The following is a portion of a successful opposition to a motion for summary judgment in a disability discrimination/failure to accommodate case that was filed in the United States District Court, Northern District.  Stuart Goldware and I successfully tried this case last spring.  This brief addressed the issue of walking as a major life activity and the obligation to provide reasonable accommodation and engage in the interactive process.  Submitted by Michelle Ferber, Frankel & Goldware, LLP





            Plaintiff has alleged four separate and distinct claims for relief against the Hospital.  The first and second allege disability discrimination in violation of the California Fair Employment and Housing Act (“FEHA”) and the Americans with Disabilities Act (“ADA”), respectively.  The third and fourth allege the failure to provide reasonable accommodation in violation of the FEHA and the ADA.



            The Hospital in its moving papers, at page 4, footnote 2, mistakenly claims that the legal analysis is exactly the same under both the ADA and the FEHA.  In doing so, the Hospital completely ignores the language set forth in the FEHA for purposes of determining whether an individual is disabled.  Under the ADA, a disability is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of such individuals.”  (42 U.S.C. § 12102(2)).  The FEHA defines disability as a physical disability which “limits” an individuals ability to participate in major life activities.  (Cal. Gov. Code § 12926(k)(1)(B).)

            Accordingly, the standard that Plaintiff must meet to establish her prima facie case that she is disabled is more easily met under the FEHA than it is under the ADA.  The Hospital fails to address this significant difference.  Plaintiff’s FEHA claim for failure to accommodate has been established through a prima facie case, and the motion for summary judgment must be denied.  Plaintiff submits that the facts she intends to establish and prove at the time of trial demonstrate that she is in fact substantially limited in the major life activity of walking, let alone merely limited in the major area of walking as required by the FEHA.

            The Hospital admits that walking is a major life activity.  However, the Hospital disputes that the amputation of Plaintiff’s left foot has caused her an injury which “substantially limits” her ability to walk.  Walking, as a major life activity, was addressed in Canis v. Coca Cola Enterprises, Inc. (D. Rhode Island, 1999) 49 F.Supp.2d 73, 78:

Substantially limits as defined by the EEOC regulations means:   (i) unable to perform a major life activity that the average person in a general population can perform; or (ii) significantly restricted as to the condition, manner, or duration under which an individual can perform a particular life activity as compared to the condition, manner, or duration under which the average person in a general population can perform that same major life activity.  29 C.F.R. § 1630.2(j).

            In Canis the plaintiff could not walk more than four hours per day because of a foot injury.  The court found that as a result, the plaintiff could not walk as well as the average person in the general population and that this was a permanent restriction on her ability to walk.  Accordingly, sufficient evidence for the question of whether the plaintiff was substantially limited in the major life activity of walking to be submitted to a jury.  (Canis v. Coca Cola Enterprises, Inc., supra, 49 F.Supp.2d 73, 79).

            In reaching its decision, the Canis court took guidance from recent Supreme Court cases, including Albertsons, Inc. v. Kirkingburg (1999) 527 U.S. 555; Sutton v. United Airlines, Inc. (1999) 527 U.S. 471; and Murphy v. United Parcel Service, Inc. (1999) 527 U.S. 516.  It found that all of those cases distinguishable because the plaintiffs in those cases had “correctable maladies.”  In stark contrast, the plaintiff in Canis could not walk more than four hours a day, while most people can endure more than that, and many people do in fact walk more than four hours every day.  Additionally, the plaintiff in Canis could not solve her problem by holding a handrail, by slowing down, by enduring mild pain or anything else, as could some of the other plaintiffs in the aforementioned recent cases decided by the Supreme Court or in the case relied on by the Hospital of Kelly v. Drexel University (3d Cir., 1996) 94 F.3d 102, 106-107.

            Like the plaintiff in Canis, Plaintiff suffers a permanent, significant restriction on her ability to walk.  Unlike the plaintiff in Kelly, Plaintiff requires a special device, her prosthesis, to assist her in walking.  The Hospital’s reliance on Kelly case is surprising, and, inexplicably, the Hospital’s written argument ignores a portion of that decision directly relevant to the instant case.  The Hospital notes two examples designated by the EEOC Compliance Manual as related to walking.  The identical two examples were cited in the Kelly opinion at p. 106.  The Hospital then asserts that like the plaintiff in Kelly, Plaintiff’s walking impairment falls somewhere between the two extreme examples.  However, the Hospital conveniently fails to acknowledge the very next paragraph of the Kelly decision where the court refers to the EEOC regulations:



An individual who, because of an impairment, can only walk for very brief periods of time would be substantially limited in the major life activity of walking.  An individual who uses artificial legs would likewise be substantially limited in the major life activity of walking because the individual is unable to walk without the aid of prosthetic devices.  (Kelly v. Drexel University, supra, 94 F.3d 102, 106 and 29 C.F.R. § 1630.2(j).)

