Sotomayor’s Second Circuit Decisions on the Americans with Disabilities Act

Two opinions authored by Judge Sonia Sotomayor are concerned with the Americans with Disabilities Act (ADA). You will recall that she decided two ADA cases as a district court judge. Since the ADA Amendments Act (ADAAA) is likely to spawn new disabiity discrimination litigation that will be subject to rules different than those previously considered by the current Supreme Court, looking at Sotomayor’s past approach to the ADA may be useful in trying to predict how she’ll consider new ADA cases.

Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999)
A black 56-year-old female hospital nurse suffered a spinal injury while at work and began an extended leave of absence. Because her previous job was no longer available toward the end of her leave and because she was still subject to restrictions as a result of her spinal injury, the nurse began working with personnel administrators to find a different job in the hospital.

She was informed of a job vacancy at another hospital site but chose not to apply because she would have lost her seniority. Part-time jobs were proposed, but the nurse was interested in returning to full-time work. She finally applied for a nursing position to her liking, but a younger Hispanic male was selected for the job instead. She was terminated because of her extended leave and the hospital’s inability “to place [her] in a position in which [she was] able to perform the essential functions or one that [she was] willing to assume.”

The nurse filed a lawsuit, claiming race, age, and disability discrimination. At the end of the trial, the district judge granted the hospital’s motion to dismiss the race and age claims. The disability claim was allowed to go to the jury and a verdict was returned in favor of the hospital.

On appeal, Sotomayor agreed with the lower court that the nurse had not proved race or age discrimination. On the other hand, because of deficient instructions to the jury on the issue of reasonable accommodation, Sotomayor found that the jury’s verdict should be set aside and that the nurse was entitled to a new trial on the claim of disability discrimination.

For an employee to be protected under the Americans with Disabilities Act, she must be otherwise qualified to perform the essential functions of a job with or without reasonable accommodation. The ADA lists one form of reasonable accommodation as reassignment to a vacant position. Reassignment doesn’t constitute a reasonable accommodation, however, when there is a position comparable to the employee’s former job but the employer offers the employee a lesser position. The trial judge didn’t give the jury this full instruction about reassignment.

This failure was significant because the hospital had offered the nurse part-time work and a position at a different hospital site. The part-time work would have resulted in lower pay, and the change to a different site would have resulted in the nurse’s loss of seniority. Moreover, the nurse had presented sufficient evidence to show that she was just as qualified for the comparable nursing job she was denied in favor of another employee.

Under all these circumstances, since the trial judge didn’t instruct the jury that an offer of reassignment to a lesser position wasn’t a reasonable accommodation, the jury may have been misled about the proper standard for a reasonable accommodation when a reassignment was proposed. Sotomayor ruled, therefore, that the nurse was entitled to a new jury trial on the issue of disability discrimination.

Parker v. Columbia Pictures Industries, 204 F.3d 326 (2d Cir. 2000)
An employee injured his back at work and had to have back surgery. He was out of work for an extended period, and his employer sent a letter confirming the employee’s leave of absence and informing him of his rights under the Family and Medical Leave Act (FMLA) and under the employer’s short term disability plan. As his leave was drawing to a close, the employee talked to his supervisor about the possibility of returning to work on a part-time basis. The supervisor said he would investigate the possibility. Shortly thereafter, the employee was terminated.

The employee filed for Social Security disability benefits and benefits under his employer’s long-term disability plan. He also filed suit against his employer for discharging him in violation of the Americans with Disabilities Act (ADA). The district court dismissed the lawsuit without a trial. In reversing the district court’s decision, Sotomayor made several significant findings.

Because the employee had filed forms with Social Security and with the employer’s long-term disability administrator saying that he was completely unable to work, the employer argued that the employee could not now claim disability discrimination. He had said he was unable to work — period. Sotomayor disagreed, relying on a previous U.S. Supreme Court ruing that said statements made for purposes of securing Social Security or long-term disability benefits don’t necessarily bar an employee from asserting an ADA claim. Why? Social Security and long-term disability don’t take into account the concept of reasonable accommodation, but the ADA does.

The employer then argued that, in any event, the employee had not shown that he was capable of performing his job with or without a reasonable accommodation. Not so fast, said Sotomayor. The medical evidence about his ability to perform his job and the need for a reasonable accommodation was conflicting, creating an issue of fact for a jury to decide.

OK, contended the employer, the employee himself conceded that one reason he had been fired was that his supervisor wanted a more loyal employee. Thus, even if the employee’s disability was taken into account, the employer had a separate reason for termination: the employee’s lack of loyalty. Sotomayor remained unconvinced, because the Second Circuit had yet to decide whether an employer could be liable for disability discrimination when a “mixed-motive” was involved. In other words, if disability discrimination is only part of the reason for an employee’s termination, can he still prevail in an ADA case?

In deciding this question for the first time in the Second Circuit, Sotomayor compared the ADA with another disability discrimination statute, the Rehabilitation Act of 1973, which applies to federal contractors and subcontractors and other organizations receiving federal funds. The Rehabilitation Act says it’s unlawful to discriminate against an employee “solely by reason of [an individual's] disability.” The ADA doesn’t use the term “solely,” so Congress obviously intended that an employee could prove disability discrimination under the ADA by showing that his disability was “a reason” for his discharge.

Finally, the employer asserted that the lower court was still correct to dismiss the employee’s ADA case without a trial. The employee was unable to return to work at the end of his leave, and the employer was, therefore, entitled to terminate his employment. Not necessarily so, according to Sotomayor. An employer must consider whether there is a reasonable accommodation for the employee, particularly when the employee asks for one. The employee in this case had asked his supervisor about part-time work, but no employer representative ever got back with him concerning his request. At the very least, an employer must engage in a discussion with an employee about a reasonable accommodation. The employee’s case shouldn’t have been dismissed without a trial, so Sotomayor returned the case to the lower court for a jury trial.

Summary of Sotomayor’s ADA Decisions on the Second Circuit
These cases are significant because they involve Sotomayor’s approach to using precedent, to resolving issues never before decided in her circuit, and to determining a statute’s meaning by comparing it to a similar law. It’s unlikely that either of Sotomayor’s ADA rulings as a judge on the Second Circuit would be changed as a result of the ADA Amendments Act. In fact, one thing that will receive more scrutiny than ever before under the new ADAAA is the concept of reasonable accommodation, an issue Sotomayor dealt with extensively in both of these ADA cases.

Next, we’ll look at Sotomayor’s Second Circuit decisions on harassment and retaliation.