A Capehart Scatchard Blog

Law Firm Properly Terminated Support Services Assistant with Permanent Lifting Restrictions of No More than 20 Pounds

By on August 24, 2015 in FMLA with 0 Comments

Charlesetta Jennings worked as a Support Services Assistant (SSA) at Womble Carlyle, a 500 lawyer firm based in North Carolina. Her job required performing a wide variety of tasks, including managing supplies, delivering or picking up packages, copying and scanning documents, setting up conference rooms, filing for receptionists, operating copy and scanning machines, and binding documents.

Jennings took FMLA leave in 2008 when she was diagnosed with breast cancer and intermittent leave during periods of chemotherapy.  In November 2009, she noticed tenderness and swelling in her left arm, a condition diagnosed as lymphedema related to the breast cancer treatment.  Jennings continued to work but devised ways to avoid doing heavy lifting such as lifting packages or boxes of paper.

In June 2010, Jennings suffered a work injury occasioned by heavy lifting.  She was working alone at the Liberty Plaza location of the office and had to tape up and move about 14 boxes weighing 32 to 38 pounds in addition to moving some paper boxes weighing 50 pounds.  Her doctor then restricted her to lifting no more than 10 pounds.

The law firm met with Jennings and broke down the duties which Jennings could no longer perform.  There were two or three times more duties that she could not perform than the ones she could perform within the 10 pound restriction.  She could still copy and scan documents and deliver light weight envelopes as well as fill in for receptionists on breaks.   The law firm continued to accommodate her for six months on light duty because it had a large scanning project going on.  After the scanning project ended, the law firm could only keep Jennings busy 20% of the time.

On February 1, 2011 Jennings provided an updated doctor’s note allowing her to lift permanently no more than 20 pounds.  However, there were still many tasks which Jennings could not perform with a 20 pound restriction.  The law firm therefore placed her on a medical leave of absence effective February 9, 2011 and when the leave ran out, the firm terminated her employment in August 2011.

Jennings sued under the ADA and contended that Womble Carlyle failed to make reasonable accommodation.  The EEOC brought the suit on behalf of Jennings.  The District Court dismissed the law suit, holding that even with reasonable accommodation, Jennings could not lift more than 20 pounds.  The Court of Appeals for the Fourth Circuit affirmed.

The Court of Appeals rejected the EEOC’s argument that Womble Carlyle could not consider job tasks that Jennings had not performed for quite some time. It said, “That an employee may typically be assigned to only certain tasks of a multifaceted job ‘does not necessarily mean that those tasks to which she was not assigned are not essential.’” (citations omitted). The Court pointed out that many of the tasks of an SSA required lifting substantially more than 20 pounds.  When Jennings had tried to life more than 20 pounds, she had in fact injured herself in 2010.

To be sure, Jennings was able to devise ways to do some tasks, but she remained unable to do many more.  She could not work alone at Liberty Plaza or Winston Tower or on Saturdays, assist with office moves, deliver or pick up packages from offsite or among any of the three Womble Carlyle buildings, set up conference rooms, or any of a number of tasks.  Thus, even though Jennings’ work-around methods enabled her to perform a small subset of the job’s responsibilities, the ability to lift over 20 pounds was inextricably tied to the vast majority of them.

The Court concluded that Jennings was not a qualified individual under the ADA because she could not perform the essential job functions, even with accommodations.  The Court also said it would be unreasonable to require the law firm to reallocate essential functions and noted that the ADA does not require such reallocation. See 29 C.F.R. pt. 1630 app. 1630.2.(o).

This case is helpful for practitioners because it focuses on a fairly common situation where an employer temporarily accommodates an employee for a period of time until permanent restrictions are issued.  The mere fact that the employer temporarily made accommodations does not require the employer to permanently make those accommodations if the employee cannot perform the essential functions of the job with or without reasonable accommodation.  Nor must the employer ignore other essential functions of the job that the employee has not performed in quite some time. The case may be found at EEOC v. Womble Carlyle Sandridge & Rice, LLP, 31 AD Cases 1349 (4th Cir. 2015).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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