Downing v. Department of Finance and Administration, 4:15-cv-570-DPM. (2018)
Court: District Court, E.D. Arkansas
Number: infdco20180329884
Visitors: 9
Filed: Mar. 28, 2018
Latest Update: Mar. 28, 2018
Summary: ORDER D.P. MARSHALL, JR. , District Judge . The Court much appreciates the parties' endorsement of the definitions/questions procedure, as well as their comments, objections, and suggestions on the particulars. Attachment one is a responding redline showing the changes the Court is inclined to make. Attachment two is a clean version. We'll talk further on these points this afternoon at the pretrial. So Ordered. Attachment One • Essential job functions are the fundamental duties of Do
Summary: ORDER D.P. MARSHALL, JR. , District Judge . The Court much appreciates the parties' endorsement of the definitions/questions procedure, as well as their comments, objections, and suggestions on the particulars. Attachment one is a responding redline showing the changes the Court is inclined to make. Attachment two is a clean version. We'll talk further on these points this afternoon at the pretrial. So Ordered. Attachment One • Essential job functions are the fundamental duties of Dow..
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ORDER
D.P. MARSHALL, JR., District Judge.
The Court much appreciates the parties' endorsement of the definitions/questions procedure, as well as their comments, objections, and suggestions on the particulars. Attachment one is a responding redline showing the changes the Court is inclined to make. Attachment two is a clean version. We'll talk further on these points this afternoon at the pretrial.
So Ordered.
Attachment One
• Essential job functions are the fundamental duties of Downing's job. Marginal functions are not essential functions of the job.
• Equivalent means virtually identical in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties, skill, effort, responsibility, and authority.
• An actual disability is a physical or mental impairment that substantially limits one or more major life activities.
— Substantially limits is a broad term. An impairment can be substantially limiting even though it doesn't prevent Downing from performing a major life activity. Impairments or effects of impairments that last (or are expected to last) less than six months may be substantially limiting. In deciding whether an impairment substantially limits a major life activity, you should compare Downing's ability to perform the major life activity with an average person's ability.
— Major life activities include (but aren't limited to) performing manual tasks, walking, standing, lifting, bending, and working.
• Downing was regarded as having a disability if he had an actual or perceived physical impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.
— Downing cannot be regarded as having a disability if his impairment was transitory and minor.
— A transitory impairment is one with an actual or expected duration of six months or less. (This is unlike an actual disability, which doesn't have a time limit.)
• Downing's disability (whether actual or perceived) was a motivating factor if that disability played a part in the Department's decision to fire Downing.
• An accommodation is a modification to the work place that allows a person with a disability to perform the essential functions of the job or allows the person to enjoy the same benefits and privileges as an employee without a disability.
• A reasonable accommodation is one that could reasonably be made under the circumstances and may include (but is not limited to): job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; and other similar accommodations. Reasonable accommodation does not include creating a new position or bumping another employee in order to reassign a disabled employee. Reasonable accommodation also does not necessarily mean the accommodation requested or preferred by Downing.
• Undue hardship means significant difficulty or expense to the Department. Some things to consider are:
— The nature and cost of the accommodation;
— The number, type, and location of the Department's various facilities;
— The financial resources of the Department's facility that would be involved in providing the accommodation; the number of employees at that facility; and the overall impact of the accommodation on that facility;
— The financial resources and size of the Department itself;
— The type of work the Department performs, including the structure and functions of the Department's workforce.
LIABILITY QUESTIONS
1. What are the essential functions of Downing's job at the Department before he took leave? _____________________________________________ ______________________________________________________________________________ ______________________________________________________________________________
2. Was it essential pre leave that Downing lift fifty pounds or more.
Yes ___ No ___
3. What were the essential functions of Downing's job at the Department after he returned from leave? _______________________________________ ______________________________________________________________________________ ______________________________________________________________________________
4. Was it essential post leave that Downing lift fifty pounds or more.
Yes ___ No ___
5. Based on your answers to Questions 1 through 4, compare the essential functions of Downing's job before and after he took leave. Consider whether the pre leave and post leave jobs were substantially similar in skill, effort, responsibility, and authority. Are there any material differences, or were the jobs substantially the same?
1. Were Downing's pre-leave and post-leave jobs equivalent?
Yes ___ No ___
If you answered "no," would the Department have made the same changes to Downing's pre-leave job even if Downing had not taken FMLA leave?
Yes ___ No ___
6. 2. When Downing returned from leave, was he able to perform the essential functions of his pre-leave job?
