NELA Amicus Brief: Travers v. Cellco Partnership d/b/a Verizon Wireless

Posted By: Roberta L. Steele March 11, 2014 10:36 am
Posted In: NELA Amicus Briefs
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Topic : Disability, Retaliation  Statutes : ADA AA, FMLA  Federal Appellate Courts : 6th Circuit  Admin : Amicus

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On March 3, 2014, NELA filed an amicus curiae brief in Travers v. Cellco Partnership d/b/a Verizon Wireless in the U.S. Court of Appeals for the Sixth Circuit in support of plaintiff Patricia Travers who was wrongfully terminated in violation of the ADA and in retaliation for taking FMLA leave. The court in the Middle District of Tennessee granted Cellco’s motion for summary judgment on Travers’ disability claim for two reasons. First, it found insufficient evidence that Travers was “regarded as” having a disability because Travers did not show that she was regarded as unable to do her job or as being substantially limited in performing the tasks of her job. Second, the court found insufficient evidence that the alleged misconduct was pretext. The definition of disability under the ADAAA is one of NELA’s current amicus priorities.   

Travers had been terminated immediately upon her return to work after taking approved medical leave, allegedly for waiving mail in rebates for customers.  Verizon’s FMLA leave is handled by third party administrator, MetLife. In order for an employee to not be penalized for taking medical leave, it must be designated as FMLA after the employee has gone through a cumbersome qualification process. Any employee who does qualify for FMLA leave or short term disability through MetLife is identified on a “disability dashboard” to which all Verizon managers have access, receive updates about the employees, and discuss weekly at meetings. The court found this fact insignificant concerning whether Verizon regarded Travers as disabled.  The employer did not have an ADA accommodation policy. Travers  produced a termination document approved by regional HR, which stated that she was terminated for violation of the attendance policy. The court ignored this evidence, and only considered the employer’s late filed affidavit disputing the statements in the termination document.  
 
NELA’s amicus brief focused on the court’s flawed analysis of the “regarded as” provision of the ADAAA and its requirement that plaintiff prove defendant’s state of mind to establish that she was regarded as having a disability. Under the ADAAA, to establish “regarded as,” it no longer matters whether an impairment is limiting or the employer believes it is limiting. Rather, “regarded as” is now an impairment standard, with no functional analysis required, real or perceived. Although the district court recited the correct standard for interpreting “regarded as,” it deviated from the required analysis and the basis it gave for its summary judgment holding betrayed a misunderstanding of the law.

NELA thanks NELA Executive Board and Amicus Advisory Council member Brian East (TX) for authoring our amicus brief. Ms. Travers is represented by NELA member Heather Moore Collins (TN).

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