Federal Evidence Review

Although a plaintiff’s disability discrimination claim sought recovery on a “regarded as disabled” basis and not on the failure to make a reasonable accommodation, evidence regarding defendant’s failure to make a reasonable accommodation was admissible because its probative value in showing the defendant's animosity towards the plaintiff's epilepsy was not outweighed by its prejudice in light of the limited amount of reasonable-accommodation evidence presented, in Finan v. Good Earth Tools, Inc., 565 F.3d 1076 (8th Cir. May 19, 2009) (No. 08-2221)

The Americans With Disabilities Act does not expressly state whether an employer is required to provide a reasonable accommodation to someone “regarded as” disabled. As a result, the courts have split on this issue and some circuits, such as the Eighth Circuit, hold that those “regarded as” disabled are not entitled to reasonable accommodations under the Act. See Weber v. Strippit, Inc., 186 F.3d 907, 916-17 (8th Cir. 1999) (“The ADA cannot reasonably have been intended to create a disparity in treatment among impaired but non-disabled employees, denying most the right to reasonable accommodations but granting to others, because of their employers' misperceptions, a right to reasonable accommodations no more limited than those afforded actually disabled employees. Accordingly, we hold that ‘regarded as’ disabled plaintiffs are not entitled to reasonable accommodations.”), cert. denied, 528 U.S. 1078 (2000).

But if recovery because of failure to reasonably accommodate is off the table, is evidence of lack of reasonable accommodation admissible in order to help prove recovery on another basis under the Act? The Eighth Circuit recently considered whether it was an error to admit evidence of the defendant’s failure to reasonably accommodate the plaintiff, even though the plaintiff could not actually recover for any failure of the defendant to reasonably accommodate. The circuit found that this evidence was still admissible even though it was directly relevant to a theory of recovery not at issue.

In the case, plaintiff Finan sued the defendant, his employer Good Earth Tools, claiming he was fired based on his disability (epilepsy). The plaintiff had worked as a traveling salesperson for the defendant, who heard from customers beginning in October 2001 that there was "something wrong" with the plaintiff. Initial medical evaluations ordered by the defendant were inconclusive. Finally, in 2003 the defendant received notice from a company-selected neurologist who evaluated the plaintiff that he had “complex partial seizure disorder.” In addition, the plaintiff's personal doctor reported that the plaintiff had epilepsy, “but with proper medication, his seizures should be controlled. Finan's doctor explained that he could return to work immediately and would be able to drive again once seizure-free for six months.” Finan, 565 F.3d at 1078.

The defendant terminated the plaintiff in 2004 citing his “poor sales.” At trial of his disability discrimination case, the jury rendered a verdict that the defendant terminated the plaintiff due to a perceived disability and awarded him back pay and damages. The defendant appealed, contending in part that the trial court erred when it admitted unduly prejudicial evidence that the defendant did not give the plaintiff reasonable accommodation for his condition. The plaintiff's theory was that the defendant regarded the plaintiff as disabled, and therefore he would was not entitled to reasonable accommodation under the discrimination law as interpreted by the Eighth Circuit. The defendant claimed that admitting evidence about the “reasonable accommodation” the defendant made or did not make to the defendant's condition was unfairly prejudicial given that it was not probative of any legal obligation the defendant had to make. Finan, 565 F.3d at 1080.

The circuit affirmed the admission of evidence of the failure to reasonably accommodate the plaintiff. The circuit noted that this result was a result of the theory upon which the plaintiff proceeded:

"The ADA defines a disability, with respect to an individual, as: '(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.' At trial, Finan proceeded under the 'regarded as' theory-that he was able to work, but he was terminated because Good Earth regarded him as disabled."

Finan, 565 F.3d at 1079 (citing 42 U.S.C. § 12102(2)).

Based on this theory, the plaintiff had the burden of showing that he “was able to perform the essential functions of his job at the time of his discharge.” This showing did not entail whether the defendant provided the plaintiff reasonable accommodation. The central issue for the jury was whether the plaintiff “was able to perform the essential functions of his job.” The circuit affirmed the jury verdict for the plaintiff because the plaintiff “presented evidence at trial that he was fit to drive and perform the other essential functions of the job of traveling salesperson, without accommodation. Good Earth's contrary evidence was apparently not believed by the jury. The evidence was sufficient for a reasonable jury to conclude that Finan was able to perform the essential functions of his job.” Finan, 565 F.3d at 1079.

Even though the essential issue for jury was whether the plaintiff was able to perform the essential functions of his job without reasonable accommodation, evidence that the plaintiff introduced that the defendant failed to make a reasonable accommodation was not erroneous. As explained by the Circuit:

“Good Earth's responses to [plaintiff's] requests for accommodation are probative as to whether Good Earth harbored animosity toward Finan due to his epilepsy. Good Earth fails to indicate how any prejudice resulting from admission of this evidence outweighs its probative value. Further, contrary to Good Earth's assertion, the amount of reasonable-accommodation evidence presented to the jury was limited. Good Earth proffers that it objected repeatedly to the introduction of reasonable-accommodation evidence, citing 15 portions of the trial transcript. Of those, testimony touching upon accommodations was allowed twice. The district court did not abuse its discretion in allowing Finan's introduction of reasonable-accommodation evidence.“

Finan, 565 F.3d at 1080 (citing Kells v. Sinclair Buick-GMC Truck, Inc., 210 F.3d 827, 834 (8th Cir. 2000) (“Failing to provide an employee with reasonable accommodations can tend to prove that the employer also acted adversely against the employee because of the individual's disability.”)).

The Finan case suggests that even though evidence might be most directly applicable to a cause of recovery that is precluded in the case, that evidence still may be admissible when it is probative of elements of a recoverable claim made by a party and if the amount of this evidence is not so substantial that it risks confusing or misleading the trier of fact.