice outside of work and once at work.  As a result, McLeod required Whitten to undergo several fitness-for-duty exams.[3]  McLeod concluded that Whitten was a high-fall risk.  Whitten proposed several reasonable accommodations, but McLeod determined that these accommodations would prevent Whitten from fulfilling her job’s essential function of travelling to the company’s different campuses to collect stories.[4]  Whitten was placed on medical leave and ultimately terminated.[5]

            Whitten filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), prompting EEOC to bring a suit against McLeod on Whitten’s behalf. The district court granted summary judgment to McLeod on both claims and the EEOC appealed.[6]  The issue before the Court was whether McLeod violated the Americans with Disabilities Act (“ADA”) by (1) requiring Whitten to undergo medical exams despite a lack of evidence that the exams were necessary (“illegal-exams” claim); and/or (2) terminating Whitten on the basis of her disability (“wrongful-discharge” claim).[7]

EEOC’s Arguments

            On appeal, the EEOC argued that summary judgment was not appropriate on either claim because there was sufficient evidence for a reasonable jury to rule in favor of the EEOC.[8]

            Under the ADA, an employer may not require an employee to undergo a medical exam unless the exam is job-related and consistent with business necessity.  Specifically, the employer must reasonably believe the employee’s ability to perform an essential job function is limited by a medical condition or that, due to a medical condition, the employee’s performance of an essential job function would pose a direct threat to the safety of the employee or others.[9]  The EEOC appealed summary judgment on the illegal exams claim by arguing that it had provided enough evidence for a reasonable jury to conclude that travelling to the company’s different campuses was not an essential function of Whitten’s job.[10]  McLeod’s description of Whitten’s position did not include travelling to McLeod’s campuses, and Whitten could gather information for the employee newsletter over the phone.  Also, the EEOC argued that McLeod’s belief that Whitten’s falls made her a direct threat was unreasonable because her falls did not cause injury.[11]

            Furthermore, to establish a wrongful-discharge claim a plaintiff must prove (1) she has a disability; (2) she is a qualified individual; and (3) her employer took adverse employment action against her because of her disability.[12]  The EEOC claimed that the first and third elements were clearly met and that it had presented enough evidence on the second element to preclude summary judgment.[13]  A qualified individual must be able to perform the essential functions of the job with or without a reasonable accommodation.[14]  The EEOC argued that a reasonable jury could determine, based on the evidence presented for the illegal-exams claim, that Whitten was a qualified individual because travelling was not an essential function of her job.[15]

McLeod’s Arguments

            On appeal, McLeod argued that summary judgment on both the illegal-exams claim and the wrongful-discharge claim was appropriate.[16]

            Specifically, in regards to the illegal-exams claim, McLeod argued that it did not violate the ADA by requiring Whitten to undergo work-related medical exams because it reasonably believed, based on objective evidence, that Whitten could not perform an essential function of her job without posing a direct threat to herself.[17]  McLeod claimed, and the district court agreed, that one of the essential functions of Whitten’s job was to navigate to and within the medical campuses.[18]  Thus, McLeod argued, the medical exams did not violate the ADA because McLeod believed Whitten’s disability rendered her unable to travel to and within the company’s different campuses without posing a direct threat to herself.[19]

            With respect to the wrongful-discharge claim, McLeod argued that summary judgment was appropriate because Whitten was not a “qualified individual” within the meaning of the ADA.  Specifically, McLeod asked the Court to affirm on the basis that the EEOC had not proven Whitten was a “qualified individual;” the medical exams indicated she could not perform an essential function of her job, regardless of whether she was provided with a reasonable accommodation.[20]

Holding: Summary Judgment Inappropriate as to Both Claims

            The Fourth Circuit reversed summary judgment on both claims and remanded the case to the lower court.[21]  Reviewing the grant of summary judgment on both claims de novo, the Court disagreed with the district court’s determination that McLeod had showed there was no genuine dispute as to a material fact; therefore, summary judgment was inappropriate.[22]

            The Court examined the evidence presented by both parties but disagreed with the district court’s finding that the EEOC failed to produce enough evidence for a jury to rule in its favor.[23] The Court acknowledged that the record contained evidence supporting McLeod’s position that it reasonably believed, based on objective evidence, that Whitten could not navigate to or within its campuses without posing a direct threat to herself.[24]  Based on the testimony of one of Whitten’s superiors, as well as her own testimony agreeing that her job required her to “safely navigate marketing department functions,” the Court found that a reasonable jury court rule in favor of McLeod.[25]

