Lewis v. Humboldt Acquisition Corp.

• Decision Date: 25 May 2012
• Docket Number: No. 09–6381.,09–6381.
• Citation: 45 NDLR P 79,26 A.D. Cases 389,681 F.3d 312
• Parties: Susan LEWIS, Plaintiff–Appellant, v. HUMBOLDT ACQUISITION CORPORATION, INC., dba Humboldt Manor Nursing Home, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

681 F.3d 312
26 A.D. Cases 389
45 NDLR P 79

Susan LEWIS, Plaintiff–Appellant,
v.
HUMBOLDT ACQUISITION CORPORATION, INC., dba Humboldt Manor Nursing Home, Defendant–Appellee.

No. 09–6381.

United States Court of Appeals,
Sixth Circuit.

Argued: Nov. 30, 2011.
Decided and Filed: May 25, 2012.

[681 F.3d 313]

ARGUED: Eric Schnapper, University Of Washington, Seattle, Washington, for Appellant. James K. Simms, IV, Cornelius & Collins, LLP, Nashville, Tennessee, for Appellee. Jennifer S. Goldstein, United States Equal Employment Opportunity Commission, Washington, D.C., for Amici Curiae. ON BRIEF: Eric Schnapper, University Of Washington, Seattle, Washington, Michael L. Weinman, Weinman & Associates, Jackson, Tennessee, for Appellant. James K. Simms, IV, J. Cole Dowsley, Jr., Cornelius & Collins, LLP, Nashville, Tennessee, for Appellee. Jennifer S. Goldstein, United States Equal Employment Opportunity Commission, Washington, D.C., Rae T. Vann, Norris, Tysse, Lampley & Lakis, LLP, Washington, D.C., E. Todd Presnell, Kara E. Shea, Miller & Martin PLLC, Nashville, Tennessee, Nicole E. Shannon, Chris E. Davis, Michigan Protection & Advocacy Service, Inc., Lansing, Michigan, for Amici Curiae.

Before: BATCHELDER, Chief Judge; MARTIN, BOGGS, MOORE, COLE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH and DONALD, Circuit Judges.

SUTTON, J., delivered the opinion of the court, in which BATCHELDER, C.J., BOGGS, GIBBONS, ROGERS, COOK, McKEAGUE, GRIFFIN, and KETHLEDGE, JJ., joined. CLAY, J. (pp. 322–25), delivered a separate opinion concurring in part and dissenting in part, in which MARTIN, J., joined. STRANCH, J. (pp. 325–31), delivered a separate opinion concurring in part and dissenting in part, in which MOORE, COLE, and WHITE, JJ., joined. DONALD, J. (pp. 331–42), delivered a separate opinion concurring in part and dissenting in part.

OPINION
SUTTON, Circuit Judge.

When Susan Lewis filed this lawsuit in 2007, Title I of the Americans with Disabilities Act (ADA) prohibited discrimination “because of” the disability of an employee. 42 U.S.C. § 12112(a), Pub.L. No. 101–336, Title I, § 102, 104 Stat. 327, 331 (1990) (amended 1991). When it came time to present her ADA claim to a jury, each party urged the district court to put a different gloss on this language. The company asked the court to instruct the jury

[681 F.3d 314]

that Lewis could prevail only if the company's decision to fire her was “sole[ly]” because of Lewis's disability, a term that appears in the Rehabilitation Act but not in the ADA. Lewis asked the court to instruct the jury that she could prevail if her disability was “a motivating factor” in the company's employment action, a phrase that appears in Title VII but not in the ADA. Consistent with the Supreme Court's decision in Gross v. FBL Financial Services, 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), we see no reason to insert the one addendum (“solely”) or the other (“a motivating factor”) into the ADA. As the district court's jury instructions did not comply with all of these requirements, we reverse and grant Lewis a new trial.

I.

In March 2006, Humboldt Acquisition Corporation dismissed Lewis from her position as a registered nurse at one of the company's retirement homes. Lewis sued Humboldt under the ADA in March 2007, claiming that Humboldt fired her because she had a medical condition that made it difficult for her to walk and that occasionally required her to use a wheelchair. Humboldt responded that it dismissed Lewis based on an outburst at work, in which she allegedly yelled, used profanity and criticized her supervisors.

The case went to a jury. At the close of the trial, Lewis asked the court to instruct the jury that if “the complained of discrimination was a motivating factor in the adverse employment decision,” she should prevail. R.57 at 5 (emphasis added). The district court refused the request. It instead adopted the company's proposed instruction—that Lewis could prevail only if “the fact that [the] plaintiff was a qualified individual with a disability was the sole reason for the defendant's decision to terminate [the] plaintiff.” R.100 at 14 (emphasis added). The jury ruled for the company.

