There is an often repeated maxim that “it is not what you know, but what you can prove.” On December 3, 2018, Judge Wollman issued an opinion in the Eighth Circuit, which might as well have referenced that maxim and credited the unknown author. Specifically, the Circuit affirmed an order from the district court granting summary judgment to Steak ‘n Shake on claims a Plaintiff’s claims for American with Disabilities Act (ADA) discrimination and his Missouri Worker’s Compensation claim. Denson v. Steak ‘n Shake, Inc., No. 18-1039 (8th Cir. 2018)
Factually, Mr. Denson (Plaintiff) broke his hip in 2010 and later had a total hip replacement. Id. at 2. In the fall of 2011, the Plaintiff’s surgeon found that he had reached the “maximum medical improvement” and permanently restricted him to clerical or sedentary work with no lifting. Id. Subsequently, the Plaintiff was awarded Social Security benefits and determined to be disabled in September 2012. Id. Two years late, Steak ‘n Shake hired the Plaintiff as a fountain operator. Id. The Plaintiff informed Steak ‘n Shake that he suffered back problems and that he had undergone hip replacement; however, the Plaintiff stated that he could lift fifteen to thirty pounds. Id.
Ultimately, the Plaintiff fell twice in early 2015 at Steak ‘n Shake and was subsequently restricted by his doctor to no lifting more than thirty pounds, no kneeling, squatting, stooping, climbing; and no walking or standing for more than forty-five minutes per hour. Id The Plaintiff’s doctor affirmed the original restrictions enacted by his surgeon. Id. Steak ‘n Shake terminated the Plaintiff after having removed him from the schedule for a safety evaluation. Id. The Plaintiff filed a discrimination charge with the Equal Employment Opportunity Commission alleging that Steak ‘n Shake could have accommodated his disability by reassigning him to “the host, dishroom, and/or prep person position.” Id. However, all of these positions required periods of standing. Id. at 4. Therefore, the Eighth Circuit affirmed the district court’s grant of summary judgment on the plaintiffs ADA and workers compensation claims because the Plaintiff was not a qualified individual with a disability. Id.
To establish a prima facie case of disability discrimination, a plaintiff must show that he (1) has a ‘disability’ within the meaning of the ADA, (2) is a ‘qualified individual’ under the ADA, and (3) suffered an adverse employment action as a result of the disability. 42 U.S.C. § 12112(a). However, in order to be a qualified individual with a disability, a QUID, the person must be able to perform the essential functions of the position with or without accommodation. 42 U.S.C. § 12111(9)(B). The 8th Circuit has previously held that “[t]he ADA does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden” and that an employee’s subjective belief that he or she can perform the essential functions of the job is irrelevant. Alexander v. Northland Inn, 321 F.3d 723, 727 (8th Cir. 2003). The United States District Court for the District of Maryland has relied on Alexander to state that “there is [nothing supporting] the notion that an employer must question a medical provider’s judgment and independently divine whether an employee is truly able to work.”
Young v. UPS, Civil Action No. DKC 08-2586, 2011 U.S. Dist. LEXIS 88205, at *9 (D. Md. Aug. 9, 2011) Similarly, the District of Maryland has also affirmed that deferring to a doctor’s note is legitimate and lawful, even in light of a plaintiff attempting to waive their medical restrictions. EEOC v. Greystar Mgmt. Servs. L.P., Civil Action No. ELH-11-2789, 2013 U.S. Dist. LEXIS 177238, at *73 (D. Md. Dec. 18, 2013).
Therefore, employees should carefully work with their medical professionals to craft work restrictions for disabilities that carefully prescribe the limits of what the employee can do, since these are not waivable by the employee and may lead to a loss of QIWD status.