Cases Around the Country
Cases Around the Country
Equal Employment Opportunity Commission v. Overnite Transportation Company, Case No. C2-02-591 (S.D. Ohio filed 2002) (case is currently pending)
The Commission has alleged in its complaint and motion for summary judgment against Overnite that the company follows a blanket policy that excludes persons with epilepsy and/or diabetes without individually assessing an individual’s ability to perform the essential functions of the job with or without reasonable accommodation. The Commission filed its suit on behalf of two individuals with epilepsy who sought positions with Overnite as dockworkers.
Overnite argued in its brief opposing summary judgment that their policy did provide for individual assessments and does not provide for the blanket exclusion of people with epilepsy and/or diabetes. Overnite also argued that the individual claimants were not disabled under the Americans with Disabilities Act (ADA) and that the company did not regard them as disabled.
The case is currently in the summary judgment stage. In 2004, the EEOC reached a favorable settlement with Northwest Airlines in a case challenging a similar exclusion policy (see Northwest Airlines summary provided below).
Taylor v. USF-Red Star Express, Inc., 2005 U.S. Dist. Lexis 3600 (E.D. Penn. March 8, 2005) – Employee regarded as having epilepsy and unqualified to perform his job receives large monetary jury award
On March 8, 2005, a federal judge for the Eastern District of Pennsylvania refused to overturn a jury verdict awarding $159,000 to a dock worker whom a jury had found was improperly placed on leave in violation of the Americans with Disabilities Act, based on the employer's erroneous belief that the employee had epilepsy (which the employer believed presented an unacceptable safety risk in the position). In Taylor v. USF-Red Star Express Inc. (view decision on the merits of plaintiff's claim), plaintiff had two seizure-like incidents, and the employer placed him on extended leave, until he was able to produce a doctor's note clearing him to work. Judge Newcomer found that Taylor's seizures were brought on by his taking creatine, a nutritional supplement designed to enhance muscle growth, and that he did not have epilepsy. A jury awarded Taylor back pay, lost pension benefits and compensatory damages. Judge Newcomer upheld the awards to Taylor and also awarded attorney's fees to the plaintiff's attorneys (view decision on attorney's fees). The court found that there were ample grounds for the jury's conclusions and denied the employer's motion for a new trial.
Taylor had experienced two nocturnal seizures in March 2001 after working for Red Star for 12 years. Taylor's lawsuit alleged that Red Star sent him home without acknowledging the medical evidence that showed that Taylor's seizures were isolated occurrences that resulted from his consumption of Creatine. (View plaintiff's brief here). Judge Newcomer found that Red Star mistakenly perceived Taylor as having epilepsy and being prone to seizures and to sudden loss of consciousness. The court found that if the jury believed these statements, they could easily have believed that defendant regarded plaintiff as being "substantially limited" in one or more major life activities (a requirement for protection under the ADA). The court also found that there was conflicting evidence on the question whether all persons in the plaintiff's position needed to drive a forklift and whether Taylor was in fact capable of driving that vehicle, but that the jury's determination in favor of the plaintiff must be given deference, as there was ample evidence on which the jury could have based its finding that Taylor was qualified to perform the job.
Jibben v. United Parcel Service (Nocturnal Seizures may Amount to Covered Disability), CV No. S-02-0039-DAE (D. Nev. April 14, 2004). In Jibben, the court denied UPS's motion for summary judgment (view Jibben decision), finding that there are material issues of fact which must be resolved at trial as to whether plaintiff's epilepsy amounts to a covered disability under the ADA. Similarly, the court found whether the plaintiff's condition prevented him from performing an essential function of the job (working 9.5 hours a day as a supervisor) also must be resolved at trial. The Foundation filed an amicus brief in this case, which you can view in our brief bank.
In reaching its decision on the coverage issue, the court found that Mr. Jibben experiences nocturnal seizures once or twice a month, which are not totally controlled by medication. The seizures last approximately 30 seconds to two minutes, during which Mr. Jibben is unable to walk, speak, hear or work. Following his seizures, he experiences tiredness, shakiness and difficulty concentrating. Based on these findings, the court ruled that there was a genuine issue of material fact as to whether Mr. Jibben's epilepsy substantially limits a major life activity. Regarding Mr. Jibben's ability to perform the essential functions of the job of supervisor for UPS, there was conflicting evidence as to whether the position of supervisor actually required Mr. Jibben to work at least 9.5 hours a day and work a varied and flexible schedule (working beyond 45 hours arguably would be harmful to Mr. Jibben's condition).
