Third Circuit Ruling Regarding ADA, FMLA

From the Third Circuit Court of Appeals, we have a reminder that employees who request reasonable accommodations are not immune from disciplinary action, including termination. Stanley Kieffer was an employee of CPR LLC from 2003 to 2008, and again from 2010 to 2013. He began working at CPR LLC’s sister company, CPR Inc., in January 2014, and left in June of that same year. While he was employed at CPR LLC, Kieffer worked supervising disaster cleaning projects, and it was in this capacity that he injured his shoulder. From there, his troubles only continued.

Following his injury, Mr. Kieffer applied for worker’s compensation, which he received. He then requested a driver, as he could not drive on the job. This request was denied, prompting Mr. Kieffer to go out on leave, starting in September 2013, in order to give his shoulder time to heal. He informed his employer in mid-October that he would be returning on November 13, but then he showed up, unannounced, on November 4. Upon his unannounced early return, CPR LLC made the decision to terminate his employment.

Following his termination, Mr. Kieffer filed a charge of discrimination with the EEOC. He also got a new job working at CPR Inc., CPR LLC’s sister company. Mr. Kieffer, who lived in Pennsylvania, had difficulty with the long commute to Northern New Jersey, where his new job was located. His new manager offered to pay to have him relocated to ease the burden of the commute. The Opinion released by the Third Circuit states, “Kieffer claims that, after Fingerman [The Owner of CPR LLC] found out that Kieffer had filed a Charge of Discrimination, Keller [Kieffer’s new manager] refused to pay for the move. Kieffer claims that this decision amounted to a constructive discharge, causing him to quit CPR Inc. in June 2014.”

After the 180-day period had passed since Mr. Kieffer had filed the EEOC charge, he filed suit against CPR LLC and CPR Inc. stating numerous claims, including alleged violations of the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). CPR LLC and CPR Inc. moved for summary judgment, which the District Court granted. Kieffer appealed to the Third Circuit, but they, too, found in favor of CPR LLC and CPR Inc.

The Third Circuit found that Mr. Kieffer’s case failed on several points. First, his FMLA claim does not hold up because CPR LLC and CPR Inc. were found not to be subject to the FMLA, because neither company employed 50 or more employees. While Keiffer alleged that their employees should be aggregated, the Third Circuit held otherwise. While both entities were owned by the same person, they did not have common management, they did not have interrelation between operations, and they did not have a centralized control of labor relations.  Consequently, they would not be deemed to be a single employer for purposes of establishing the numerosity requirement.

Next Mr. Keiffer’s ADA claims failed because he could not establish, inter alia, that he could perform the essential functions of his job. During the course of the case Mr. Kieffer contradicted himself. “Kieffer first testified that physical labor was part of his daily work.”  Mr. Keiffer could not perform physical labor, with or without a reasonable accommodation, and would therefore not be considered to be a “qualified individual” who is entitled to the protections of the ADA. Later, the Court noted, Mr. Keiffer asserted that it was his choice whether or not he participated in physical labor.  If true, Mr. Keiffer’s testimony would render him “qualified” and therefore protected.  Importantly, CPR LLC was able to provide a job description from Mr. Kieffer’s Employment Agreement and a job description that was posted on Craigslist, both listing that physical labor was a part of the job.

But what this decision ultimately came down to was the accommodation of leave. “The District Court dismissed this claim on the basis that the leave requested was indefinite and that other circuits have found that indefinite leave is not a reasonable accommodation,” the Opinion stated.  Most important to the Third Circuit’s decision was the fact that Mr. Keiffer’s leave request was vague, seeking “a few weeks or a few months.”  Such a request, the Court held, was insufficient to allow the employer to determine whether Mr. Keiffer sought “a short period of definite leave [that] would enable [him] to perform his essential job functions in the near future.”  The Third Circuit’s decision is in line with similar decisions from other federal appeals courts, which have noted that it is the purpose of the FMLA to provide long-duration leave.  The ADA, by contrast, is designed to allow short periods of leave—measured in days and weeks—to permit an employee to recover such that he can again perform the essential functions of his job.

Finally, Mr. Kieffer raised retaliation claims under the ADA, FMLA, and Pennsylvania worker’s compensation law. He alleged that he had been terminated in retaliation for requesting accommodation and utilizing the reasonable accommodation of taking leave. But the Court found that the timeline did not support this claim. “Kieffer requested leave two months before his termination. We have held that over two months between protected activity and adverse employment activity—without more—is insufficient to prove causation.”