            However, the Court also found that a reasonable jury, based on the evidence presented in the lower court, could rule in favor of the EEOC.[26]  The Court looked at McLeod’s own written description of Whitten’s job, which contained no mention of navigating to and from company events or conducting in-person interviews.[27]  Although Whitten testified that she believed she collected better content by travelling to McLeod’s campus locations, she did not believe it was an “essential” function of her job because she could collect information and conduct interviews over the phone.[28]  Because the Court determined that the EEOC had produced “more than a scintilla of evidence” in support of its position that navigating to and from McLeod’s campus locations was not an essential function of Whitten’s job, the Court reversed summary judgment as to the illegal-exams claim.[29]

            The Court noted that even if the EEOC had failed to produce enough evidence that navigating to and from campus locations was an essential function of her job, McLeod would still not be entitled to summary judgment.[30]  The Court analyzed what McLeod knew before it required Whitten to take the medical exams; specifically, that (1) McLeod knew Whitten had performed the essential function of her job for twenty-eight years, despite her disability; (2) Whitten had recently fallen several times (once at work), none of which resulted in any severe injuries; (3) Whitten missed deadlines, came in late, and struggled with her workload; and (4) Whitten’s supervisor noted she recently appeared winded and groggy.[31]  The Court determined that a reasonable jury, based on the evidence, could have found that McLeod lacked a reasonable, objective basis for requiring Whitten to undergo work-related medical exams.[32]

            As to the wrongful-discharge claim, the question at issue was whether the EEOC had produced enough evidence to convince a jury that Whitten was a “qualified individual” within the meaning of the ADA.[33]  The Court noted that the district court, in analyzing the “wrongful-discharge” claim, relied on its finding that navigating to and from McLeod’s campus locations was an essential function of Whitten’s job.[34]  Because the medical exams had revealed that no reasonable accommodation would permit Whitten to perform that function, the district court concluded that the EEOC had not proven Whitten was qualified to continue her work with the company’s employee newsletter.[35]  However, because the Court had already determined that it was uncertain whether navigating to and from McLeod’s campus locations was an essential function of Whitten’s job, and because the medical exams may have been unlawful, the Court held that McLeod was not entitled to summary judgment.[36]

Conclusion

            Ultimately, the Fourth Circuit held that McLeod was not entitled to summary judgment on either of the EEOC’s ADA claims and remanded for further proceedings.[37]  The Court held that a reasonable jury could conclude that travelling was not an essential function of Whitten’s job.[38]  If a jury made this determination, then there could be sufficient evidence (1) that McLeod’s required medical exams were illegal; and (2) that Whitten was illegally terminated on the basis of her disability.[39]  This case is important because it provides an example of the level of evidence a plaintiff must offer to survive a summary judgment motion on ADA claims.  Also, this ruling sends a message to employers that the Fourth Circuit takes ADA claims very seriously, and it could encourage the EEOC to bring more ADA claims in this circuit.

[1] No. 17-2335, 2019 WL 385654, at *1 (4th Cir. Jan. 31, 2019).

[2] Id.

[3] Id. at *2.

[4] Id. at *3.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at *4.

[11] Id.

[12] Id. at *5.

[13] Id.

[14] Id.

[15] Id.

[16] Id. at *3.

[17] Id. at *4.

[18] Id.

[19] Id.

[20] Id. at *5.

[21] Id.

[22] Id. at *3.

[23] Id. at *4–5.

[24] Id. at *4.

[25] Id. at *4.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] Id. at *5.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id. at *4.

[39] Id. at *5.

By Sarah Saint

On April 8, 2016, the Fourth Circuit released its published opinion in the civil case of S.B. v. Board of Education of Harford. S.B., a student with disabilities who attend Aberdeen High School in Harford County, Maryland, by and through his mother, A.L., sued the Harford County Board of Education (the “Board”), alleging that the Board violated § 504 of the Rehabilitation Act by allowing other students to bully and harass S.B. because of his disability. S.B.’s stepfather, T.L., who is a teacher and athletic director at Aberdeen High School, sued in his own right, alleging that the Board violated § 504 by retaliating against him for advocating for S.B. The Fourth Circuit affirmed the district court’s grant of summary judgment to the Board, ruling that neither S.B. nor T.L. provided evidence for their claims.

