Middle District Court of Tennessee No. 3:07-0506, 2007 WL 2823312 September 27, 2007 Keywords:
employment, pro se plaintiffs, protected activity
Tennessee case permitting pro se retaliations claims to go forward
Facts of the Case
Mr. Douglas Toalston, an employee of Bridgestone Firestone North American Tire, LLC (Firestone) and in the process of filing a worker’s compensation claim, alleged Firestone discriminated against him by forcing him out of employment and denying him privileges granted to other employees. Mr. Toalston, representing himself (i.e., acting pro se), raised three federal issues: 1) employment discrimination under Title I of the ADA, 2) employment discrimination and retaliation in violation of Title VII of the Civil Rights Act, and 3) retaliation in violation of the Fair Labor Standards Act (FLSA).
Issues of the Case
- Whether Mr. Toalston met the burden of proof required to state a cause of action under the ADA, Title VII, and the FLSA.
Arguments & Analysis
1. Mr. Toalston alleged Firestone discriminated against him by forcing him out of employment and denying him privileges granted to other employees on the basis of disability.
Specifically, he argued he was a qualified individual with a disability (in part, demonstrated by the nature of his workers’ compensation claim), and experienced adverse employment actions because he proceeded with a workers’ compensation claim for an injury on the job.
2. Mr. Toalston further claimed that Firestone violated Title VII’s discrimination and retaliation provisions prohibiting adverse employment actions on the basis of his participation in a protected activity.
He argued that filing a workers compensation claim is a protected activity, Firestone was aware of Mr. Toalston’s protected action, and there was a causal connection between the protected activity and the adverse employment action.
3. Finally, it appears the Magistrate Judge assisted Mr. Toalston to make out a claim for retaliation under the FLSA; specifically that “it is unlawful for an employer to discharge or discriminate against an employee because the employee ‘has filed any complaint or instituted or caused � any proceeding under or related to [the FLSA].'”
Firestone made no arguments in defense to the claims asserted by Mr. Toalston. Firestone’s only argument was that Mr. Toalston asserted no viable legal theory, and filed a motion to dismiss.
The court indicated that the filing of a worker’s compensation claim is a protected activity within the Sixth Circuit (though there is disagreement among other Circuits), and Mr. Toalston could proceed with his ADA and Title VII claims. However, because an individual claiming retaliation under the FLSA must show the retaliation occurred after filing an FLSA claim, the current litigation is the original FLSA claim, and of the alleged retaliation took place before filing this claim, Mr. Toalston did not meet the requirements for retaliation under the FLSA.
The court concluded that Mr. Toalston met the minimum requirements necessary to assert a discrimination claim under the ADA and under Title VII, but not for a discrimination claim under the FLSA, and allowed the ADA and Tile VII claims to go forward.
Policy & Practice
Pro Se Plaintiffs
Courts hold pro se plaintiffs to a less stringent pleading standard. The U.S. Supreme Court in Haines v. Kerner
(1972) announced pro se plaintiffs only have to show the absolute minimum of evidence for a pleading. In the present case, the judge not only held the plaintiff to the minimum of evidence, but appears to have assisted the plaintiff in clarifying his legal claims.
In Thornton v. Denny�s Inc.
(1993), the Sixth Circuit accepted the filing of a workers’ compensation claim as a protected activity, to satisfy the first element necessary to prove retaliatory discharge under Title VII of the Civil Rights Act. Other courts, such as the Fifth Circuit, have decided to accept only the protected activities specifically listed in Title VII (47 U.S.C.A. �2000 e-3), that is: opposing any practice made an unlawful employment practice by Title VII; making a charge; or testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.
Facts of the Case
Mr. Terrance Thomas was employed by Trane as a sheet metal technician. In early 2003, Mr. Thomas was diagnosed with both asthma and lymphoma. To treat the latter of these conditions, he underwent a round of chemotherapy and had a stem cell transplant. These treatments left Mr. Thomas’s immune system abnormally susceptible to infections and depleted his energy level to the point where he was too exhausted to walk. In addition, his asthma made it difficult to breathe and he was often observed coughing by other Trane employees.
Mr. Thomas’s medical conditions caused him to miss work frequently. In July 2003, Trane approved a five and one-half month leave of absence for Mr. Thomas to recover from his recent stem cell surgery. On February 4, 2004, after consultations with his doctor, Mr. Thomas notified Trane that he would be able to return to work without restrictions by April 5, 2004. He also notified Trane�s Human Resources Department that there would be times when he would have to miss work due to his ongoing medical treatment. A Human Resources staffer specifically told him not to use vacation time for these absences, and that these absences would not be counted against his attendance record. From June 2004 to February 2005 Mr. Thomas was absent a total of 19 working days; thirteen of these absences were recorded as vacation time, while illness was listed as a reason for the 6 remaining absences.