II.

In adopting the company's proposed instruction, the district court did not walk alone. For the past seventeen years, our court has required district courts to instruct juries that ADA claimants may win only if they show that their disability was the “sole” reason for any adverse employment action against them. The term crept into our ADA jurisprudence in Maddox v. University of Tennessee, 62 F.3d 843 (6th Cir.1995), which involved claims under the ADA and the Rehabilitation Act of 1973, a happenstance that may explain why we blurred the distinction between the laws in the first place. Then, as now, the Rehabilitation Act and the ADA serve the same goals, seeking to eliminate disability-based discrimination and other barriers to employment and public services for individuals with disabilities. With the passage of the ADA in 1990, Congress extended many of the Rehabilitation Act's protections to entities that do not receive federal funding, and borrowed many of the requirements and standards from the earlier law in doing so. Relying on these similarities between the two laws (but neglecting to mention the differences between their causation standards), Maddox applied the Rehabilitation Act's causation standard to both claims because “[t]he ADA parallels the protection of the Rehabilitation Act.” Id. at 846 n. 2.

Consistent with Maddox, we used the “solely” standard in an ADA-only claim a year later, Monette v. Electronic Systems Corporation, 90 F.3d 1173, 1177–78 (6th Cir.1996), and before long that became the standard for relief under the ADA in this circuit, see, e.g.,

[681 F.3d 315]

Macy v. Hopkins County Sch. Bd. of Educ., 484 F.3d 357, 363–64 (6th Cir.2007); Cotter v. Ajilon Servs., Inc., 287 F.3d 593, 598 (6th Cir.2002).

The longer we have stood by this standard, the more out of touch it has become with the standards used by our sister circuits. At this point, no other circuit imports the “solely” test into the ADA. See Katz v. City Metal Co., 87 F.3d 26, 33 (1st Cir.1996); Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir.2000); Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 187 (3d Cir.2003); Baird v. Rose, 192 F.3d 462, 468–69 (4th Cir.1999) (Title II case); Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir.2008); Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 963 (7th Cir.2010); Pedigo v. P.A.M. Transp., Inc., 60 F.3d 1300, 1301 (8th Cir.1995); Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1065 (9th Cir.2005); Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 878 (10th Cir.2004); McNely v. Ocala Star–Banner Corp., 99 F.3d 1068, 1074 (11th Cir.1996); Adeyemi v. Dist. of Columbia, 525 F.3d 1222, 1226 (D.C.Cir.2008).

Our interpretation of the ADA not only is out of sync with the other circuits, but it also is wrong. Since Maddox, Congress has amended the Rehabilitation Act and the ADA several times, but the distinction between the causation standards used by the two laws persists. When Lewis filed this lawsuit in 2007, § 504 of the Rehabilitation Act provided: “No otherwise qualified individual with a disability ... shall, solely by reason of his or her disability, be ... subjected to discrimination.” 29 U.S.C. § 794(a) (emphasis added). At the time, Title I of the ADA provided: “No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual.” 42 U.S.C. § 12112(a) (emphasis added).

Nor is Title I of the ADA, which applies to private and public employers, the only section of the ADA that fails to use “solely.” Title II of the ADA, applicable to public services, says:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Id. § 12132 (emphasis added). The same is true of Title III (public accommodations), which applies to discrimination “on the basis of disability,” id. § 12182(a), and Title V (anti-retaliation), which bars discrimination “because” an individual opposed an employment practice, id. § 12203(a).

Later amendments to the ADA do not change things. Under the ADA Amendments Act of 2008, Title I now reads: “No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a) (emphasis added). Even though the amended law does not cover this lawsuit, it too says nothing about a sole-cause standard of liability. At no point, then or now, has the ADA used the “solely” because of formulation found in the Rehabilitation Act.

That leaves us with two laws with two distinct causation standards. One bars differential treatment “solely by reason of” an individual's disability; the other bars differential treatment “because of” the individual's disability. No matter the common history and shared goals of the two laws, they do not share the same text. Different words usually convey different meanings, and that is just the case here. A law establishing liability against employers

[681 F.3d 316]

who discriminate “because of” an employee's disability does not require the employee to show that the disability was the “sole” cause of the adverse employment action.

Nor should it surprise anyone that Congress opted to give the ADA more regulatory bite. After seventeen years of experience with the Rehabilitation Act's “solely” standard, Congress could well have decided that this limitation on employer...