Facts Presented in the Light Most Favorable to S.B. and T.L.

S.B.’s disabilities included Attention Deficit Hyperactivity Disorder, weak visual-spatial ability, and a nonverbal learning disability. During high school, S.B.’s classmates severely bullied him, insulting him with homophobic slurs, sexually harassing him, physically threatening him, and calling him racist names. S.B.’s parents reported these incidents to the school, which investigated each incident. The school regularly disciplined the offenders and assigned a paraeducator to follow S.B. during school to monitor his safety. Nevertheless, this was not to A.L. and T.L.’s liking, and S.B.’s parents eventually began publicly criticizing the school’s efforts to protect S.B in November 2012.

Around the same time, the school denied T.L. the opportunity to complete a practicum for his master’s degree program at Aberdeen High School. Then, in the spring 2013, the school did not give T.L. tickets to a scholarship banquet for student-athletes and informed him that he would not be teaching the summer physical education classes that year, though he had taught it the previous years.

In April 2013, A.L. and T.L. filed the original complaint. In October 2013, T.L. raised concerns at a parents’ forum about the lack of harassment reporting forms available at the high school.

Despite the bullying, S.B. graduated Aberdeen High School on time in June 2014. He consistently achieved passing grades throughout high school and began taking classes at Harford Community College after graduation.

Procedural History

In June 2013, S.B. and his parents amended their complaints to allege violations of § 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; and 42 U.S.C. §§ 1983 and 1985. The claims were premised on the fact that the defendants had discriminated against S.B. on his disability by failing to prevent student-on-student bullying and harassment and had retaliated against S.B.’s parents when they advocated for S.B.

In September 2013, the district court dismissed all the individual defendants and S.B.’s claims under §§ 1983 and 1985. A.L. also voluntarily dismissed her retaliation claim. Before the district court at trial and before the Fourth Circuit on appeal were S.B.’s claim of disability-based discrimination in violation of § 504 and the ADA and T.L.’s claim of retaliation under § 504.

After substantial discovery, in April 2015, the district court granted summary judgment to the Board because there was not evidence to support S.B.’s and T.L.’s claims. For one, there was no evidence in the record that the Board had acted with bad faith, gross misjudgment or deliberate indifference in responding to the harassment. Additionally, there was no evidence of a causal link between T.L. advocating for S.B. and any action taken by the Board.

Standard of Review

The Fourth Circuit reviewed the district court’s decision de novo. Summary judgment is proper when there is no genuine dispute to any material fact and the movant is entitled to a judgment as a matter of law. Fact are viewed and inferences are drawn in the light most favorable to the non-moving party, here S.B. and T.L. If no reasonably jury could find for the non-moving party, the appellate court will affirm a grant for a motion for summary judgment.

Fourth Circuit Adopted Davis Standard of Deliberate Indifference for § 504 Claims

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). S.B. claimed that he was subjected to years of sustained and pervasive student-on-student harassment and bullying based on his disability. By the Board failing to prevent the harassment, S.B. alleged that the Board engaged in disability-based discrimination prohibited by § 504.

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court addressed a similar claim under Title IX, which provides for similar protections as § 504 but for gender instead of disability. The Court held in Davis that a school could only be liable for student-on-student harassment when it was “deliberately indifferent” to known acts of such harassment. A negligent failure to learn of or react to student-on-student harassment does not subject a school to liability–only “deliberate indifference to known acts of harassment.” Id. at 642–43.

The Fourth Circuit, in alignment with most other federal courts who have reached this issue, decided that the same reasoning the Davis Court applied to Title IX also applies to § 504 claims arising from student-on-student harassment or bullying because of the statutory parallels. Schools must be on notice of the student-on-student harassment and act with deliberate indifference in order to be held liable for it.

The Fourth Circuit rejected S.B.’s argument that the Fourth Circuit had already adopted a different standard for § 504 liability in 1998: that a school can be liable if the school acted with bad faith or gross misjudgment. The 1998 case that S.B. cited in support of this theory–Sellers v. School Board of City of Manassas, 141 F.3d 524 (4th Cir. 1998)–did not involve school liability for student-on-student misconduct but a school’s own direct conduct. When a school allegedly violates § 504 through it’s own conduct, such as failing to provide a free appropriate public education, the bad faith or gross misjudgment standard applies. However, Sellers said nothing about school liability for student-on-student harassment. Accordingly, the Fourth Circuit found that it is guided by Davis and not Sellers.

