Today we discuss an unfortunate result which I am sorry
to say was the result of a plaintiff's strategic error.
In Ramos-Echevarria v. Pichis, Inc., 2011 U.S.
App. LEXIS 21302 (1st Cir. Oct. 21, 2011) [an enhanced version of this opinion is available to lexis.com
subscribers / unenhanced version available from lexisONE Free Case Law],
the First Circuit affirmed a summary judgment from the District Court of Puerto
Rico in favor of the defendant employer on an Americans with Disabilities Act
("ADA") claim based on a failure to promote.
The plaintiff was a part-time cook for the defendant's
restaurant who suffered from epilepsy. Due to his epilepsy, Plaintiff
suffered between 9-16 epileptic seizures per week, some occurring at
work. Due to he and his co-workers' familiarity with the symptoms,
Plaintiff managed to fulfill his duties without risking injuries over the
course of his tenure with defendant dating back to 1999. However,
Plaintiff testified that he was denied full-time employment based on his
epilepsy. Plaintiff noted not only direct statements about his condition made
by Defendant's owner at the time of his application for full-time work, but
also additional statements made by the owner when Plaintiff first started
Plaintiff made a tactical error in claiming only that he
was disabled, rather than additionally claiming that Defendant "perceived" him
as disabled. Under the ADA, perceived disability is just as actionable as
actual disability. Relying only on actual disability, the First Circuit
went through a multi-factor analysis and concluded that since Plaintiff could
totally perform his job and was not limited in any major life activity, that he
was not disabled and thus could not set forth a prima facie case of ADA
discrimination. If Plaintiff had alleged perceived disability, he arguably
could have proceeded on a direct evidence theory based on his boss's
comments. It's hard to understand what this fella's counsel was thinking....
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