For seven years, Plaintiff Strother Wolfe (“Wolfe”) worked as a mechanic for the Postal Service in Birmingham, Alabama. Wolfe has Attention Deficit Hyperactivity Disorder (ADHD), a condition that is mitigated through the use of prescription medication. Wolfe's ADHD does not affect his day-to-day life unless he fails to take his medication as prescribed. During the course of his employment, Wolfe had seven disciplinary actions taken against him, largely because he was absent from his work area, or he had unscheduled absences.
In 2003, Wolfe was leaning back in a chair that subsequently broke as a result of this behavior. Wolfe’s supervisor suggested suspending Wolfe for seven days. In challenging this suspension Wolfe informed his supervisor of his ADHD. Due to USPS’ progressive discipline policy - which includes a letter of written warning, seven day suspension, a fourteen day suspension, and then termination - Wolfe was only given a written warning on this occasion. Nevertheless, Wolfe claims that his supervisors created a hostile work environment after he disclosed his ADHD.
On June 18, 2008, Wolfe received further progressive discipline after being absent from his work station eleven days prior. On September 24, 2008 Wolfe filed a complaint of discrimination, which specifically dealt with the notice of termination that he received for poor work performance on June 22, 2008. As a result of Union efforts, Wolfe returned to work with a “time served Suspension” and the complaint was closed on July 8, 2009 with a finding of no discrimination.
On March 25, 2009, Wolfe’s supervisors issued him a second notice of termination due to four unscheduled absences in a ninety-day period. Although he returned to work, Wolfe brought forth, among other things, a disability discrimination claim against his employer under the Rehabilitation Act. Wolfe argued his employer regarded him as being substantially limited in the major life activity of working. Wolfe alleged he was subjected to discriminatory disparate treatment for wrongful termination by his employer. That is, Wolfe argued that he was treated differently because of his disability than other employees who had the same number of unscheduled absences and who were not perceived as having a disability.
The Rehabilitation Act prohibits the United States Postal Service from discriminating against an “otherwise qualified individual with a disability.” The legal standards under the Rehabilitation Act are the same as the Title I Americans with Disabilities Act (ADA) standards for determining employment discrimination. Thus, in order to establish a case of discrimination under the Rehabilitation Act, a person must show: (1) s/he has a disability; (2) s/he is qualified for the position; and (3) s/he was subjected to unlawful discrimination as the result of his or her disability. A disability is a physical or mental impairment that substantially limits one or more major life activities of [the] individual; a record of such an impairment; or being regarded as having such an impairment.
The standard for determining whether a person has a disability under the ADA and Rehabilitation Act was expanded when Congress adopted the ADA Amendments Act of 2008 (ADAAA), which took effect on January 1, 2009. Before implementation of the ADAAA, in order to be regarded as a person with a disability with respect to one’s ability to work, the ADA required that a plaintiff be regarded by others as being unable to work in a broad class of jobs because of the perceived disability. On January 1, 2009, post-ADAAA, a person satisfied the “regarded as” definition of disability with respect to one’s ability to work if they were subject to discrimination because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
The majority of Wolfe’s claims –which primarily include a hostile work environment that occurred after Wolfe disclosed his disability around 2003 – occurred before the effective date of the ADAAA. The Court determined these claims were governed by pre-ADAAA standards. Wolfe argued that his supervisors regarded him as a person with a disability. The Eleventh Circuit affirmed the District Court’s decision that Wolfe failed to establish that he was regarded as having a disability, because Wolfe’s ADHD did not affect his performance as a mechanic, and did not limit his ability to work in a broad class of jobs.
The only post-ADAAA claim by Wolfe involved an alleged wrongful termination notice he received on March 25, 2009, after the effective date of the ADAAA. A plaintiff must only demonstrate that the employer regarded him as being impaired, not that the employer believed the impairment prevented the plaintiff from performing a major life activity. The Eleventh Circuit accepted Wolfe’s regarded as argument without discussion, likely because the employer had prior notice that Wolfe had ADHD.
In order to show disparate treatment, a plaintiff must demonstrate that his employer treated similarly situated employees outside of his or her protected class more favorably than he or she was treated. The Court found that there was no evidence of disparate treatment because Wolfe did not identify a single person, outside-the-protected-class, who had committed the same workplace violations and was punished less severely.
In the context of “regarded as” claims and of one’s ability to work, this case is important because it highlights the different analysis used after the passage of the 2008 Amendments Act. A person meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. This change likely will reduce a plaintiff’s burden in establishing that he or she meets the definition of disability necessary to receive the protections of the law.