An employee suffered a severe injury from driving a nail through his head but it was the employer who got hammered for disability discrimination.
Biagio Stragapede, a water worker for the City of Evanston, Illinois, suffered a traumatic brain injury after accidentally driving a 4-inch nail through his skull at home with a nail gun. After nine months off, Stragapede felt ready to return but the City first referred him to Dr. Zoran Grujic for a specialized neurological assessment. Dr. Grujic cleared Stragapede to return to work.
Employer Facts Won’t Hold
By the third week of Stragapede’s return, however, the City had accumulated a list of “concerns” regarding his job performance. Those concerns included:
– He needed help changing out a water meter;
– He was observed by a co-worker driving through an intersection while looking at his lap instead of the road (with a green light and no pedestrians in the vicinity);
– He was unable to complete a specific work task after two hours;
– He drove to the wrong location on two occasions – once going to Green Bay Road instead of Gross Point Road, and once driving to Colfax Place instead of Colfax Street.
– He tripped on some steps and suffered a toe injury.
The City reported the incidents to Dr. Grujic who determined without re-examining Stragapede or consulting with anyone else that these incidents stemmed from the brain injury and proved that he could not perform the essential functions of his job. The City thereupon terminated Stragapede’s employment, leading him to sue for disability discrimination under the Americans with Disabilities Act (ADA).
Jury Hits It On the Head
A jury ruled in Stragapede’s favor, and the Seventh Circuit Court of Appeals affirmed in a decision that reminds all of us that while reasonable people can differ, it is best not to leave room for argument.
Once a jury issues their verdict, it is difficult for the losing side to successfully appeal. This is because a case that has made it to the jury trial stage has probably already been subjected to a motion for summary judgment. This is a request by one party (or sometimes both) for the judge to decide that even if all of the facts are interpreted favorably for the other side, the requesting party is still entitled to win the case as a matter of law. If the motion is denied, it is because the judge determines that a reasonable jury could find in favor of one party or the other.
If a reasonable jury can find for either side, then appealing that determination is going to be difficult. It is not enough simply to persuade the appeals court that the jury was wrong; the court must be convinced that no reasonable jury could have rendered the particular verdict being appealed and that the appealing party is legally entitled to win the case.
That is why it is so important for employers to make sure that their employment decisions are based on substantial and provable factors. This evidence must carry the day at trial or be so overwhelmingly convincing that an appeals court will be unable to envision a reasonable person reaching any other conclusion.
Driving the Point Home
This is where the Stragepede’s employer fell short.
First, the City should have insisted that the doctor examine Stragapede again and that he not simply rely on their input for changing his opinion of Stragapede’s abilities so quickly. In other words, they should have insured that Dr. Grujic appeared to be an independent and objective evaluator of up-to-the minute medical data. Otherwise, the jury could decide that the doctor was acting on incomplete data and his opinion was not reliable. Instead, they could reasonably rely on the doctor’s original determination that Stragapede was fit for duty.
Second, the City should have made sure that their evidence was consistent. In this instance, while one supervisor felt that Stragapede could not perform the essential functions of the job, his direct supervisor maintained a very different opinion. Therefore, a reasonable jury could have decided that the testimony of the primary supervisor, who had more first-hand experience observing Stragapede’s work, was more believable and more indicative of the fact that Stragapede could in fact perform his job duties capably.
Third, in seeking to establish that an employee’s medical condition renders them a threat to health or safety, make sure that such a threat really exists. In this instance, the employer relied on some examples of inadequate job performance (no actual threat there), a couple of incidents of going to the wrong address (he wasn’t an ambulance driver), one toe-stub on the stairs and one admittedly dumb thing in the car that probably is something that other employees have done from time to time. Adding it all up, a jury was certainly entitled to conclude that the employee did not pose a direct threat to health or safety.
The employer in this case presumably felt that they had good reason to take the action that they did. After all, they had evidence of Stragapede’s shortcomings and a letter from a doctor stating that he could not do the job. Unfortunately, these facts also allowed for a very reasonable and credible alternative narrative, and that’s the one that the jury believed.
We know that not every employment decision will 100% airtight and unassailable – that is an unattainable goal. Nevertheless, when approaching a possible termination based on a medical issue, remember that juries are just regular people and reasonable people can differ on just about anything.
Therefore, employers should do their best to minimize those possibilities by making sure that the medical opinions are based on up-to-date data, that the evidence is consistent and that the decision leaves little room for question. In other words, make sure you nail it.