“Nobody In My Department Works With Limitations…”

Nobody in my department works with restrictions

 

Albert E. Gucker was a 30 year veteran at U.S. Steel’s Irvin Works Tractor Shop. During 8 of those years he had a 30-pound lifting restriction imposed by company physicians. The presence of the restriction meant one of two things: his job did not require the ability to safely lift 30 pounds or his restriction had been an accommodation. In either case he was receiving protection under Title I of the Americans with Disabilities Act (ADA).

All this changed the day he returned to work after an uncomplicated gallbladder surgery and met with area manager Don Hubert. The telling of the resulting $5.5 million cautionary tale reminds us of the need to:

  • Train all levels of management in the “don’ts” of the ADA.
  • Monitor and sanction violations of company-driven ADA policy at all levels of management (sexual harassment, retaliation, reasonable accommodation).
  • Demand involvement of a qualified human resource professional in all discussions of changing an individual’s right to work that evolves from a medical or cognitive issue.
  • Memorialize and periodically re-visit all ADA Title I reasonable accommodation activity.
  • Engage in the Interactive Process when modifying or withdrawing an in-place reasonable accommodation.
  • Periodically assess the skills of post-offer testing or functional capacity evaluation vendors.

The Short Story

According to the facts of the case as reported in VerdictSearch (http://verdictsearch.com) plaintiff Albert Gucker, 61, a mechanic, was constructively discharged from U.S. Steel, in Pittsburgh on December 28, 2011. On that day, Gucker, who had returned to work after a one-month recovery from gallbladder surgery, underwent a return-to-work exam by a company physician. The doctor released him for work with the same 30-pound restriction he’d had for the past 8 years.

Five hours later, a new supervisor allegedly told Gucker that his limitations would not be tolerated and that he was to have them removed. According to the court docket, Don Hubert, the area manager in charge of the Irvin Works Tractor Shop said,

“Nobody in my department works with limitations, get the limitations removed from 2003.”

The Result

As reported in VerdictSearch, the jury found that Gucker was a qualified individual with a disability and that U.S. Steel should have accommodated him. Jurors determined that U.S. Steel terminated him because of his disability or that he suffered an adverse employment action because of his disability. According to the jury, U.S. Steel did not prove that accommodating Gucker’s disability would not be possible because it would threaten his safety or the safety of others. The jury concluded that U.S. Steel terminated Gucker because of his disability and that it had knowledge that it was violating the law or may have been violating the law. Gucker was determined to receive $5.55 million.

Commentary

What caught my eye in the published ruling on this case was both the multitude of violations of law that were alleged to have occurred (some were dropped) and the number of professional disciplines involved in the action. This case serves as another “must read” for human resource professionals, work evaluators, and attorneys who depend on the use of specialized knowledge as defined by Federal Rule of Evidence 702 in ADA Title I medical examination cases: a functional capacity evaluation was one of the features of the case that went against the company. The issue of testimony by experts and co-workers was the subject of high-energy case conferences. And the entire process of reasonable accommodation rested at the heart of how this interaction was mismanaged.

Because of the importance of this case to so many colleagues of different stripes I am going to put together a webinar on the mechanics behind the legal issues present here. I will take a practical look at how the issues raised affect your daily practice. Stay tuned as I plan to schedule a webinar covering this case in the near future.

Most post-offer tests, functional capacity evaluations, physical capacity evaluations, and job analyses will NOT comply with the demands of Title I of the ADA. Save your practice from inadvertent violations of federal, and in some cases, state employment discrimination law by registering for our new course FCE & Post-Offer in the Era of Title I.

Roy Matheson

http://reasonableaccommodation.com/about/

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