Posted by stephen on April 18th, 2012
Success on the oil field comes when a company drills in the right place and taps into the oil reserves. Likewise, a disgruntled employee may tap into a company’s riches if the company fails to take certain precautions and if the employee knows the weaknesses in an employer’s defense and drills accordingly. Read on to find out how an ex-driller may have struck black gold with his ADA claim.
Disabled Driller Blows Gasket?
Dennis Carter worked for Pathfinder Energy Services, Inc. (“Pathfinder”) as a directional driller. The job was a demanding one that entailed long shifts?often 24 hours or more?drilling non-vertical oil wells. Prior to the time Pathfinder hired Carter, he had been diagnosed with diabetes and fibromyalgia, a chronic pain condition. He later contracted and was diagnosed with hepatitis C as well as postural hypotension, which caused a drop in blood pressure whenever he stood up.
During the first 20 months on the job, Carter worked full-time and was never given a warning or disciplined for bad behavior. At that time, Carter was able to control his diabetes primarily through diet and exercise.
Thereafter, Carter’s health began to worsen as he felt increasingly weak and fatigued. He discussed his health problems with his supervisor, Rich Arnold, and explained his need for more rest. His workload was subsequently cut in half.
Carter’s health eventually declined to the point where his friends had to help him prepare his food, get dressed, feed his pets, do laundry, shop for groceries, and shower. However, because his reduced workload gave him time to rest and recover between job assignments, Carter remained able to work full 24-hour shifts while on the job.
Carter had just finished working a 10-day assignment when Arnold asked him to immediately work another assignment. Carter initially agreed, but on his way to the job site the next day, he called Arnold and told him that he was no longer feeling well enough to work and needed time off to rest and recover from his last job assignment. The discussion became tense and Arnold said that he would have to call the other driller assigned to the job to let him know that Carter would not be there to help him. Not wanting to let his coworker down, Carter agreed to work the job despite his health problems. He told Arnold: “I’ll f _ _ _ ing go . . . . I know what it’s like to work by yourself and I don’t like it, so I’ll go. But when I get back, I’m going to go to my doctor and get you a letter stating that at this time I’m unable to work.” Arnold replied that Carter had taken “more days off than anybody,” to which Carter reacted defensively, saying: “I have been sick and you know I have been sick.” Carter then abruptly hung up.
When Carter arrived at the job site, he went to his room and saw that his bunkmate had left a pair of pants on the lower bunk. Carter moved the pants to the upper bunk, and slept on the lower bunk. When Carter awoke, he found that his bunkmate, who had just completed a 40-hour shift, was upset that he had taken the lower bunk. Carter commented, “it don’t make a f _ _ _ to me,” and took the upper bunk.
The next day, Carter found blood in his urine and went home sick. Arnold met with Carter a few days later and told him that he had heard that his coworker complained that Carter had told the coworker to “f _ _ _ off.” Arnold then fired Carter for gross misconduct, citing Carter’s inability to get along with others. He later explained that he fired Carter based on two instances: (1) Carter’s altercation with the other driller; and (2) Carter’s use of the “I’ll f _ _ _ ing go” expletive and his abruptness in hanging up the telephone on Arnold.
After he was told that he was fired, Carter mentioned to Arnold that “part of the reason for me being probably grouchy was my diabetes was out of control at the time.” Arnold replied that the other drillers were working 25 to 26 days per month, and he was concerned that they would start quitting if he did not fire Carter. He also stated, incorrectly, that Carter was not capable of working 24-hour shifts. Arnold denied Carter’s requests both for additional time to address his health issues and to retain his medical benefits.
Carter filed a lawsuit against Pathfinder in federal district court in Wyoming, alleging multiple claims, including violation of the American with Disabilities Act (“ADA”). The district court dismissed all of Carter’s claims without a trial, and Carter appealed the decision to the Tenth Circuit Court of Appeals, which governs Utah as well as Wyoming.
To establish a basic ADA claim, an employee must show that, at the time he was fired, (1) he was a disabled person as defined by the ADA; (2) he was qualified, with or without reasonable accommodation, to perform the essential functions of his job; and (3) he was fired because of his disability. The Tenth Circuit examined each of these elements in turn.A person is “disabled” under the ADA if he has “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. 12102(1)(A). To satisfy this definition, an employee must: (1) have a recognized impairment, (2) identify one or more appropriate major life activities, and (3) show that the impairment substantially limits one or more of those activities.
The Court found that Carter easily satisfied the first two prongs of the test to show he was “disabled.” Because Carter had submitted medical testimony showing that he had diabetes and hepatitis C and that these diseases affected his digestive and circulatory systems during his employment, the Court found that he had a recognized impairment. The Court also found that Carter had identified multiple major life activities that were affected by his impairments. These included activities necessary to care for himself, such as feeding, driving, and grooming himself. These also included manual tasks, such a getting dressed, showering, shopping for groceries, and completing household chores, as well as working.