Trane uses a “no-fault” attendance policy. All absences, regardless of the reasons, are included in the calculation of an employee’s attendance performance. Employees that do not maintain a minimum attendance performance goal of 98% are “in serious jeopardy” of losing their job. Mr. Thomas was aware of Trane’s no-fault attendance policy, and it was included in the employee handbook he reviewed. Accordingly, on November 18, 2004 Trane gave Mr. Thomas a warning regarding his attendance and notified him that future absences would result in discipline up to and including termination. On December 13, 2004 Trane provided Mr. Thomas with a second warning regarding his absenteeism. This warning claimed that, as of November 30, 2004, Mr. Thomas’s absenteeism rate was 2.4038% and advised him that any additional absences would result in his termination.
On February 15, 2005, Mr. Thomas became ill with a fever and he notified his supervisor that he would need to see a doctor. His supervisor told Mr. Thomas to “take care of himself” and allowed him to miss a portion of the day’s work to go to the emergency room. Mr. Thomas returned to work later in the day with a note from a doctor advising his employer he would be unable to work for the remainder of the week due to his illness. At this point, Trane’s Manager of Human Resources reviewed Mr. Thomas’s absences and determined: First, because Mr. Thomas�s requested absence was for less than 5 days, it did not qualify as a leave of absence under the Family & Medical Leave Act; Second, Mr. Thomas was at “final warning” status for attendance violations; and Third, in accord with Trane’s attendance policy Mr. Thomas was to be terminated.
At the time of termination, Mr. Thomas had worked at Trane for a total of five years and two-months and had accumulated ninety-two hours of vacation time. He requested that his accumulated vacation time be used when follow-up treatment necessitated his absence from work. Trane did not allow him to do so. Mr. Thomas filed this claim against Trane alleging that his termination was discriminatory and due to his medical conditions, in violation of the ADA.
Issues of the Case
- Whether Mr. Thomas is a qualified individual with a disability, and whether his proposed accommodation of “indefinite periods of leaves of absence” is reasonable.
Arguments & Analysis
1. Mr. Thomas submitted evidence of his medical diagnosis of lymphoma and asthma and asserted that these conditions were in fact disabilities that substantially limited his ability to perform daily life activities like walking and breathing.
The court rejected Mr. Thomas’s claim on two grounds. First, it stated that: “it is generally insufficient for individuals attempting to prove disability status to merely submit evidence of a medical diagnosis of an impairment.” Instead, the court would require evidence that Mr. Thomas’s medical conditions were “worse than that suffered by many adults” to be considered a disability under the ADA. Also, the court noted that Mr. Thomas presented only a previous diagnosis of cancer, and that after chemotherapy and a stem cell transplant his remission indicated he no longer had this medical diagnosis.
Second, the court found that Mr. Thomas was unable to show that his medical conditions “substantially limited his ability to perform a major life activity.” In his deposition, Mr. Thomas described feeling short of breath, tired, and that he “did not feel like walking because it takes away a lot of energy.” The court found this to be a “vague general description of an alleged disability.” Because Mr. Thomas could physically walk, breathe and work, the court determined that he functioned only “moderately below average,” and no worse than that experienced by many adults with medical conditions.
Finally, the court reasoned that even if Mr. Thomas did have a disability for purposes of the ADA, his proposed accommodation of “indefinite periods of leaves of absence” were not reasonable. Because Mr. Thomas was unable to provide an assured time period for his return to full employment, the court held that his constant requests for leave were unreasonable.
The court concluded that Mr. Thomas was not a qualified individual with a disability under the ADA and that his requested accommodation was not reasonable.
Policy & Practice
Trane�s “no-fault” attendance policy raises important policy questions:
- The Court found Mr. Thomas to be outside the scope of ADA protections because he was not a qualified individual with a disability. Additionally, Mr. Thomas did not request as an accommodation that Trane modify the no-fault attendance policy such as to distinguish and treat his illnesses differently. Therefore, modification of the employer’s no-fault attendance policy was never evaluated as a reasonable accommodation.
- Is it fair for an employer not to distinguish employee absences based on their causes? Is an employee who misses work for frivolous reasons but retains an attendance rate of 98%, more valuable than an employee that, for legitimate medical reasons, has an attendance rate of 97.6%?
- In calculating an employee’s attendance rate, what length of time is to be used? For example, Mr. Thomas was notified on Dec. 4, 2006 that his absenteeism rate was 2.4%. Trane did not specify if this was for the entire year of 2004, or in light of his most recent medical absences from the preceding month. Arguably it is likely that the longer the period of time being used to calculate the rate (e.g., 6 months or 1 year), the lower the absenteeism rate and accordingly the higher the attendance rate.
- Why is an employer that adopts a no-fault attendance policy able to deny an employee access to his unused vacation days to cover absences for medical reasons? If an employer ostensibly does not care why an employee is missing work, what difference does it make if the employee is at home recovering from medical treatment or truly on vacation?
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These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time. In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.