            Plaintiff has a partial foot prosthesis, and her walking requires the aid of this device.  Plaintiff can only walk for very brief periods of time.  Thus, the Hospital’s own legal authority supports the proposition that Plaintiff has established a prima facie case that she is disabled within the meaning of the ADA.  As such, she has met the less restrictive standard of showing that she is “limited” in the major life activity of walking as required by the FEHA. 

The cases cited by the Hospital in an effort to demonstrate that plaintiffs allegedly similar to Plaintiff have been previously been found to be not “substantially limited” in the major life activity of walking are easily distinguishable.  In Ingles v. Neiman Marcus (S.D. Texas, 1997) 974 F.Supp. 996, the plaintiff was not required to use a handicapped parking permit, and the plaintiff parked in the regular employee parking lot that was further from the store than the customer parking area.  He lived in an apartment on the third floor that required him to climb two flights of hard-surfaced stairs daily, and he played an organ regularly at church that typically involved depressing 32 pedals with his feet.  Plaintiff has and uses a handicapped parking permit and has been required to forego numerous physical activities because of her disability.  (Plaintiff declaration, ¶ 5.)  In Howell v. Sam’s Club (E.D. PA., 1977) 959 F.Supp. 260,[1] the plaintiff did not require any special devices to assist him in walking.  To the contrary, he was also able to walk 20 to 22 miles every day without any aid such as a cane or crutches.  The case of Monroe v. Cortland County, New York (N.D.N.Y., 1999) 37 F.Supp. 2d 546, is distinguishable in that the court simply found that the employee in that case failed to show that the physical impairment substantially limited any major life activity at the time of the alleged discrimination.  Monroe rested on the court’s conclusion that the substantial limitation was not suffered by the plaintiff at the time of the alleged discrimination and on the specific failure of the plaintiff to allege certain facts in an amended disability discrimination complaint.  And Kelly v. Drexel University, supra, 94 F.2d 102 is distinguishable because the plaintiff was not required to use any special devices like a cane or crutches and because of the court’s specific recognition in that case that an individual who uses artificial prosthetic devices would be substantially limited in the major life activity of walking. 

            Here, Plaintiff is limited in her walking ability to less than a mile a day and cannot do so without the aid of her prosthetic device.  Plaintiff wears her prosthesis and stills walks with a limp, and experiences difficulty keeping her balance if she is not using the aid of her prosthesis.  Plaintiff also experiences moderate pain when walking even short distances, and suffers severe pain when walking longer distances.  Plaintiff cannot even garden.  Based on the extent of Plaintiff’s limitations, as supported by both her own testimony and the findings of her doctors (including the doctor employed by the Hospital) Plaintiff has established at the very least, that genuine issues of material fact exist which must be determined by the trier of fact as to whether she is disabled within the meaning of the ADA and the FEHA.  Plaintiff has met her burden of proof on this issue, has established a prima facie case that she is in fact disabled within the meaning of both laws and, therefore, the Hospital’s motion must be denied.



            Under both the ADA and the FEHA, it is unlawful for an employer to fail to make reasonable accommodation for a disabled employee, and an employer must make reasonable accommodations to the disability of an individual unless the employer can demonstrate that doing so would impose an undue hardship.  (Cal.Gov.Code § 12940; Sargent v. Litton Systems, Inc. (N.D.Cal., 1994) 841 F.Supp. 956; 42 U.S.C. § 12112(b)(5)(A).)  As noted by the court in Nunes v. Wal Mart Stores, Inc. (9th Cir., 1999) 164 F.3d 1243, 1247, “determining whether a proposed accommodation . . . is reasonable, including whether it imposes an undue hardship on the employer, requires a fact-specific, individualized inquiry . . . In the summary judgment context, a court should weigh the risks and alternatives, including possible hardships to the employer, to determine whether a genuine issue of material fact exists as to the reasonableness of the accommodation.”  While an employee is required to request accommodation, an employee is not required to use any “magic phrases” and an individual “may use plain English and need not mention the ADA or use the phrase reasonable accommodation.”  (Smith v. Midland Brake, Inc. (10th Cir., 1999) 180 F.3d 1154.)  Once an employee gives this notice, the employer’s responsibilities are triggered, and both the employee and the employer have an obligation to engage in an interactive process to determine if a reasonable accommodation can be found for an otherwise qualified disabled employee.  (Id.)

            Contrary to the assertions of the Hospital, Plaintiff properly put the Hospital on notice of her disability and of her requirement for accommodation.  In early April, 1996, when Plaintiff began experiencing pain and swelling in her right ankle as a result of the increased walking in her new position, Plaintiff was immediately examined by a physician.  The physician then timely informed the Hospital in April, 1996, that Plaintiff’s walking needed to be limited to one-sixteenth of a mile per hour and that Plaintiff would be required to use a cane to walk.  The Hospital’s response to this notification was not one of accommodation but of removing her from the schedule until May 16, 1996. 

