On The Docket

Read about recent Supreme Court decisions in:

• US Airways, Inc. v. Barnett where the Supreme Court (5-4) held that the Americans with Disabilities Act (ADA) generally does not require an employe to reassign an employee with a disability to a vacant position in violation of the company's seniority policy.
  
  
• Toyota v Williams where the Supreme Court discussed when an impairment substantially limits a major life activity, and is therefore a disability under the Americans with Disabilities Act.
  
  
• EEOC v Wafflehouse where the Supreme Court made clear that the Equal Employment Opportunity Commission can sue an employer for disability discrimination even when the employee has agreed to submit all legal claims to binding arbitration.

The following are a list of legal cases affecting people with epilepsy around the country:

Nelson v. Ameritech, 22 NDLR ? 196 (N.D. Ill. 2002)(epilepsy). A telephone operator with uncontrolled seizures sued her former employer for discrimination under the ADA and the Age Discrimination in Employment Act after the company allegedly forced her into early retirement. The woman stopped taking her medication about one month before her retirement. When she does not take her medications, she has about five or six seizures per year. The court granted summary judgment to the employer, holding in part that the employee was not disabled under the ADA because (1) by her own testimony, her seizure disorder did not affect her ability to work, (2) while she was medically restricted from driving, swimming and using heavy machinery, none of these activities, by themselves or together, constituted a major life activity, and (3) her condition does not affect her ability to care for herself or her family on a daily basis. In making its decision, the court noted that the employee's personal physician testified that her seizures would be reasonably controlled if she took the prescribed medication.

Otting v. J.C. Penney Co., 223 F.3d 704 (8th Cir. 2000) (epilepsy). A saleswoman, whose seizures were partially controlled by medication and brain surgery, sued her former employer for discrimination under the ADA after it terminated her because she was medically restricted from climbing ladders. The court held that: (1) she was disabled under the ADA because she was completely unable to walk, talk or see during a seizure, which could last anywhere from 30 seconds to two minutes; and (2) a reasonable jury could conclude that the employer acted with malice or reckless indifference to the employee's federally protected rights, and thus remanded the case to a jury for determination of whether to award the employee punitive damages.

E.E.O.C. v. Sara Lee Corp., 237 F.3d 349 (4th Cir. 2001) (epilepsy). A production line worker with uncontrolled nocturnal and daytime seizures sued her former employer for discrimination under the ADA after it refused to grant her reasonable accommodation request. She had requested that the company allow her to work a fixed schedule of daytime shifts only. The company offered a fixed schedule but refused to allow her to work day shifts, instead assigning these shifts to another worker with 20 years seniority as allegedly required by its seniority policy. The court found for the employer, concluding that the woman was not disabled under the ADA since there was, in its opinion, insufficient evidence that her seizures made it more difficult for her, compared to the average person, to sleep, think or care for herself ; in addition to general forgetfulness, the woman's nocturnal seizures caused her to shake uncontrollably during a seizure and left her so exhausted in the morning it was as though she had not slept. The court also concluded that even if she was disabled, the assignment was not a reasonable accommodation since it would violate a long established company seniority policy that had been uniformly applied for more than 15 years. The court did, however, recognize that epilepsy can be a disability under the ADA.

Chenoweth v. Hillsborough County, 250 F.3d 1328, 11 A.D. Cases 1421, (11th Cir. 2001), (view decision) affirming on different grounds, Case No. 97-2335-CIV-T-24A (M.D.Fla. 1999) (unpublished decision) (epilepsy). A registered nurse who worked as a claims adjuster for the county health department, sued her employer for discrimination under the ADA after it denied her reasonable accommodation request to work from home and have a variable work schedule. Though taking medication, her seizures were uncontrolled and as a result, she was unable to drive and had to rely on friends and families for rides. The district court granted summary judgment to the employer, concluding that the nurse was not disabled under the ADA when her seizures were controlled and that even if she was, the accommodations requested were not reasonable. The 11th Circuit affirmed the lower court's decision, holding that she was not disabled under the ADA because (1) driving is not a major life activity, (2) she is not substantially limited in her ability to work a broad class of jobs, and (3) while she may be substantially limited in her ability to reproduce, such a limitation does not affect her ability to work and thus the "required" nexus between the substantial limitation and work was not present. The Foundation filed an amicus brief in this case; to view it, visit our brief bank.

Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000) (seizure disorder, diabetes and heart condition). A typesetter sued her former employer for discrimination under the ADA, the Rehabilitation Act and the Family Medical Leave Act after it allegedly disclosed her medical condition to her coworkers and refused to promote her. The court found for the employer, finding that the ADA and Rehabilitation Act do not require an employer to keep information about an individual's medical condition confidential when that information is voluntarily disclosed by the employee. The court also found for the employer on the failure to promote claim, concluding that the woman was not disabled under the ADA or the Rehabilitation Act since she did identify any particular major life activity that was substantially limited by her medical condition currently or in the past, and also failed to provide evidence that her employer regarded her as being unable to perform a broad class of jobs; she alleged that her employer's refusal to let her drive company cars showed it regarded her as unable to perform the broad class of jobs requiring use of a company car.

Moreno v. American Ingredients Co., 18 NDLR § 78 (D. Kan. 2000) (epilepsy). An employee sued his former employer for discrimination under the ADA and state law, as well as for violating the Family Medical Leave Act (FMLA) after he was terminated for excessive absenteeism. The employee, who suffered one seizure every 1 ¾ to two months, claimed that the termination was a pretext for discrimination on the basis of disability since his absences were related to his epilepsy and back problems. The court found for the employer on the ADA claim, holding that the employee was not disabled under the ADA since (1) his epilepsy did not substantially limit his ability to work a broad class of jobs, even if as the employee claimed, he was unable to work during a seizure or immediately thereafter, and (2) driving was not a major life activity for purposes of the ADA and thus, it was not significant that he was unable to drive. The court allowed the employee to go to trial on the FMLA claim, explaining that the employee did not need to specifically request leave under FMLA but that his request for time off was sufficient.

Swartz v. McDonald's Corp., 87 F.Supp.2d 863 (N.D. Ind. 2000) (epilepsy). A restaurant worker, whose title was "support position/back room/lobby and restroom crew person," sued her employer for discrimination under the ADA after it terminated her because she was allegedly unable to perform all of her job functions. The court held that the employee was not a qualified individual with a disability because, as a result of her frequent, on the job grand mal seizures, she could not perform several essential functions of her job including monitoring the stockroom, providing production support or assisting in stocking supplies.

Arnold v. City of Appleton, Wis., 2000 WL 620198 (E.D.Wis. 2000). (epilepsy) An applicant for a city firefighter position sued for discrimination under the ADA after his conditional offer of employment was revoked because he has epilepsy. The court held that the man, who was seizure free for 4 years while on medication, is not disabled under the ADA because he was not substantially limited in any major life activity, and he did not show that the city regarded him as disabled or that it relied on a record of such a disability.

Rowles v. Automated Production Systems, Inc., et al., F.Supp.2d, 2000 WL 382054 (M.D. Pa. 2000) (Civ. No. 1:CV-98-0707). The court held that whether an engineer, who takes medication to control his epilepsy, is disabled under the ADA is a question of fact for a jury to decide. The court also held that it is up to a jury to decide whether a workplace drug testing policy violates the ADA. The engineer claimed that the policy was discriminatory because it requires employees to be terminated if they take legally prescribed drugs, including Phenobarbital. He took Phenobarbital to control his epilepsy. He was terminated after he refused to take the drug test.

Popko v. Pennsylvania State University, 84 F. Supp.2d 589 (M.D. Pa. February 22, 2000). A medical technologist with idiopathic epilepsy (sleep-related seizure disorder) claimed that her supervisors gave her negative evaluations because of disability-related behavior. The court held that she was not disabled under the ADA because her seizures are curtailed if she gets seven to eight hours of sleep.

Franklin v. Consolidated Edison Company of New York, 16 NDLR § 181 (S.D.N.Y. 1999). An attorney whose epilepsy is controlled by medication is disabled under the ADA. The attorney suffered from insomnia and morning drowsiness as a result of her anti-epileptic medication. This was sufficient to show that she is substantially limited in the major life activity of work since she is unable to hold any job which requires early morning appointments or a fixed arrival time.

