July 25, 2014
As Sam Cooke sang, it’s “Summertime, and the livin' is easy”. With that in mind, The Bullard Edge would prefer to reminisce about a favorite case from the past, rather than dissect another questionable EEOC action or wade into the competing Affordable Care Act decisions (compare this with that).
Therefore, without further ado, we present The Case of The Sketchy Plaintiff. We anticipate that will be a recurring feature.
In the Autumn of 1998 I was defending Vandelay Industries in an ADA lawsuit. The plaintiff, who I will call Ms. Dixon, alleged that Vandelay transferred her between departments because she had tendonitis. There was no termination or failure to accommodate claim.
Vandelay readily admitted to the transfer. Ms. Dixon had been in a customer service role where she worked alone – or, should I say, was unsupervised while on the clock. In this role Vandelay expected her to interact with customers as needed (infrequent) and tend to record processing duties (mostly filing and processing orders). Instead of this, her manager observed her reading, watching television, and otherwise not tending to her duties. Vandelay transferred Ms. Dixon to another department, with direct supervision, and required her to work. This triggered a lawsuit.
The discovery process was a mixed bag. Ms. Dixon had a 20-pound lifting restriction; Vandelay knew that; the customer service role occasionally required lifting more than that; Vandelay actively encouraged all employees to seek assistance with lifting. Unfortunately, Vandelay had little documentation of its efforts to prod Ms. Dixon into doing her job.
When I met Ms. Dixon moments before beginning her deposition I learned two things. She presented as a frail person and she seemed exceedingly pleasant. Jurors love those kinds of plaintiffs. The first several hours of deposition were unremarkable. Ms. Dixon told me about her job and her excellent performance. She also shared with me the details of the daily debilitating pain from tendonitis. She said she could barely drive (too difficult to grip the steering wheel), brush her teeth, or take photographs (one of her hobbies). I got the sense that Ms. Dixon was a true believer in her own misperceptions.
The deposition was a bit frustrating. Not only was Ms. Dixon failing to acknowledge her performance issues, but she also seemed distracted after the lunch break. She had a pad of paper in front of her and looked down at it repeatedly. She also occasionally made marks. Slowly it dawned on me that she might be drawing. Not able to see it well, I asked if I could see it. She obliged. It was a 3x3 pencil sketch of a tree with what appeared to be thousands of mini pencil marks. I said something to this effect.
Me: “Ms. Dixon, this is a wonderful sketch. I wish I could draw like that.”
She: “Thank you.”
Me: “Do you enjoy drawing?”
She: “I do. It is so relaxing.”
Me: “Well, this is remarkable. Such amazing detail.”
She: “Thanks. It really isn’t much. Usually my sketches are larger.”
Me: “I bet they would be breathtaking.”
She: “If you want, I can show you some. They are in my trunk.”
Me: “Absolutely. Thank you.”
With that, we took a break while Ms. Dixon retrieved a huge sketchbook from her car. The pictures were fabulous – meticulous pencil sketches of nature scenes. I complimented them with absolute honesty and she shared her artistic process with me: thousands of exquisite short pencil strokes.
I immediately conveyed a verbal document request to her attorney. Several weeks later I filed a motion for summary judgment. I argued to the Court that Ms. Dixon was not an individual with a disability and lacked standing to sue Vandelay for disability discrimination. Not surprisingly, the Court agreed.
Law: This case came before the ADA Amendments Act, which expanded the definition of disability. Ms. Dixon likely would have met the ADAAA’s expanded definition. As a result, to win that case I would have had to prove that Vandelay had not taken adverse action because of disability (it did not).
Employers: Despite my certitude that it was innocent, as noted above Vandelay had little documentary proof of its efforts to prod Ms. Dixon into doing her job. At trial this would be an issue. We would rely on testimony. While Vandelay had solid witnesses, Ms. Dixon impressed me as very likeable. The lesson here is that it is important to document performance counseling.
Lawyers: Ms. Dixon’s sketching during the deposition was a gift. Fortunately, I was not so beholden to my deposition outline that I missed seeing what was right before me. Lawyers need to prepare well, and be prepared for anything. Remember, sometimes flattery gets you everywhere.
I think I hear the Oregon surf calling me. Until next time, best regards.
The Bullard Edge
Michael G. McClory joined Bullard Law in 1997. He likes talking about employment law, debating it, proposing revisions to it and even complaining about it. Perhaps so they could get some work done, his colleagues at Bullard Law suggested that he start a blog about employment law issues (broaden the conversation). And that is how this blog came to be.
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