To satisfy the third prong of ADA’s definition of disability, Carter needed to present enough evidence to create a genuine dispute that his impairment “substantially limits” a major life activity. The inquiry is based on the employee’s own experience, particularly where the impairment is one whose symptoms vary widely from person to person. The Tenth Circuit ruled that the district court had not done an individualized analysis, but had mistakenly found that Carter was not disabled under the ADA because medication-controlled or diet-controlled diabetes is not a substantially-limiting condition. While the statement may generally be true, the district court was still required to inquire as to whether Carter actually was able to control his diabetes through medication or diet.
The Tenth Circuit concluded that there was significant doubt whether Carter was able to control his diabetes through diet and exercise. Although Carter initially tried to control his diabetes through diet and exercise and not medication, the court determined that there was a genuine issue as to whether Carter would have been symptom free even if he had taken medication for his diabetes earlier. He was suffering from hepatitis C as well as diabetes at the time he was fired. Also, although Carter had been taking oral medication for his diabetes since his termination, he was fully disabled.
The Court concluded that Carter’s impairments substantially limited one or more of his major life activities. In reaching this conclusion, the Court considered the nature and severity of Carter’s impairments, the duration or expected duration of his impairments, and the permanent or long-term impact of his impairments. The Court decided that there was enough evidence that a reasonable jury could conclude that Carter’s impairments substantially limited his ability to perform manual tasks or care for himself, in comparison to the abilities of an average person.
Having determined that Carter had shown he was “disabled” under the ADA, the Court then analyzed whether he was qualified to perform the essential functions of his job at the time he was fired. Carter argued that he was qualified with the reasonable accommodation of having time off between job assignments, because he was able to work at a job site for the full 10 to 12 days he was needed and for full 24-hour shifts up until the day he was fired. The Court noted that, although part-time work is not a reasonable accommodation for certain types of jobs where regular attendance may fairly be characterized as an essential function of the job, Carter’s position as a directional driller was not a position where full-time attendance was essential. And, although Carter’s health declined after his firing to the point where he could no longer perform the job, the Court found that he was able to perform the job with time off between job sites at the time he was fired, which is the relevant time period under the ADA.
The Court then examined whether Carter had provided enough evidence to show that a reasonable jury could conclude that Pathfinder had fired Carter because of his disability. The Court concluded that Carter had provided sufficient evidenced based on two statements that he alleged Arnold had made during his telephone call. First, Carter claimed that Arnold had told him that other employees were working 25 or 26 days a month and that he felt they were going to start quitting if he did not fire Carter. Second, he claimed that Arnold had told him incorrectly that he could not work 24 hour shifts. The Court believed that these statements could lead a jury to conclude that Carter was fired because he needed more rest than others between jobs?that is, because he had a disability that Pathfinder no longer wanted to accommodate. Therefore, the Court concluded that Carter had established a basic ADA claim.
Even though Carter had established a basic ADA claim, he would not be entitled to a jury trial unless he had shown sufficient evidence that Patherfinder’s legitimate, non-discriminatory reasons for firing Carter could reasonably be determined by a jury as pretext for a discriminatory motive. The Court analyzed whether any evidence of pretext undermined Patherfinder’s explanation that Carter had been fired for his altercation with the other driller and his use of an expletive before abruptly hanging up on Arnold. Once again, the Court relied upon the two alleged statements Arnold made during his telephone conversation with Carter and decided that those statements supported an inference that Carter’s disability was a determining factor in his firing. It also noted that in the context of the oil field, where employees complete strenuous tasks and work long shifts, the occasional spat between coworkers and the use of expletives seemed inevitable. Therefore, the Court allowed Carter to proceed to trial on his ADA claim.
Carter v. Pathfinder Energy Services, Inc., 2011 WL 5222882 (10th Cir., Nov. 3, 2011).
Know the “Drill”
Sometimes a minor fault in an employer’s handling of a termination can result in an ex-employee being able to successfully tap into an employer’s reserves via a discrimination claim. In this case, Arnold’s alleged reference to other employees possibly quitting and to Carter’s inability to work a full shift created enough doubt that Pathfinder may have fired him because it did not want to accommodate his disability and his part-time schedule any longer. Once an employer accommodates a disabled employee by reducing his or her regular work schedule, it is difficult to then fire the employee for not working full time, particularly if the occupation is such that full-time employment is not a prerequisite of the job. Employers should consult with competent counsel in deciding whether reducing an employee’s hours is a reasonable and necessary accommodation for the employee’s health condition. Otherwise, a disgruntled employee may be able to drill a direct pathway to the employer’s pocketbook.