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Firing over test failure not a violation of ADA

Request for extension of time was rejected

An employee who lost his job when he was unable to pass a test required by his employer could not hold the employer liable for refusing to grant him a time extension as an accommodation for his medical condition, the 1st U.S. Circuit Court of Appeals has ruled.

The plaintiff employee argued that he could have performed the essential job function of passing the exam with the reasonable accommodation of an extension.

The 1st Circuit was not convinced.

“[The plaintiff] did not show any reason for the employer to conclude he would pass the exam if given yet another opportunity to take it,” Chief Judge Sandra L. Lynch wrote for the unanimous three-judge panel. “[The plaintiff] did not satisfy his burden of showing facial reasonableness, … and thus we agree with the district court that the defendants were entitled to summary judgment on [the plaintiff]’s claim for failure to accommodate.”

The 26-page decision is Jones v. Nationwide Life Insurance Company, et al.

Maurice M. Cahillane of Springfield, Mass., argued the appeal on behalf of the employee. He was opposed by Andover, Mass., attorney Jessica L. Herbster.

Successive failures

Plaintiff Mark Jones worked in the insurance industry since 1984. In 1979, he was in a motorcycle accident, and as a result he developed brachial plexus palsy, or BPP.

The condition led to chronic pain in Jones’ left arm and caused him to lose most of the use of that arm, resulting in atrophy that made his left arm smaller than his right.

He has since regularly taken painkillers to manage his condition.

In February 2006, the plaintiff fell and broke his left shoulder. Since he already had a fused left shoulder held together by metal plates, it was difficult to treat his new injury. He underwent four surgeries during 2006.

The plaintiff’s doctor prescribed both morphine and oxycodone to manage his pain. During 2007 and 2008, the plaintiff developed an infection relating to his 2006 surgeries, and in June 2008 he had another operation to treat the infection and remove hardware from a previous surgery.

On Feb. 20, 2006, the plaintiff received an email informing him that, in mid-2006, the defendant employer, Nationwide Life Insurance Co., would begin offering a new retirement product called the NRS Managed Account Service, referred to as “ProAccount.”

The email stated that relevant employees would have to become Investment Advisor Representatives of Nationwide Investment Services Corp., in order to sell and service ProAccount.

To obtain the IAR certification, the employee had to pass the Series 65 or 66 licensing exam administered by the Financial Industry Regulatory Authority.

A March 3, 2006, email noted that employees would have 120 days to pass the exam.

FINRA offers “windows” during which the exams are available and controls the intervals that a test-taker must wait between exams if he does not pass. After the first and second failures, the waiting period is 30 days; after the third and later failures, it increases to 180 days.

On Dec. 4, 2007, Stephen Angelis, the vice president of sales, emailed all sales personnel, including the plaintiff, to inform them that, effective Jan. 1, 2008, passing the Series 65 or 66 exam by the end of that year would be a condition of employment in the regions where ProAccount was offered. Employees had until Dec. 31, 2008, to pass the exam, or they would face transfer or termination. The requirement was uniformly applied to existing employees.

The plaintiff failed the exam four times. In a phone call with Regional Vice President Brenda Anderson on Dec. 23, 2008, the plaintiff mentioned for the first time that he thought his medical condition had affected his ability to pass the exam. Also for the first time, he raised the possibility of being granted more time to pass, given his medical condition over the past year.

Facing a Dec. 31 expiration date for his period to have obtained a Series 65 license, the plaintiff emailed Angelis on Dec. 28, 2008, and, for the first time, specifically requested an extension of time to complete the Series 65 requirement. He told Angelis that his “recent medical condition and resulting treatment impacted me more than I would care to admit.”

The plaintiff stated that his 2006 injury and its “aggressive treatment,” including high doses of morphine and oxycodone, “drastically hindered [his] academic ability” by making him unable to concentrate on the exam material, but he did not submit any information from his medical providers in support of those assertions.

On Dec. 31, 2008, Anderson called the plaintiff and informed him that he would not be granted an extension. She told him that the decision to apply the original deadline would stand because it was a consistent policy across the company.

The plaintiff responded with a federal lawsuit claiming violations of state law and the Americans with Disabilities Act.

An order of summary judgment for the employer was entered by U.S. District Court Judge Michael A. Ponsor.

Accommodation request

On appeal, the plaintiff attacked Ponsor’s conclusion that he did not meet his burden of showing that his purported accommodation request was reasonable.

The plaintiff argued that he could have performed the essential function of passing the Series 65 exam with the reasonable accommodation of an extension of time, and also that it was error for the judge to conclude that such an accommodation was unreasonable because it would have been futile.

The 1st Circuit noted that the plaintiff’s only purported accommodation request was his December 2008 email to Angelis.

“While this e-mail was direct and specific in its request for an extension of time, it did not link Jones’s request to his now-claimed disability,” Lynch said. “It does not mention BPP or suggest in any way that Jones’s recent medical treatments or pain therapy were connected to BPP.”

Thus, the 1st Circuit found that the defendant’s executives were not on notice that the symptoms the plaintiff described in his email were caused by a disability.

“Whatever Jones’s evident physical characteristics, they had neither been claimed earlier to have been a disability nor been claimed to have required an accommodation,” Lynch wrote.

“Beyond that, Jones’s requested accommodation was not reasonable,” Lynch said, noting that it was the plaintiff’s burden to demonstrate that his requested accommodation seem reasonable on its face.

“To begin with, the request came too late and after Jones knew his employment was being terminated after his failure to perform an essential function of his job,” Lynch said. “When an employee requests an accommodation for the first time only after it becomes clear that an adverse employment action is imminent, such a request can be ‘too little, too late.’”

The court went on to point out that the plaintiff must demonstrate that his requested accommodation would enable him to perform the essential functions of his job and would be feasible for the employer under the circumstances.

“Jones cannot satisfy the first prong of this test because he presented no basis to his employer for his claim that a six-month delay beyond December 31, 2008 (until he was eligible to take the exam again) was reasonable,” Lynch said.

The court also found that the plaintiff did not show any reason for the employer to conclude he would pass the exam if given yet another opportunity to take it.

“[P]ast experience gave [National Life Insurance] no reason to believe that allowing Jones’s proposed accommodation would actually lead him to pass the Series 65 exam,” Lynch said. 

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