Thereafter, on April 25, 1996, again in a timely manner, Plaintiff’s physician wrote to the Hospital requesting specific accommodation for Plaintiff’s permanent disability.  Again the response was not one of accommodation but of advising Plaintiff that she could not return to work until she was able to perform full duty.  No discussion or investigation was apparently made by the Hospital at any point in time regarding alternatives to accommodate Plaintiff’s disability.  In fact, Plaintiff was told that she could not use a cane.  On or about May 17, 1996, the Hospital advised Plaintiff that she could not return to work for at least 90 days while the workers’ compensation investigation of her ankle injury was pending.  The Hospital advised Plaintiff that the Hospital could not even initiate the process of exploring accommodation until that workers’ compensation investigation was complete.  Plaintiff and her union (with whom she had filed a grievance) requested a job analysis for Plaintiff’s position to aid in determining a reasonable accommodation.  The Hospital took over six months to obtain this job analysis, and when it was finally received, the job description was based on that of a staff nurse, not of a crisis nurse, a position that had very different duties. 

            On or about June 13, 1996, Plaintiff was advised that she could return to work; however, no accommodation was offered or made by the Hospital, despite the fact that Plaintiff, Plaintiff’s doctors, and Plaintiff’s union had consistently and repeatedly apprised the Hospital of Plaintiff’s condition and of her need for accommodation.  No accommodation was offered despite the fact that Plaintiff, Plaintiff’s doctors, and Plaintiff’s union had consistently and repeatedly advised the Hospital of Plaintiff’s condition and of her need for accommodation.  Thus, the Hospital’s argument at this time that no accommodation was provided because Plaintiff “failed to engage in the interactive process in good faith” is belied by the true facts of this case.

            To the contrary, even after her return to work on or about June 13, 1996, Plaintiff continued to engage in the interactive process by requesting reasonable accommodations.  These accommodations included a security cart to shuttle her back and forth between the buildings and/or use of a cane.  Both requests were denied by the Hospital.  The Hospital continued to insist as late as July, 1996, that Plaintiff did not have a permanent disability.  Finally, over one year later, in June, 1997, the Hospital finally agreed to provide a security cart to transport Plaintiff between the emergency room and the mental health unit, thereby finally accommodating her disability.

The delay of the Hospital of approximately fourteen months in accommodating Plaintiff is inexcusable and in violation of the ADA and FEHA.[2]  In James v. Frank (S.D. Ohio, 1991) 772 F.Supp.984, the court held that a delay of seven months in providing a disabled employee with an appropriate chair with arms and wheels was not justifiable and was simply too long.  The court found that providing the simple act of a new chair was not an undue burden on the employer.  As is here, it is not an undue burden to require an entity such as a hospital to provide a disabled employee such as Plaintiff with the use of a cart to transport her between the two buildings, especially when the Hospital was already in the possession of the cart. 

            A delay of fourteen months in allowing a disabled employee the use of a device of which the employer was already in possession of is wholly inexcusable.  This is especially true in light of the fact that throughout this entire period, the Hospital continued to deny that Plaintiff was disabled and continued to deny that she was in need of any accommodation whatsoever.  This is not a case (such as Hartsfield v. Miami-Dade County (S.D. Fla., 2000) 90 F.Supp.2d 1363, relied on by the Hospital in its moving papers) where the employer was trying to make reasonable accommodation and through the loss of paperwork, delay in delivery or shipment, the necessary items for accommodation were somehow delayed.  The Hospital had the immediate ability to make the accommodation.

            The Hospital wants to have it both ways.  On the one hand, the Hospital argues that it did accommodate Plaintiff by finally providing her with use of the cart and driver and that the delay between the request for accommodation and the time that the cart and driver were provided was reasonable.  On the other hand, the Hospital claims it was not “required” to provide the cart and driver, that it did so only in response to the grievance filed by Plaintiff with her union and that this “good deed” should not be held against the Hospital.  If this argument were followed to its logical conclusion, then the Hospital’s position appears to be that it is not required to provide any accommodation whatsoever to Plaintiff.  To the contrary, the material facts as set forth in this motion and as supported by all of the evidence submitted herewith unequivocally establish that Plaintiff was disabled and in need of accommodation in order to perform the essential functions of her job.  The accommodation in the form of the cart and driver existed from the very beginning and it is the Hospital and the Hospital alone that bears the responsibility for the fourteen-month delay in providing Plaintiff with this accommodation.

[1] The Hospital incorrectly states that the plaintiff in Howell walked with a cane.  However in several places, the Howell court noted that the plaintiff “walked with a limp, but did not need a cane” and “as was the case with Howell when he worked at Sam’s Club, Kelly did not require any special devices like a cane or crutches to aid him in walking.”  (Howell v. Sam’s Club, supra, 959 F.Supp. 260, 265.)

[2] The Hospital inexplicably argues that there was “only” a five month delay during which time the Hospital considered plaintiff’s request for accommodation.  To the contrary, the facts establish that Plaintiff first made her request for accommodation in April, 1996, and she was not accommodated for her disability until June of 1997, a delay of fourteen months.