Minneapolis Partner Ellen Brinkman, Senior Counsel Erin Conlin, and paralegal Elissa Becker prevailed in obtaining summary judgment on behalf of a major airline in a disability discrimination and retaliation case in the United States District Court, Eastern District of North Dakota.
In September 2019, the plaintiff applied for a part-time ramp agent position with the airline’s operation in Devils Lake, North Dakota. The plaintiff is deaf and relies heavily on lip-reading. Even with hearing aids, if he cannot see a person’s lips, the plaintiff cannot understand what a person is saying. In his job application, the plaintiff disclosed that he was deaf. The plaintiff stated that the only accommodation that he needed was closed captioning for computer-based training. The airline provided the plaintiff with scripts to enable him to complete the computer-based training. A few months later, the airline’s employee relations department followed up with the plaintiff to discuss any accommodations he may need to perform the essential functions of the job. Due to safety concerns, the airline asked the plaintiff to provide additional medical information regarding his ability to perform the essential functions of his job, which the parties exchanged.
As the plaintiff continued to work as a ramp agent, his managers noted multiple safety issues where the plaintiff was unable to communicate with others while working on the ramp. The plaintiff’s doctor provided medical information stating that to allow the plaintiff to perform the essential functions of the position, the airline should allow for communication to take place in a well-lit, reasonably quiet setting. Following these events and upon receipt of this information, the airline had concerns that having the plaintiff continue to work in the ramp agent position posed significant safety concerns to himself and other employees. The airline placed the plaintiff on paid administrative leave to allow the plaintiff to look for another position within the company. The plaintiff declined to do so. The airline then offered the plaintiff a comparable gate agent position, and the plaintiff declined the position. The airline continued to work with the plaintiff and his medical providers for a few months to determine whether he could perform the essential functions of the ramp agent position safely. The plaintiff was eventually terminated after he declined to look for a new position and the airline continued to have safety concerns about his ability to perform the essential functions of the ramp agent position.
The plaintiff brought claims under Title VII for disability discrimination, failure to accommodate, and retaliation, as well as corresponding claims under the North Dakota Human Rights Act. On January 29, 2024, the court dismissed all claims. Regarding the discrimination claims, the court held that the airline prevailed under the “direct threat” affirmative defense, which provides that an otherwise qualified disabled employee who poses a “direct threat” to the health or safety of others does not fall within the discrimination protections of the ADA. The court held that the airline performed an individualized assessment of the plaintiff’s ability to perform the essential functions of the ramp agent position. Additionally, the airline succeeded in proving that the risk was continuous and definite, and the potential for harm was significant and imminent.
The court held that the failure to accommodate claims failed because the airline did reasonably accommodate the plaintiff by offering him a comparable gate agent position. Regarding the retaliation claims, the court held that the airline did not retaliate by asking the plaintiff to provide additional information from his medical providers. The court held that such requests were not adverse actions and stated that “Employers are allowed to make medical inquiries of employees, as long as those inquiries are job-related and consistent with business necessity.” The court also held that there was no causal connection established because the airline’s offering the plaintiff a comparable position acted as a “break” between the protected activity and the plaintiff’s termination. Additionally, the court held that the airline’s safety concerns were a legitimate, non-discriminatory reason for the plaintiff’s termination.