A doctor’s note about a worker’s physical limitations couldn’t prove the worker had a disability because the doctor had not been properly identified as an expert witness, the 10th U.S. Circuit Court of Appeals ruled (Tesone v. Empire Marketing Strategies, No. 20-1093 (10th Cir., Feb. 5, 2021)).

Empire, a marketing company, assigned a worker to reset a retail display at an out-of-town grocery store; she extended her stay at a hotel without approval, believing the job would require additional hours, according to court documents. When the company met with the her to discuss the unapproved stay, the plaintiff stated that “a lifting limitation negatively impacted her job performance,” which prompted Empire to request a doctor’s note that would document the limitation. The note, written by a doctor that the worker had neither met nor consulted with before obtaining the letter, said she had limitations related to muscle weakness and chronic lower back pain and that she could not lift more than 15 pounds. Eventually, Empire fired the worker over alleged consistent violations of company policies; she sued, claiming disability discrimination, among other things.

The Americans with Disabilities Act (ADA) does not require expert medical testimony to establish a plaintiff’s disability, the court noted in its opinion. “But this does not mean a plaintiff can defeat summary judgment without coming forward with some evidence (lay or expert) that she has a physical or mental impairment that substantially limits one or more major life activities.” The only evidence the worker put was the doctor’s note, and the doctor was not timely disclosed as an expert witness. The doctor qualified only as a non-expert witness, who can testify only about personal knowledge and observations “not based on scientific, technical, or other specialized knowledge,” the court said. But the doctor’s letter was based on such knowledge, rendering the employee’s argument meritless, it concluded.

The ADA’s definition of a disability is broad, McAfee & Taft Attorney Elizabeth Bowersox wrote in a blog post about Tesone. Because of that broadness, employers are often left feeling confused and frustrated. “This case is a good reminder that to succeed on an ADA claim, an employee must have some actual evidence of a disability.”

The ADA defines an individual with a disability as someone who has a physical or mental impairment that substantially limits one or more major life activity. This can include someone with a record of such an impairment and those regarded as having such an impairment.

Had the worker in Tesone been able to secure an expert witness to prove she fell into one of these categories, “the case could have come out differently,” Bowersox wrote. “In this case, with the benefit of hindsight, Empire might have been better off terminating [the worker] directly after the unauthorized hotel stay. Employers should continue to request documentation when an employee claims a restriction and should continue to document performance problems for all employees.”

When an employer provides documentation of a legitimate and nondiscriminatory reason for an adverse employment action, the employer can prevail if matters go to court. But, as Allison West, principal at Employment Practices Specialists, told attendees at the 2019 Society for Human Resource Management’s Employment Law and Legislative Conference, that documentation has to be done right. She suggested manager training on the most common employer documentation mistakes, including no documentation, vague documentation, unclear employee expectations and use of snarky or sarcastic language.

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