Armored Truck Company Has Ironclad Defense to Disability ClaimChristopher Olmsted
July 15, 2008 — 1,205 views
Employers frequently experience the following scenario: Employee is suspected of wrongdoing. Employer investigates and decides to terminate Employee. At the eleventh hour, before he is fired, he claims that he is injured and disabled. He files a workers’ compensation claim. Employer wants to fire Employee, but is concerned about the appearance of discrimination and retaliation. Has the employee trapped the employer?
A May 2008 California appellate court in a case titled Arteaga v. Brink’s Incorporated addressed this very scenario. The employer won for two important reasons.
First the facts. Carlos Arteaga worked as a “messenger” in one of Brink’s armored trucks. As a messenger, he worked with a driver and a guard in the truck. He was responsible for handling the money picked up and transported in the truck.
Brink’s management noticed that over time, money went missing on Arteaga’s routes. The problem culminated when Arteaga could not account for several thousands of dollars in missing cash from an ATM. Arteaga was the only employee who had handled the cash from that ATM. Management suspected Arteaga, and conducted an investigation. The company did not find evidence that he had stolen the money, but the coincidence was striking. Each time money went missing, Arteaga had been on the job. Management decided to terminate Arteaga because he could not account for the missing money, and due to a loss in confidence in him.
Here’s the complication: During the investigation, Arteaga informed Brink’s for the first time that he was feeling a combination of “pain” and “numbness” in his arms, fingers, shoulders, and feet. He also disclosed for the first time that he was undergoing “a lot of stress.” He completed a workers’ compensation claim form, writing that the pain had started in the last year after repeatedly lifting boxes of coins.
A supervisor took Arteaga to a doctor. The physician determined that Arteaga was “okay” and sent him back to work with a full release. The physician completed a workers’ compensation form to that effect.
At some point after his termination, Arteaga was diagnosed with carpal tunnel syndrome.
Brink’s went ahead with the termination.
Arteaga sued the company. The complaint consisted of two causes of action.
The first, under the California Fair Employment and Housing Act (FEHA), alleged that Arteaga suffered physical disabilities in his hands, wrists, elbows, neck, and shoulders, all of which he had reported to Brink’s. Thereafter, Brink’s purportedly engaged in acts of discrimination, harassment, and retaliation by (1) failing to determine how to accommodate him, (2) failing to engage in a good faith interactive process to determine effective reasonable accommodations, (3) failing to move him into another position, and (4) terminating him.
The second cause of action, for wrongful termination in violation of public policy, alleged the same disability discrimination theory as the first cause of action, plus retaliation for filing workers’ compensation claims — a right protected by Labor Code section 132a.
The case never made it to trial. Brink’s filed motion for summary judgment, arguing that Arteaga lacked evidence supporting his claim. The trial court agreed and granted the motion. Arteaga appealed.
What Is A “Disability?”
On appeal, the court examined the disability discrimination claim, and focused on the question of whether or not Arteaga had a disability within the definition of FEHA.
Defining “disability” under California law is very important issue, and California employers ought to pay careful attention to the definition. Unlike the federal ADA, California’s FEHA has a very broad definition of disability. Until this decision, courts have not focused much on whether particular physical conditions do or do not qualify as disabilities.
FEHA is explicitly and unabashedly liberal—it says so right in the text of the statute. As stated in the FEHA: “The law of this state contains broad definitions of physical disability, mental disability, and medical condition. It is the intent of the Legislature that the definitions of physical disability and mental disability be construed so that applicants and employees are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” “The provisions of [the FEHA] shall be construed liberally for the accomplishment of [its] purposes . . . .”
FEHA fulfills its liberal aspirations in the definition of “disability.” Under the FEHA, “physical disability” includes having a physiological disease, disorder, or condition that, by affecting the neurological or musculoskeletal body systems, special sense organs or skin, “limits” a “major life activity.” The key word is “limits.” It is very broad, and is contrasted with the federal ADA, which requires a “substantial” limitation. “Limits” is synonymous with making the achievement of a major life activity “difficult.”
Management attorneys and HR experts have long lamented this broad definition. They are heard to complain, in exaggerated fashion, that just about any condition can make life difficult. They say that is too easy to allege disability discrimination.
The court in this case tackled the definition head on. The court began by considering what the “baseline” for “difficult” should be. “In deciding whether [the employees’] limitations . . . make them ‘disabled’ under FEHA, the proper comparative baseline is either the individual without the impairment in question or the average unimpaired person.”
For example, one could look at an employee with a 25 percent reduction of former capacity to lift, or an employee who lost approximately 50% of her pre-injury capacity for manual tasks. Additionally, one could look to the normal or average population. For example, in considering whether a disability caused difficulty with tasks such as dressing and sleeping, one can look to whether most people can perform those tasks without difficulty.