EEOC v. Northwest Airlines (Settlement regarding Airline’s Blanket Disqualification Policy for Applicants with Epilepsy), No. 1-705 MJD/JGL (D. Minn. Dec. 30, 2004). In this case, the U.S. Equal Employment Opportunity Commission and Northwest Airlines, Inc., reached a settlement of a lawsuit under the Americans with Disabilities Act which will ensure that persons with epilepsy (and insulin-dependent diabetes) who apply for various positions with the airline will not be unfairly denied those positions. The Epilepsy Foundation assisted EEOC in achieving a favorable outcome in this case by providing a variety of resources, including publications and referrals to experts supporting the ability of workers with epilepsy to safely perform these positions.
Northwest had allegedly relied on a company-wide policy of automatically disqualifying applicants for positions of cleaners or equipment service employees if they had seizure-related disorders or other disabilities that pose a risk of loss of consciousness, no matter how remote the risk was. A key element of the agreement is that Northwest will conduct an individualized assessment of the current ability of persons to safely perform these positions, with or without reasonable accommodation. The agreement also provides that Northwest will only disqualify applicants from employment if the applicant cannot perform the essential function of the job with or without reasonable accommodation or if the applicant poses a direct threat to the health and safety of themselves or others. If Northwest believes an applicant should be disqualified, Northwest shall advise the applicant of the essential job functions that the airline believes the applicant cannot perform and offer the applicant 15 days to provide additional information on the applicant’s ability to perform those functions. Northwest will also provide a settlement fund of $510,000 for distribution among 28 individuals for whom the EEOC was seeking relief.
The EEOC's brief argued that Northwest needed to abandon its zero tolerance policy -- that apparently discriminated against persons with epilepsy and diabetes -- in favor of a policy of individualized assessment of an applicant’s ability to perform the essential functions, with or without reasonable accommodations, of the position sought.
Aetna Health. v. Davila/Cigna Healthcare v. Calad, 124 S. Ct. 2488 (2004).
Summary of Amicus Position:
Amicus Curiae brief filed by health care advocacy group Families, USA, and other organizations, including the Epilepsy Foundation, arguing that patients should be allowed to sue their managed care providers for failing to exercise ordinary care when making medical judgments. The brief argued that the Employee Retirement Income Security Act did not pre-empt the state statute because the plaintiffs did not have a cause of action under the act. The plaintiffs' cause of action arose under a Texas statute that gives individuals the right to sue HMOs for wrongful denial of care.
Summary of Decision:
In Davila, the patient suffered bleeding ulcers and a heart ailment, which Davila claimed, resulted from Aetna's insistence that he use a different long-term medication than his doctor prescribed. In Calad, Cigna would not authorize additional days of hospital care after the plaintiff's surgery and Calad claimed this failure resulted in complications that required her to return to the hospital. Both plaintiffs sued under the Texas Health Care Liability Act, which allows patients to sue HMOs that wrongfully deny them care and recover damages for harm suffered.
The Supreme Court held that claims under a Texas statute that allowed patients to sue managed care providers for damages that resulted from decisions not to provide coverage were pre-empted by the Employee Retirement Income Security Act and could not be heard in state court. Justice Thomas wrote the majority opinion, holding that Congress intended for ERISA to govern all claims arising out of any employee benefit plan covered by the act, regardless of whether the claims are asserted under tort or contract law. In her concurrence, Justice Ginsburg acknowledged that the current legislative scheme of the act does not allow patients to sue their insurers for harmful consequences of medical decisions made by the insurers. Justice Ginsburg called on Congress to re-examine the ERISA legislation and make a renewed effort towards passing an effective Patients' Bill of Rights.
The decision prevents states from enacting legislation that would allow patients to sue their insurers directly for the harmful results of medical coverage decisions. Under the ERISA, the only recourse patients have when denied coverage by their insurance companies is to seek an injunction, which can be costly and time consuming, or pay for the treatment and fight for reimbursement later. The state laws, such as the Texas statute struck down by the Supreme Court, encouraged accountability among insurance companies and provided patients with an opportunity to be compensated by their insurance companies for wrongful decisions regarding care. Without such statutes to protect them, people with epilepsy will bear the costs of any harmful consequences stemming from an insurance company's coverage decision.
Nelson v. Ameritech, 22 NDLR P 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), 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.
These summaries are provided for informational purposes only and are not intended as legal advice or interpretation. Also, while every effort has been made to include all applicable cases, there may be other cases involving people with epilepsy or that apply in a particular case. A local attorney will be able to identify these cases for you, and advise you on how to proceed in your case. For more information, please visit the Jeanne A. Carpenter Epilepsy Legal Defense Fund consumer center at www.epilepsylegal.org.
Read about several important cases in the United States Supreme Court.