S.B.’s Claim of Disability Discrimination in Violation of § 504

To succeed on a § 504 student-on-student harassment claim, a plaintiff must show that he was an individual with a disability; that he was harassed by other students because of his disability; that the disability-based harassment was sufficiently severe, pervasive, and objective offensive that it effectively deprived him of access to educational benefits and opportunities at school; and that the school knew about the disability-based student-on-student harassment and was deliberately indifferent to it.

The Fourth Circuit agreed with the district court that S.B. could not establish that the student-on-student harassment was based on his disability. It was more likely that S.B. was bullied because of his race, which is not actionable conduct under § 504. Further, the Fourth Circuit agreed with the district court that S.B. and his parents never informed the Board that he was being bullied because of his disability, only that he was being bullied. S.B. alleged that the school should have known that the harassment was based on his disability, but the Supreme Court expressly rejected such a standard in Davis.

Finally, the Fourth Circuit agreed with the district court that the Board was not deliberately indifferent under Davis, which is a high standard that requires an official decision by the school no to remedy the student-on-student harassment. The response to the harassment must be clearly unreasonable in light of the known circumstances. Because the school investigated every single incident of harassment of which it was informed, disciplined the offenders, and assigned a paraeducator to accompany S.B., the school acted reasonably. School administrators are entitled to substantial deference when they execute a disciplinary response to student-on-student bullying or harassment, so requests from parents for stronger discipline is not enough to make the school’s chosen actions clearly unreasonable. The Fourth Circuit decided that no reasonable juror could find that the school was less than fully responsive to S.B.’s situation.

T.L.’s Claim of Retaliation in Violation of § 504

Because there was no direct evidence of retaliation, T.L. had to use the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), burden-shifting framework to make a prima facie case of retaliation by showing (1) that he engaged in protected activity, (2) that the Board took an adverse action against him, and (3) that the adverse action was causally connected to his protected activity. The Board did not dispute that T.L. engaged in a protected activity, advocating for S.B., a student with disabilities. The Fourth Circuit found that the Board’s decision not to rehire T.L. to teach the summer physical education class was a materially adverse action. Nevertheless, the Fourth Circuit agreed with the district court that no reasonable jury could find the necessary causal connection between the Board’s adverse action and T.L.’s protected activity. The Board proffered the legitimate, non-retaliatory reason for its decision that they needed one male and one female physical education teacher for the summer, and that another male had more experience than T.L. T.L. attempted to rely on the temporal proximity between the reassignment and the protected activity to show the causal connection, but timing alone cannot defeat summary judgment once an employer offered a legitimate, non-retaliatory reason.

Conclusion

Because the Fourth Circuit agreed with the district court that no reasonable juror could find that the school was deliberately indifferent to the student-on-student harassment of S.B. and no reasonable juror could find that there was a causal connection between T.L.’s protected activity and the adverse action against him, the Fourth Circuit affirmed the judgment of the district court granting the Board’s motion for summary judgment.

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By Elissa Hachmeister

In Tanner v. Commissioner of Social Security, an unpublished opinion issued on February 12, 2015, the Fourth Circuit affirmed the District Court for the District of South Carolina’s judgment upholding the Social Security Administration’s decision to deny Madeline Brown Tanner’s claim for disability insurance benefits. Although the district court erroneously failed to consider some of Tanner’s arguments after incorrectly applying the “mandate rule,” the Fourth Circuit nonetheless affirmed because its independent assessment of all Tanner’s challenges showed that the agency’s decision was supported by substantial evidence. Thus, even if the district court had considered all her arguments, reversal still would not have been warranted.

Tanner’s Twice Denied Claim and District Court Review

Tanner applied for disability insurance benefits, but her claim was denied after a hearing before an administrative law judge (ALJ). Tanner sought review of the decision, filing suit in the United States District Court for the District of South Carolina challenging the ALJ’s determinations regarding three main issues: (1) opinion evidence; (2) Tanner’s credibility; and (3) the effects of her impairments in combination. A magistrate judge recommended remand for additional consideration of opinion evidence, but rejected Tanner’s other arguments. Accepting the recommendation, the district court vacated the agency’s decision denying Tanner disability benefits.

