If you get fired because your health goes bad and you have to file for bankruptcy, you can still sue your employer over the firing. (Well, maybe.) But it doesn’t mean you’re going to win.
The ADA performs a number of laudatory functions, not the least of which is to protect disabled individuals from insidious discrimination by requiring employers to reasonably accommodate their disability. The law, however, cannot remedy every misfortune. It can only correct that which it prescribes to correct.
Wilson v. Dollar General Corporation, ___ F.3d ___, 2013 U.S. App. LEXIS 9929 (4th Cir., May 17, 2013). The perceptive reader will have already guessed from the quotation above that things went badly for the employee in this case. The plaintiff and appellant, Lamont Wilson, was, by all accounts, an excellent employee of the defendant and appellee, Dollar General. According to the court, Wilson was remarkable for his “industriousness, perseverance, and good nature, despite his physical limitation.” The physical limitation to which the court refers was an injury that had left Wilson permanently blind in his right eye. After about five months’ employment with Dollar General, Wilson developed a serious inflammatory condition in his left eye, which threatened to make him fully blind. Wilson sought treatment for the inflammation, but a side effect of the prescribed medication was blurred vision, which limited his ability to work.
Wilson had not worked for Dollar General long enough to qualify for leave under the Family and Medical Leave Act, but Dollar General provided him with six weeks’ medical leave, followed by two additional weeks of medical leave. During this time, Wilson continued to receive medical treatment. On the day that Wilson’s doctor cleared him to return to work, his blurred vision came back. Wilson telephoned Dollar General’s human resources officer, who granted Wilson an additional day of leave. The next day, Wilson’s condition worsened, and he was admitted to the emergency room, where he received additional treatment for his left eye. His vision problems, however, did not subside.
Immediately after his discharge from the emergency room, Wilson went to Dollar General and presented the HR officer with a note from the emergency room doctor, advising that Wilson could return to work in two days. The HR officer made it clear to Wilson that, if he did not return to work that day, as previously scheduled, he would be terminated. Wilson acknowledged that he could not return as scheduled and he was terminated. About a week, or week and a half, after his termination, Wilson began looking for other work, but he could not specifically state when his vision problems abated enough so that he could have returned to work at Dollar General. In any event, Wilson offered no evidence that an additional two days of leave would have been enough time for his vision to improve so that he could have returned to work.
About two months after his termination, Wilson filed a charge of discrimination with the Equal Employment Opportunity Commission. Two weeks later, Wilson filed a petition in bankruptcy, seeking relief under Chapter 13 of the Bankruptcy Code. In his bankruptcy pleadings, Wilson listed as one of his assets: “Potential Claim against Dollar General related to termination of Debtor’s employment, value, if any unknown.” Several months later, the bankruptcy court confirmed Wilson’s Chapter 13 plan of reorganization. At about this time, Wilson suffered another medical setback which required surgery to his left eye. The surgery left him blind for seven weeks, and required months of rest and recovery thereafter. About a year after Dollar General terminated Wilson, the EEOC issued a right to sue notice, and Wilson filed suit not long after, alleging that Dollar General had unlawfully discriminated against him by failing to provide a reasonable accommodation for his disability, resulting in his discharge, in violation of the Americans with Disabilities Act.
Dollar General sought summary judgment in its favor on two theories. Under the first theory, Dollar General argued that the district court lacked jurisdiction to hear the case because of Wilson’s bankruptcy. Under the second theory, Dollar General argued that Wilson’s claim lacked merit because Wilson had no evidence that an additional two days of leave would have accommodated his disability. The district court disagreed with the first theory, but agreed with the second one, and ruled in favor of Dollar General. Wilson appealed.
The bankruptcy issue presented a question that the Fourth Circuit Court of Appeals had never before addressed: does a Chapter 13 debtor in bankruptcy lose the ability to bring a lawsuit? The court had previously held that a Chapter 7 debtor did lose that ability but, because of some inherent differences between Chapter 7 and Chapter 13, concluded that a Chapter 13 debtor could still sue in his own behalf.
The court’s analysis began with a discussion of the concept of “standing.” Saying that a plaintiff has “standing” means, usually, that the plaintiff has suffered a real (as opposed to hypothetical) injury; that the injury is fairly traceable to the action of the defendant; and that it is likely that a decision in the plaintiff’s favor can redress the injury. If the plaintiff lacks standing, then the court lacks jurisdiction to hear and decide the case.
In Wilson’s case, Dollar General argued that Wilson’s bankruptcy deprived Wilson of standing and therefore deprived the court of jurisdiction. Understanding Dollar General’s argument – and why the court disagreed with it – requires a descent into some basic bankruptcy principles. The first principle is this: Filing a petition in bankruptcy creates a legal fiction known as the “bankruptcy estate.” The bankruptcy estate comprises a broad range of the debtor’s property: real property, personal property, tangible and intangible property. Included in this range are actual or prospective lawsuits of the debtor against others, where the claims arose before the debtor filed the bankruptcy petition. When the debtor files the petition – presto! – the debtor’s lawsuit becomes property of the bankruptcy estate.
The second bankruptcy principle is this: In a Chapter 7 bankruptcy, in which the debtor’s non-exempt assets are liquidated and the proceeds paid out to creditors, the Chapter 7 trustee takes possession of the bankruptcy estate during the liquidation process. In contrast, in a Chapter 13 bankruptcy, the debtor’s assets are not liquidated. Instead, for a period of several years a debtor’s disposable income is collected by a trustee and disbursed to creditors, pursuant to a court-approved payment plan. In a Chapter 13 bankruptcy, the debtor retains possession of the bankruptcy estate.In addition to his power to possess property, the bankruptcy code also expressly gives the Chapter 13 debtor the authority, exclusive of the trustee, the rights of a trustee to use, sell, or lease property of the bankruptcy estate in certain circumstances.
