Outten & Golden: Empowering Employees in the Workplace

For Once, An ADA Case That Inspires Instead of Depresses

March 15th, 2005 | Paula Brantner

Following employment trends, and especially court cases, can be mighty depressing work. More often than not, the limitations of the law to help ordinary citizens are all too apparent, especially when coupled with an increasingly conservative judiciary that favors employers at seemingly every turn. And if you follow developments under the Americans with Disabilities Act (ADA), you know that the news is even more depressing when compared to other employment developments. Once in a while, however, a case comes along that, to employ a perhaps trite cliche, makes your heart sing. Emory v. AstraZeneca, recently decided by the 3rd Circuit Court of Appeals, is one of those cases that should remind everyone who fights for the rights of employees, as a worker or an advocate, why they do what they do.

Alvin Emory, known as Rob, was a janitor for the drug manufacturer AstraZeneca at its Newark, Delaware plant for over 27 years. He is the only janitor at his assigned plant to have originally started work as a janitor, and to still be in that position over 25 years later. Is his failure to advance because Rob was without ambition, or lazy? Certainly not, as his story will attest. Rob was born with cerebral palsy. He has permanent partial paralysis on his right side, and he describes his right hand, arm and leg as “deformed.” This means there are certain things he can’t do, as he:

cannot tie his shoes or a tie, roll his sleeves, close buttons, or put on a belt. In addition, among other tasks, he is unable to cut his fingernails or toenails, screw the top on a toothpaste tube, cut his own meat, open a jar, pull heavy dishes and pans in or out of the oven, change diapers, carry his children up the stairs, hold a pen or pencil in his right hand, or perform certain basic household chores and repairs.

Rob also has mental limitations that stem from his cerebral palsy. He was placed in special education classes at an early age, and although he received a GED through his special education program, as a high school sophomore, he tested at a 2nd grade comprehension level. Testing in 2003 revealed that in reading, arithmetic and spelling, he tested at or below 99 out of 100 adults in his age group.

It’s clear, however, that Rob is not one to focus on what he can’t do, because what he does do with his life is more than most able-bodied citizens will ever be able to claim. He is a father and a volunteer firefighter since his teenage years. He joined the Shriners, and when he couldn’t march in parade formation with the others, he created a character incorporating his impairments known as “Stumbles the Clown” who performs with the Shriners. He volunteers for a local organization that mediates disputes between community members. And in his “spare time,” he runs a cleaning service with a partner that has two commercial contracts.

Employing that same drive and zeal to assist others in his work life, he sought promotions from his janitorial job at AstraZeneca. On multiple occasions, he trained for more advanced positions, but ultimately withdrew after it was clear that he would be physically unable to handle the increased demands of those positions. Then, when another employee was promoted in 1999, Rob assumed the position of Second Shift Supervisor. He held that position for over two years, during which time he was ridiculed for math and spelling errors and called “Rain Man,” after the Dustin Hoffman character from the movie of the same title. He asked to buy a calculator with his own money to correct his math errors, but was told no, “because everyone should know basic subtraction and adding.” He asked for testing at a learning center to determine what accommodations he needed to perform the job, and was again denied. Then, in 2001, when the Maintenance Department was reorganized, Rob was passed over for the permanent supervisor’s position.

When Rob filed a complaint with the EEOC and his local state antidiscrimination agency, the Delaware Department of Labor, and then filed a lawsuit in federal district court, his employer’s response was that Rob was not disabled enough to qualify for the protections of the Americans with Disabilities Act. They said while he had some limitations, those limitations were not substantially limiting enough for him to be entitled to legal protection. Incredibly, the district court agreed, holding that “while he may perform some of his daily activities in an unconventional manner as a result of his impairments, he is not substantially limited in his ability to perform those activities.” This meant Rob’s discrimination case against AstraZeneca was dismissed on summary judgment.

Luckily, Rob appealed this ruling to the 3rd Circuit Court of Appeals (represented by Barbara Stratton of Wilmington, Delaware, with the help of Workplace Fairness’ Chet Levitt Fund.) This court realized the ludicrousness of holding that Rob was not disabled, which essentially penalized him for all of his accomplishments in overcoming the limitations of his disability. The Court said,

So, while the District Court stressed that Emory could “operate a cleaning business, perform as a clown, counsel families as a mediator, and assist his community as a firefighter,” it ignored evidence that Emory cannot tie his shoes or necktie, open a jar, cut his nails, perform various household chores and repairs, remove heavy dishes from the oven, change a diaper, carry his children up the stairs, or cut his own meat with a knife and fork. These latter activities, which are but a few examples demonstrative of how very manually impaired Emory is, are “of central importance to people’s daily lives,” and Emory is either completely without ability or severely restricted in his ability to perform them.

Decision of March 11 at 17. The rule that the 3rd Circuit leaves us with is “What a plaintiff confronts, not overcomes, is the measure of substantial limitation under the ADA.”

Rob’s victory at the appellate level distinguishes him from most other individuals who bring disability discrimination cases. According to the most recently compiled statistics, employers win all but 2% of disability discrimination cases against them in federal court. (See ABA Commission on Mental and Physical Disability Report from June 2004.) In the year 2003, the last year for which statistics are available, no employees in the federal courts comprising the 3rd Circuit (Pennsylvania, Delaware, and New Jersey), won their ADA cases.

Yet again, Rob appears to have persevered to overcome substantial odds. This time, it wasn’t just his physical or mental limitations, but the limitations of the Americans with Disabilities Act when it comes to helping the very people it was written to protect. Rob is very clearly an extraordinary individual, but it’s too bad that the number of workers who prevail in ADA cases is also limited to such an extraordinary few.

More Information:

Workplace Fairness
disability discrimination page
Short-Changed discrimination page
Chet Levitt Fund
Litigation Funds

Associated Press article:
Federal appeals court grants AstraZeneca custodian a trial

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