On remand, Tanner had a second hearing before a different ALJ, but her claim was again denied. She filed suit to appeal the decision, raising substantially the same challenges as before. The magistrate judge recommended the district court uphold the second decision. In reviewing the second agency decision, the magistrate judge did not consider Tanner’s challenges to the ALJ’s determinations on the issues of credibility and the effects of her impairments in combination. The judge reasoned that these arguments had already been rejected; those earlier determinations were “the law of the case” and thus the “mandate rule” prohibited further review. The district court accepted the magistrate judge’s recommendation, adopting the judge’s assessment in its decision upholding the second denial of benefits.

Improper Application of the “Mandate Rule”

The district court, through the magistrate judge, was confused in its application of the “mandate rule,” which prohibits lower courts from considering questions that have been resolved by a higher court. The Fourth Circuit presumed, without deciding, that the mandate rule applies to agencies; thus the Social Security Administration (SSA) must respect the mandate or decision of the district court or an appellate court on remand. Nonetheless, the mandate rule did not require the ALJ to reconsider only certain opinion evidence on remand under the circumstances in this case. New evidence was presented at the second hearing, obliging the ALJ to reassess Tanner’s disability claim de novo per agency regulations. ALJ findings based on new evidence do not violate any earlier mandate set by a district court or an appellate court.

Reviewing an SSA Disability Determination 

An SSA disability determination will be upheld if the ALJ has applied correct legal standards and the ALJ’s factual findings are supported by substantial evidence. Bird v. Comm’r of Soc. Sec. Admin., 699 F.3d 337, 340 (4th Cir. 2012). The same standard of review applies whether the reviewing court is a district court or an appellate court. Because the district court did not fully consider Tanner’s challenges to the second agency decision, the Fourth Circuit undertook its own independent assessment of all of Tanner’s arguments. The Fourth Circuit found that the ALJ determinations challenged by Tanner were supported by substantial evidence. The district court’s mistaken invocation of the mandate rule was therefore harmless error since reversal would not have been appropriate even if all of Tanner’s arguments had been considered.

Court of Appeals for the Fourth Circuit Affirmed

By Dan Menken

Last Tuesday, in Reid v. Commissioner of Social Security, the Fourth Circuit evaluated the Social Security disability benefit claims of Brian Edward Reid under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Reid filed for disability benefits on December 7, 2006, alleging that he became unable to work on June 4, 2004, when he fell of a roof during work and suffered two spinal fractures. This original claim was denied.

A hearing was then conducted before an administrative law judge (“ALJ”), who ruled that because Reid could engage in sedentary work, he was not disabled. On review of the decision, the Appeals Council remanded the case, ordering the ALJ to consider the evidence from June 4, 2004, forward, which the ALJ had not done because he thought that res judicata applied to the 2004-2006 period. The Appeals Council also instructed the ALJ to consider the effect of Reid’s mental impairments and obesity on his disability claims. After a second hearing on January 18, 2011, Reid was denied benefits for a second time. Reid again appealed to the Appeals Council, which largely adopted the ALJ’s findings.

On this appeal to the Circuit Court, Reid contended that (1) the Commissioner ignored several years of his medical history and (2) the Commissioner failed to consider the combined effects of his multiple impairments. In reviewing the district court’s judgment de novo, the Court of Appeals reviewed the Commissioner’s decision for substantial evidence.

In considering Reid’s first claim, the Court ruled that the Commissioner’s decision satisfied the statutory requirements because the Commissioner had stated that the whole record had been considered. Without evidence to the contrary, the Court decided to take the Commissioner at her word. In support of this ruling, the Court remarked that Reid had failed to point to any specific piece of evidence that, if considered, might have changed the outcome of his disability claim.

In regards to the second claim, the Court ruled that the ALJ had specifically contemplated the combinatorial effects of Reid’s various impairments as required by statute and complied with guidance set out in Walker, which states that the ALJ must “adequately explain his or her evaluation of the combined effects of [a claimant’s] impairments.” Even after considering the combined effects of the claimant’s impairments, the ALJ ruled that the combined impairments did not “equal in severity” to an impairment listed under Title II of the Social Security Act.