Injured worker who could not do physical labor can’t revive ADA, FMLA claims

Although an injured worker was denied his requested accommodation for a workplace shoulder injury—that he be provided a driver—and claimed he was constructively discharged, the Third Circuit refused, in an unpublished opinion, to revive his ADA and FMLA claims, along with analogous state law claims. The Third Circuit U.S. Court of Appeals affirmed dismissal of his claims on summary judgment, finding that the FMLA did not cover the sister companies that employed him as an “integrated employer,” the worker could not perform the essential job functions of physical labor even if an ADA accommodation of the driver had been made, and that the worker had not alleged sufficient causation between protected ADA activities and his eventual constructive discharge to show retaliation.

Cleaning worker hurt while with sister companies.

The worker supervised disaster cleaning projects for CPR LLC, when he hurt his shoulder while on the job. He filed for workers’ compensation and received it, but his request for a driver as an accommodation was denied, so he went on leave instead. After he returned to work (allegedly early and unannounced), he was fired; he then filed a discrimination charge with the EEOC. While this charge was pending, the worker was hired by CPR LLC’s sister company, CPR Inc., as a supervisor at a different location. This new role, however, required the worker to commute a long distance, and CPR Inc.’s offer to pay for the worker to move was retracted when the worker’s EEOC claim came to light, which the worker alleged amounted to a constructive discharge.

He then sued both CPR LLC and CPR Inc. under the FMLA, ADA, and state law. The district court dismissed all his claims on summary judgment.

Sister companies not integrated employer, dooming FMLA claims.

The Third Circuit affirmed the district court’s dismissal of the worker’s FMLA claims after finding that neither CPR LLC nor CPR Inc. met the employment requirements for the FMLA and could not be considered a single employer under the integrated employer test. Despite being owned by a single person, CPR, LLC, and CPR Inc. had separate offices, equipment, records, and management, and there was “no evidence that the managers of one entity had any control over the labor decisions of the other entity.”

Could not perform essential job functions.

Dismissal of the worker’s claim of discrimination under the ADA was also affirmed because the Third Circuit found that he was unable to perform the essential functions of his job with CPR LLC, even with the requested accommodation. While the worker only requested a driver as an ADA accommodation, both the district and appellate court found that he had failed to show that physical labor—something he could not do with his injury—was not an essential part of his job. The official job description in his employment agreement mentioned that physical cleaning was a part of the role, and this comported with the description of the job as it was advertised on job boards and even with the worker’s own testimony that he helped with physical cleaning “most of the time.” He was unable to overcome this evidence with self-contradictory testimony and the testimony of one of his potential managers at the sister company, CPR Inc.

Indefinite leave not a reasonable accommodation.

Without a driver, the worker requested a leave so he could heal from his shoulder injury. However, the duration of the leave that he requested “was worded loosely as being for a few weeks or a few months.” This was leave for an indefinite amount of time without a firm return-to-work date and not a reasonable accommodation under the ADA.

Insufficient evidence that either discharge was retaliatory.

Finally, the worker claimed that both of his discharges—from CPR LLC after returning from leave for his shoulder injury, and from CPR Inc. after his EEOC claim came to light and his moving expense reimbursement offer was retracted—came in retaliation for his ADA-protected activities. As for his termination from CPR LLC, the worker’s evidence of causation only reflected instances that happened years before he requested a driver as an ADA accommodation. None of the evidence constituted a pattern that would establish an inference that the worker was fired for requesting leave as an accommodation.

SOURCE: Kieffer v. CPR Restoration and Cleaning Services, LLC, (CA-3), No. 16-3423, May 15, 2018.
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