Todd v. Academy Corp., 16 NDLR § 74 (S.D.Tex. 1999) (No. Civ. A. 98-1620). A warehouse worker with epilepsy claimed that he was terminated because of his seizure disorder. The court held that he was not disabled under the ADA even though he had active seizures while on medication.

Treglia v. Town of Manlius, NY, 68 F.Supp. 2d 153 (S.D.N.Y. 1999). A police officer claimed his employer failed to promote him and improperly reassigned his duties after he disclosed his epilepsy. The court held that the police officer failed to show that his employer regarded him as disabled and therefore, he was not disabled under the ADA.

Spradley v. Custom Campers, Inc., 16 NDLR § 191 (D.Kan. 1999) (No. Civ.A. 98-2577-KHV). A maintenance worker, whose epilepsy is not controlled, was terminated because his employer believed the risk of seizures caused too great a safety risk. The court held he is not disabled under the ADA because if he took medication his seizures would be better controlled.

Blevins v. Apfel, 67 Soc.Sec.Rep.Ser. 194 (S.D. Ala. 2000). The court affirmed the Social Security Administration's (SSA) denial of SSI benefits to an 11-year-old child with epilepsy and borderline intellectual function. SSA denied benefits because it determined that she was not disabled since there was no evidence that the cognitive impairment affected her ability to learn, and the child had not had a seizure in more than a year.

Gragg v. NYS Dept. of Environmental Conservation, 2000 WL 246272 (N.D.N.Y. 2000) (epilepsy and diabetes). A forklift driver sued his employer for discrimination under the ADA after it permanently reassigned him to non-driving duties following seizures on the job. The driver alleged that his employer discriminated against him first by reassigning him and then by refusing to reinstate his old duties once his seizures were under control. The court dismissed the first claim, concluding that at the time of the reassignment, he was not a qualified individual since by his own admission his active seizures posed a direct threat and another accommodation was not available. The court allowed the driver to proceed to trial on his second claim, concluding that once his seizures were under control, he was a qualified individual with a disability.

Scarborough v. Trans World Airlines, 77 Empl. Prac. Dec. P 46, 276, 5 Wage & Hour Case. 2d (BNA) 1625 (E.D.Mo. 2000). A woman with epilepsy sued her employer for discrimination and retaliation under the ADA after being terminated because of seizure related absences. In her complaint with the EEOC, she only alleged discrimination, and not retaliation. The court held that she could not proceed on the retaliation claim in court because she had failed to exhaust her administrative remedies.

Kilcullen v. NYS Department of Labor, 205 F.3d 77 (2nd Cir. 2000). A man with epilepsy sued the state Department of Labor alleging discrimination under the ADA and Section 504 because the state job application process required that he disclose any "handicap or medical problems". The lower court dismissed both claims on the grounds that the 11th Amendment bars claims against the state. The Court of Appeals reversed, holding that the state is not immune from suits and remanded the case for a trial on the merits.

Popoca v. Apfel, 67 Soc.Sec.Rep.Serv. 613 (N.D.Ill. 2000)(epilepsy). A woman with epilepsy and bronchial asthma appealed after her request for disability insurance benefits and SSI was denied because the Social Security Administration deemed her able to return to work and therefore, not "disabled". The appeals court concluded that, in making this decision, the administrative law judge failed to consider the specific duties of her previous job and the impact of her seizures on her ability to perform those duties. The case was remanded for a new hearing.

Warner-Lambert Co. v. Shalala, 202 F.3d 326 (D.C. Cir. 2000). The FDA approved a new generic anti-seizure medication on the premise that it was therapeutically equivalent to the drug Dilantin. The manufacturer of Dilantin, Warner-Lambert appealed this decision to the federal circuit court, claiming that the decision was arbitrary and capricious. The Court of Appeals upheld the FDA's decision.

Disclaimer

The case summaries provided on "On the Docket" are provided for informational purposes only and do not constitute legal analysis or advice. Only selected cases from across the country have been included and not all applicable case law on any one issue is included in "On the Docket." If you need legal advice or representation, you should contact a local attorney who can better advise you of your rights in your particular situation.