Epilepsy and the ADA

Epilepsy and the ADA

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 working there. 

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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