Safety and OSHA News

Injured worker fired for not being able to do his job: Is that disability discrimination?

A jury ruled a company discriminated against an employee when it fired him for not being able to do his job after a workplace injury. Did an appeals court uphold the jury verdict? 

Tony Gunter worked for Bemis Co. as a press assistant and injured his right shoulder on the job in January 2013. Gunter continued working for six months while going to physical therapy, but his shoulder didn’t improve. He had shoulder surgery in August 2013.

Gunter returned to light duty several weeks later. In December 2013, he returned to his job as a press assistant with temporary restrictions: no reaching with his right arm and no overhead work.

Bemis sent Gunter for a functional capacity evaluation. The evaluation concluded Gunter didn’t satisfy “the strength/lifting/carrying or the right upper extremity positional demands of his job.”

The doctor who performed surgery on Gunter reviewed the functional capacity evaluation. In June 2014, the surgeon authorized Gunter to return to regular duty with these restrictions:

  • no overhead work with his right arm
  • 40-pound maximum for occasional lifting, 20-pound maximum for frequent lifting
  • lifting 20 pounds restricted to raising materials to his waist or chest but no higher
  • no overhead lifting, and
  • only occasional outstretch with his right arm.

Gunter continued to work.

On July 2, 2014, Bemis placed Gunter on paid leave, reasoning it could no longer accommodate his restrictions. On July 18, 2014, the HR manager and safety manager met with Gunter for about an hour to discuss the situation, and Gunter remained on leave. On Nov. 3, 2014, Bemis fired Gunter.

Gunter sued, alleging Bemis violated the Americans with Disabilities Act. A jury ruled in Gunter’s favor, finding Bemis violated the ADA by firing him because of his disability, by failing to accommodate his disability and by failing to engage with him in the interactive process.

The jury awarded Gunter $181,522 in back pay, $92,000 in compensatory damages and $315,000 in front pay. The court reduced the jury award by eliminating the damages for lost insurance benefits. Bemis appealed.

Could he perform essential functions?

Bemis argued Gunter couldn’t perform the essential functions of the job, therefore the ADA didn’t apply to his case.

Under the ADA, an employer can’t discriminate against a qualified individual because of their disability. In effect, Bemis was saying Gunter’s limitations made him unqualified for the job.

Recently, the Sixth Circuit ruled that a reasonable jury could determine, based on the evidence presented at trial, that Gunter still could perform the essential duties of the job.

At Bemis, duties of a press assistant include:

  • making sure presses operate properly
  • loading raw materials into the press
  • taking printed material off of the press
  • inspecting the quality of materials when they come off the press
  • solving mechanical problems, and
  • unjamming the presses.

The jury heard evidence that Gunter met the job’s lifting requirements. Bemis encouraged employees not to lift anything over 40 pounds by themselves. The company also had equipment that employees could use to lift objects weighing as little as 20 pounds.

Employees at Bemis could ask their co-workers to help lift heavier materials and often did. Employees also used ladders for equipment that needed to be lifted higher. The court noted this established an option for workers, like Gunter, who couldn’t lift over their waist.

Evidence was also presented that press assistants didn’t need to do overhead work.

But Bemis countered that Gunter’s functional capacity evaluation and the surgeon’s report precluded him from being able to complete the requirements of a press assistant, which included lifting 45 pounds and reaching 24 inches.

However, the court said a doctor’s restrictions don’t dictate the essential functions of a job. Evidence had been presented to the jury that Gunter could handle the fundamental duties of a press assistant, even with his medical restrictions.

The take-home: A company may draft job descriptions very carefully. But if the reality of a job is different from the description, the court will use what the job actually entails, not the description, in a case like this.

This case isn’t quite over. The Sixth Circuit ruled the trial court erred when it took the possibility of reinstatement for Gunter instead of front pay off the table. While it upheld the jury verdict that the company discriminated against Gunter, it sent the matter of reinstatement versus front pay back to the trial court for reconsideration. The only problem: While the case was winding its way through the courts, the Bemis plant where Gunter had worked closed. So now the lower court will have to reconsider, given the circumstances, what is appropriate front pay for Gunter, similar to what he would have been given if he was employed at the plant when it closed.

(Tony A. Gunter v. Bemis Company Inc., U.S. Circuit Crt. 6, No. 17-6144/6185, 10/16/18)

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