Virginia Lawyers Weekly VA Lawyers Weekly
Where an employee’s doctor concluded he had significant physical restrictions, including limitations on lifting, standing, walking, bending, squatting, crawling, pushing and pulling, and many of these were requirements of the engineering technician position pursued by the employee, he was not qualified for the position.
Background
James Lee Keith alleges claims against Volvo Group North America LLC for discrimination, failure to accommodate and interference in violation of the Americans with Disabilities Act, or ADA. Volvo has filed a motion for summary judgment.
Judicial estoppel
Defendant first argues that plaintiff is judicially estopped arguing that he is a qualified individual with a disability due to his application for long-term disability, or LTD, benefits. The Supreme Court has held that a plaintiff’s “sworn assertion in an application for disability benefits that she is, for example, ‘unable to work’ will appear to negate an essential element of her ADA case.
Plaintiff applied for LTD benefits in 2014. In 2015, The Hartford determined that plaintiff was “totally disabled” because he was “unable to engage in any regular employment or occupation by reason of any medically demonstrable physical or mental condition with the Company at the Plant or Plants where the employee works.” On Aug. 17, 2018, plaintiff again certified that he was totally disabled and that he did not expect to be engaged in any work activity.
Plaintiff argues that these assertions were made relative to particular positions, but when he saw the engineering technician position, he was qualified for that position. However, the interactive process between Volvo and plaintiff demonstrated that plaintiff could not perform the essential functions of the engineering tech position. Therefore, plaintiff has not met his burden to explain the contradiction between his LTD application and his ADA claim. Based on this analysis, plaintiff is estopped from pursuing his ADA claims. Even so, the court will address them below.
Qualified individual
Plaintiff maintains that he is a qualified individual with a disability with respect to the engineering technician position. The essential functions of the engineering technician position, according to Volvo, include bending, stooping, squatting, twisting, climbing, pushing/pulling up to 50 pounds, lifting up to 50 pounds and standing for extended periods of time. On June 11, 2018, plaintiff’s doctor completed a form stating that plaintiff had significant physical restrictions, including limitations on lifting, standing, walking, bending, squatting, crawling, pushing and pulling. Therefore, plaintiff is not a qualified individual with a disability.
Plaintiff argues that these essential functions are contradicted by a 10-page list of essential functions and required physical demands for the engineering tech job. This document was created in 2020, two years after plaintiff demanded to be placed in the engineering technician position. Written job descriptions are typically relevant only if prepared “before advertising or interviewing applicants for the job.”
Moreover, the document states that engineering technicians will have to occasionally lift up to 39.9 pounds. This is more than the 20-pound limitation provided by Dr. Davis.
Finally, plaintiff cites the opinions and comments of certain co-workers and a Hartford claims representative about the physical demands of the engineering tech position and plaintiff’s purported ability to perform that job. Many of these statements are unverified. Moreover, the testimony offered from these witnesses contradicts plaintiff’s admission that the position required lifting up to 50 pounds.
Disability discrimination
Plaintiff cannot establish a prima facie case of discrimination because he is not a qualified individual with a disability. Even if plaintiff could establish a prima facie case, Volvo had a legitimate, non-discriminatory reason for not placing plaintiff in the engineering tech position — plaintiff was unable to perform the essential functions of that position given his doctor-imposed physical limitations. Plaintiff has not shown that this reasoning was a pretext.
Failure to accommodate
Plaintiff cannot prove a prima facie case for failure to accommodate because he is not a qualified individual with a disability. Volvo has also accommodated plaintiff by allowing him to remain out of work on paid sick leave and LTD. Further, while a reasonable accommodation may include reassignment to a different job position, plaintiff in this case acted as if there was only one accommodation that he wanted — placement in the engineering tech position.
Plaintiff also claims that Volvo did not engage in an honest interactive process to determine appropriate accommodations. To the contrary, the record demonstrates that Volvo repeatedly engaged with plaintiff about the accommodating his disability.
ADA interference
Plaintiff alleges that Volvo interfered with his rights under the ADA by not accommodating his disability. First, plaintiff failed to exhaust his administrative remedies prior to filing this claim in federal court. Moreover, this is simply another version of plaintiff’s failure to accommodate claim.
Defendant’s motion for summary judgment granted.
Keith v. Volvo Group North America LLC, Case No. 7:20-cv-00521, Jan. 18, 2023. WDVA at Roanoke (Dillon). VLW 023-3-021. 23 pp.