Turning to Arteaga, the court examined his claim of pain symptoms. Arteaga did not have an actual disability while employed by Brink’s because his symptoms did not make the performance of his job duties difficult as compared to his unimpaired state or to a normal or average baseline.
o Arteaga did not act like the pain impaired him. During five years at Brink’s, Arteaga never exhibited any signs of a medical problem. Supervisors never saw him suffering from any medical condition. Arteaga never mentioned his pain or numbness to another member of the crew.
o Arteaga did not say that the pain limited his abilities. He said his symptoms limited only his ability to play soccer, which is not a major life activity.
o The pain was not significant enough to mention. He waited at least a year to mention the pain to management because he thought it was going away — and only after learning he was under investigation for cash shortages.
o He never asked for a change in position or duties on account of a physical disability. His symptoms, perhaps bothersome, did not make accomplishing his job difficult.
o Arteaga described generic pain symptoms, but did not provide evidence that the pain was severe enough to interfere with his ability to work.
o Medical records did not support the existence of a disability. Seven months before termination, he was given a clean bill of health. Even when he did complain of pain, just before termination, the doctor found no objective evidence of a physical disability. “An employer does not have to accept an employee’s subjective belief that he is disabled and may rely on medical information in that respect.”
“Pain alone does not always constitute or establish a disability,” observed the court. “An assessment must be made to determine how, if at all, the pain affects the specific employee. In this case, the pain and numbness did not make work difficult for Arteaga.”
Relying on a U.S. Supreme Court case, the appellate court noted that in cases involving carpal tunnel syndrome, it is particularly important to look beyond the medical diagnosis and analyze how the condition affects the employee’s activities. Carpal tunnel syndrome can range from mild symptoms to significant impairment.
Therefore, the court concluded, Arteaga could not establish a “prima facie” case of disability discrimination, because he did not provide evidence that he had a disability as defined by FEHA.
For good measure, court went on to rule that even if Arteaga did have a disability, Brink’s provided evidence showing that it did not terminate him on that account. Instead, it established that it terminated him because of the missing money.
Arteaga argued that the missing money was just a story to cover up the real reason for termination—discrimination. To prove this, Arteaga argued he was terminated so soon after disclosing his “physical disability” — less than a week — that the timing, by itself, raises a dispute as to the company’s true motivation.
The court rejected this contention. Employees cannot dress up a termination decision to look like discrimination merely by pointing to how close in time a complaint or disclosure came to the termination decision. Added the court: “This is especially so where the employer raised questions about the employee’s performance before he disclosed his symptoms, and the subsequent termination was based on those performance issues.”
This is a key point for employers, because they are so often faced with employees making last-ditch excuses to avoid termination. The fact that the termination happens right after the employee disclosure of injury does not automatically raise the inference of discrimination or retaliation. Of course, the timing plus some other circumstantial evidence could suffice.
As a side note, remember that the court emphasized that timing is particularly benign where the employer was already on the termination trail before the employee made his disclosure. This is why it is so important to promptly conduct a workplace investigation and come to a quick yet fair determination. Delay and you may leave an opening for the employee to pick up a protected classification (disability, workers compensation, etc)—be it legitimate or otherwise. Then your decision becomes more complicated and risky.
Quoting earlier published case decisions, the court recognized that employers should not be forced into a dilemma. “Employers are sometimes forced to remove employees who are performing poorly, engaging in improper work conduct, or severely disrupting the workplace. . . . [The law] does not prevent an employer from removing such an employee simply because the employee recently engaged in a protected work activity . . . .”
Absent a showing that the company’s reason for terminating Arteaga was false, the employee was unable to establish disability discrimination and wrongful termination in retaliation for filing a workers compensation claim.
o In order to determine whether an employee has a physical disability within the meaning of FEHA, you will need not only a medical opinion regarding the physical condition (if in doubt), but also facts demonstrating that the condition makes a major life activity more difficult. The mere existence of pain or other symptoms is not necessarily enough.
o Promptly conduct and conclude investigations in order to decrease the chance that an employee will make an unrelated complaint or disclosure that places her into a protected category (e.g. workers compensation claim, disability, whistleblowing, etc.)
o Investigations should be conducted in a uniform manner, and conclusions should be consistent with prior incidents involving other employees to avoid the appearance of discrimination or retaliation.
o If an employee does make a protected claim during an investigation, carefully address that claim separately, on its own terms. If possible, have someone other than the investigator deal with it. Be aware of the possibility of a retaliation or discrimination claim and seek legal counsel. Be objective and allow for the possibility that the claim is legitimate, but also be forewarned that the employee may be trying to set a lawsuit trap.
Christopher W. Olmsted is an attorney and shareholder with the San Diego law firm Barker Olmsted & Barnier, PLC. He advises clients regarding legal compliance with state and federal labor and employment law. Mr. Olmsted also represents businesses clients in state and federal employment law litigation, as well as in connection with agency enforcement actions. Mr. Olmsted can be reached at 619-682-4040 or [email protected] For additional articles, visit www.barkerolmsted.com