Alabama Worker’s ADA Suit Runs Out of Air: Federal Court Dismisses Failure to Accommodate and Retaliation Claims
The U.S. District Court for the Northern District of Alabama recently granted summary judgment to United States Steel Corporation, finding that the company did not deny Raymond Carr III, a former employee with chronic obstructive pulmonary disease (COPD), a reasonable accommodation or constructively discharge him for requesting an accommodation and filing a charge with the U.S. Equal Employment Opportunity Commission (EEOC).
U.S. Steel operates Fairfield Works, a steel-making facility in Fairfield, Alabama. Carr, who suffers from COPD, worked on the “hot side” of Fairfield Works for 21 years. In August 2015, U.S. Steel laid off Carr when the company closed down the hot side. Following his layoff, Carr worked as a contractor assigned to the “quench and tamper” area of Fairfield Works. In late March 2017, Carr started training to become an oiler-stamper at the pipe mill. That position involved “screwing caps on the threaded ends of pipes,” and placed him close to a varnish pool. Within 90 minutes of working in the position, Carr reported that the fumes from the varnish pool left him “dizzy, disoriented, and short of breath.” Carr spoke with the union safety coordinator about his breathing problems. He also told the on-site medical staff about his COPD. The medical center staff tested Carr’s breathing, and instructed him to follow up with his personal physician regarding any limitations related to his COPD before returning to work.
Carr had regularly scheduled biannual appointments with his pulmonary physician, but he experienced difficulty scheduling an interim appointment with his physician. Initially, Carr provided U.S. Steel with a summary of his last visit with his physician in February 2017. The company rejected the summary, and informed Carr that the company required current information about his limitations in order to assess his ability to work. U.S. Steel provided Carr with paperwork for him to complete with his physician, which the company would use to assess his entitlement to sickness and accident benefits. In mid-April 2017, after several unsuccessful attempts to contact his physician, Carr submitted his portion of the sickness and accident paperwork. Throughout April 2017, Carr kept in contact with the medical center and the union president, stated he did not wish to be placed on sickness and accident leave, and requested to be returned to work in an area away from fumes.
In early May 2017, Carr met with a nurse practitioner, who completed the paperwork and noted that Carr’s “subjective symptoms prevent[ed] him from working around chemicals, fumes, dusts, and vapors.” On May 11, 2017, Carr met with U.S. Steel managers and his union representatives to discuss potential accommodations. Carr and the union president inquired about multiple positions in various areas, and proposed that Carr could wear a respiratory dust mask. U.S. Steel followed up regarding the positions discussed, and found that no permanent position existed in an area free from exposure to chemicals and fumes. In June 2017, U.S. Steel informed Carr that there were no positions for him in the pipe mill and that he could “continue drawing sickness and accident pay or retire.” Carr continued receiving sickness and accident pay for approximately four months, and retired from U.S. Steel on September 30, 2017, so that he could go work elsewhere.
Carr filed a charge of discrimination with the EEOC in July 2017, alleging that U.S. Steel discriminated against him by not providing him a position in the pipe mill. The EEOC “determined that [Carr’s] rights were violated under the Americans with Disabilities Act of 1990, as amended, in that he was denied a reasonable accommodation and terminated because of his disability.” Thereafter, the EEOC issued Carr a notice of right to sue, and he filed a lawsuit against U.S. Steel, alleging that the company discriminated against him by denying him a reasonable accommodation and effectively terminating his employment.
ADA Discrimination Claim
In considering whether Carr met the first prong of his Americans with Disabilities Act (ADA) discrimination claim, namely demonstrating that he had a disability, the court rejected Carr’s argument that his COPD “substantially limit[ed] his ability to work and breathe.” In so holding, the court noted that “Carr’s COPD prevented him from working around chemicals or fumes at Fairfield Works, which is only a narrow range of jobs.” The court was further persuaded by Carr’s post-retirement employment at several contractor jobs, which indicated he was capable of working. Next, the court rejected Carr’s argument that he was substantially limited in the major life activity of breathing. In so holding, the court relied on Carr’s medical records, which indicated his condition was “stable” and that he “experienced intermittent episodes of moderate breathing difficulties and bronchitis exacerbated by exposure to particulates that he successfully treated with an inhaler.” The court also recognized that “Carr had major difficulties breathing around chemicals and fumes.” However, the court concluded that “‘breathing around chemicals and fumes’ is not a major life activity under the ADA; just ‘breathing’ is.”
The court further held that Carr did not demonstrate he was a “qualified individual with a disability,” the second prong of his ADA claim. In so holding, the court noted that the parties agreed that Carr could not perform the essential functions of any position in the pipe mill for which he was qualified because those positions exposed workers to chemicals, fumes, vapors, and smoke. The court rejected Carr’s argument that there were numerous jobs available that did not expose workers to fumes or vapors. According to the court, there was neither evidence of vacancies in those positions nor evidence “as to whether Carr, with or without reasonable accommodation, could perform the essential functions of those jobs.” In fact, the court found that to the extent Carr was referring to positions in the finishing and shipping area of the pipe mill, “Carr could not work in the finishing and shipping area where chemicals and fumes exacerbated his COPD in the first place.” The court similarly rejected Carr’s argument that U.S. Steel could have reassigned him to a cleaner position, noting that the company hired outside contractors for all janitorial positions. The court also noted that Carr did not take “the required test to qualify for a maintenance position,” and there is no evidence that “points to any area in which Carr could work away from chemicals, fumes, vapors, and dust” in this capacity. Next, the court rejected Carr’s argument that he could have worked as a railcar loader, noting that U.S. Steel had no open vacancies and railcar loaders were exposed to fumes and vapors. The court rejected Carr’s argument that he could have performed the essential functions of the oiler-stamper position with the accommodation of an operational fan, noting that there was “no evidence to show whether the fan … would have successfully removed noxious fumes from Carr’s workspace.” The court similarly rejected Carr’s final accommodation argument that he could have performed certain jobs with the reasonable accommodation of a respiratory dust mask, noting that his own physician testified a mask “would ‘not provide much protection’ from chemicals or fumes.’”
The court then turned to Carr’s retaliation claim. First, the court rejected U.S. Steel’s argument that Carr failed to exhaust the administrative remedies for his retaliation claim, finding that his retaliation claim grew out of his original EEOC charge, which alleged that U.S. Steel failed to accommodate him. The court noted “there is only a small difference between failing to accommodate an employee’s disability and terminating an employee for requesting a reasonable accommodation.” After finding that Carr did not need to file a separate EEOC charge for his retaliation claim, the court concluded that “the record lacks evidence of any reasonable accommodation that could have permitted Carr to return to work.” In so holding, the court noted that “this is not a case of an employer ‘deliberately mak[ing] an employee’s working conditions intolerable,’” but rather “a case of an employee’s health making it impossible for him to work.” The court was further persuaded by U.S. Steel’s decision to provide Carr with sickness and accident benefits, and Carr’s admission that he voluntarily resigned to “make better money.”
Reflecting on this decision, employers may want to be aware that there remain factual situations in which an individual with a diagnosed condition cannot meet the “qualified individual with a disability” threshold, even under the more lenient ADA Amendments Act standard. This case also highlights the value of securing underlying medical records and accompanying testimony of medical providers, which may undermine the effectiveness of accommodations proposed by an employee.