The third bankruptcy principle is this: The bankruptcy code does not say, one way or the other, whether a debtor can maintain a pre-petition, non-bankruptcy lawsuit. It does, however, say that the bankruptcy trustee generally has the “capacity to sue and be sued.”
From these principles, the court had previously concluded that a Chapter 7 debtor’s lawsuit could only be asserted through the Chapter 7 trustee. Essential to this decision was the bankruptcy principle that said that the Chapter 7 trustee takes possession of the Chapter 7 debtor’s bankruptcy estate. In the context of Chapter 13, however, the court had never “considered to what extent the Chapter 13 debtor — who, unlike the Chapter 7 debtor, retains possession of the bankruptcy estate — may also possess standing to assert a cause of action, either exclusive of, or concurrent with, the authority vested in the trustee.” Dollar General argued that the court should treat Chapter 7 and Chapter 13 debtors the same and hold that any bankruptcy filing would deprive a debtor of standing to bring a pre-bankruptcy claim.
So far, five other circuit courts of appeal have considered the question and all five have concluded that Chapter 13 debtors have standing to bring causes of action in their own name on behalf of the estate. The Fourth Circuit adopted the reasoning of its sister circuits and held that “a Chapter 13 debtor possesses standing — concurrent with that of the trustee — to maintain a non-bankruptcy cause of action on behalf of the estate.” The distinction between a Chapter 7 debtor, who cannot bring a suit in his own name, and a Chapter 13 debtor, who can, lies in the right under the bankruptcy code to possess the property of the estate. (The court never actually states how possession of the claim confers standing, but presumably possession of the claim means that the debtor – not the trustee—is the injured party with a right to seek redress.) Accordingly, in the Fourth Circuit, Chapter 13 debtors can pursue lawsuits against their employers that arise out of pre-bankruptcy claims; Chapter 7 debtors cannot. The Fourth Circuit affirmed the decision of the district court on this issue and held that Wilson had standing to bring his pre-bankruptcy ADA claim against Dollar General.
Unfortunately for Wilson, the Fourth Circuit also affirmed the district court’s decision on the merits of Wilson’s ADA claim. The ADA prohibits an employer from discriminating against a qualified individual on the basis of disability. Such unlawful discrimination can include the failure to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee. For purposes of the ADA, “reasonable accommodations” may include “job restructuring, part-time or modified work schedules,” and “permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment.” A “qualified individual” is “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.
Accordingly, in order for Wilson to make a case against Dollar General for failure to accommodate under the ADA, he would have to show:
- that he was an individual who had a disability within the meaning of the statute;
- that Dollar General had notice of his disability;
- that with reasonable accommodation he could perform the essential functions of the position; and
- that Dollar General refused to make such accommodations.
Dollar General did not dispute that Wilson had a disability within the meaning of the statute and that Dollar General was on notice of his disability. The dispute was whether Wilson satisfied the third element: that he was a qualified individual under the ADA, such that had he been given a reasonable accommodation, he could have performed the essential functions of the employment position.
In this analysis, Wilson’s final request for an additional two day leave was the reasonable accommodation under examination. The court assumed, without deciding, that a two day leave request was not unreasonable. The question remained, however, whether the two extra days of leave would have permitted Wilson to perform the essential functions of his position. If Wilson could not perform the essential functions, then he would not fit the definition of “qualified individual.” In this regard, the court said:
A reasonable accommodation request for prospective leave to alleviate an intermittent disability presents unique challenges for the employee. There is an inherent tension between the accommodation and the employee’s ability to later show he could have performed the essential functions of his position with such accommodation. This is in part because the accommodation itself is fleeting, and, thus, the inquiry is necessarily limited and retrospective. The employee must show that had he been granted leave, at the point at which he would have returned from leave, he could have performed the essential functions of his job.
The court noted, however, that evidence that the employee would have needed additional leave after the end of the requested leave was not relevant to this inquiry. The court found that the district court had improperly considered evidence of Wilson’s medical setback several months after his termination. That evidence, the Fourth Circuit held, was irrelevant to the question whether the requested two day leave would have enabled Wilson to perform the essential functions of the job.
Ultimately, the court held that, because Wilson had offered no evidence to show that two days of leave would have enabled him to perform the essential functions of the job, he had not shown that he was a qualified individual and therefore, he could not seek relief under the ADA. The Fourth Circuit affirmed the district court on this point.
As a final matter, Wilson had alleged that Dollar General had failed to engage in an interactive process to identify a reasonable accommodation. This part of Wilson’s claim comes from one of the regulations of the ADA, which requires an employer to “initiate an informal, interactive process with the individual with a disability in need of the accommodation.” The employer’s duty to engage in this process is triggered when the employee communicates that he has a disability and that he desires an accommodation. The interactive process is not an end in itself but a means for determining what reasonable accommodations are available to allow a disabled individual to perform the essential job functions of the position sought. Even if an employer’s duty to engage in the interactive process is triggered, the employer’s liability for failing to engage in that process may collapse if the employee cannot identify a reasonable accommodation that either would have been feasible or would have made it possible for the employee to perform his essential job functions.
In Wilson’s case, the court held again that Wilson’s failure to show that the two days of requested leave would have made it possible for him to perform the essential functions of his job also doomed his claim that Dollar General failed to engage in an interactive process to identify a reasonable accommodation. The court suggested that, had Wilson identified an accommodation that could have been discovered, this outcome might have been different; nevertheless, the court affirmed to district court’s granting summary judgment to the employer on this claim.