Yes ___ No ___
7. 3. Did Downing have an actual disability?
Yes ___ No ___
If you answered "yes/' did the Department know about Downing's disability?
Yes ___ No ___
8. 4. Whether Downing was actually disabled or not, did Bob Haugen or David Justice regard Downing as having a disability?
Yes ___ No ___
9. 5. At the time Downing was fired, did his hip-related restrictions prevent him from being able to perform any essential job functions?
Yes ___ No ___
10. 6. Was Downing fired solely because of an actual or perceived disability?
Yes ___ No ___
If you answered "yes" to Question 10 6, skip Question 11 7.
11. 7. Was Downing's actual or perceived disability a motivating factor in the Department's decision to fire Downing?
Yes ___ No ___
If you answered "yes," would the Department have fired Downing even if it had not considered his disability?
Yes ___ No ___
Answer the remaining Questions 12, 13, 14, 15, & 16 only if you found (see Question 7 3) that Downing was actually disabled and that the Department knew it.
12. 8. After returning from leave, did Downing seek an accommodation for any disability?
Yes ___ No ___
13. 9. At the time Downing was fired, could he have performed the essential functions of his job with a reasonable accommodation?
Yes ___ No ___
If you answered "yes," would providing the accommodation have created an undue hardship on the Department?
Yes ___ No ___
14. Did the Department make a good faith effort to accommodate Downing after he returned from leave?
Yes ___ No ___
15. After Downing returned from leave, was a work schedule other than the new schedule possible Without creating an undue hardship on the Department?
Yes ___ No ___
16. 10. If you conclude that Downing requested an accommodation (see Question 128), was he fired solely because he sought that accommodation?
Yes ___ No Inapplicable __
Attachment Two
• Essential job functions are the fundamental duties of Downing's job. Marginal functions are not essential functions of the job.
• Equivalent means virtually identical in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. It must involve the same or substantially similar duties, skill, effort, responsibility, and authority.
• An actual disability is a physical or mental impairment that substantially limits one or more major life activities.
— Substantially limits is a broad term. An impairment can be substantially limiting even though it doesn't prevent Downing from performing a major life activity. Impairments or effects of impairments that last (or are expected to last) less than six months may be substantially limiting. In deciding whether an impairment substantially limits a major life activity, you should compare Downing's ability to perform the major life activity with an average person's ability.
— Major life activities include (but aren't limited to) performing manual tasks, walking, standing, lifting, bending, and working.
• Downing was regarded as having a disability if he had an actual or perceived physical impairment, regardless of whether the impairment limits or is perceived to limit a major life activity.
— Downing cannot be regarded as having a disability if his impairment was transitory and minor.
— A transitory impairment is one with an actual or expected duration of six months or less. (This is unlike an actual disability, which doesn't have a time limit.)
• Downing's disability (whether actual or perceived) was a motivating factor if that disability played a part in the Department's decision to fire Downing.
• An accommodation is a modification to the work place that allows a person with a disability to perform the essential functions of the job or allows the person to enjoy the same benefits and privileges as an employee without a disability.
• A reasonable accommodation is one that could reasonably be made under the circumstances and may include (but is not limited to): job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; and other similar accommodations. Reasonable accommodation does not include creating a new position or bumping another employee in order to reassign a disabled employee. Reasonable accommodation also does not necessarily mean the accommodation requested or preferred by Downing.
• Undue hardship means significant difficulty or expense to the Department. Some things to consider are:
— The nature and cost of the accommodation;
— The number, type, and location of the Department's various facilities;
— The financial resources of the Department's facility that would be involved in providing the accommodation; the number of employees at that facility; and the overall impact of the accommodation on that facility;
— The financial resources and size of the Department itself;
— The type of work the Department performs, including the structure and functions of the Department's workforce.
LIABILITY QUESTIONS
1. Were Downing's pre-leave and post-leave jobs equivalent?
Yes ___ No ___ If
you answered "no," would the Department have made the same changes to Downing's pre-leave job even if Downing had not taken FMLA leave?
Yes ___ No ___
2. When Downing returned from leave, was he able to perform the essential functions of his pre-leave job?
Yes ___ No ___
3. Did Downing have an actual disability?
Yes ___ No ___
If you answered "yes," did the Department know about Downing's disability?
Yes ___ No ___
4. Whether Downing was actually disabled or not, did Bob Haugen or David Justice regard Downing as having a disability?
Yes ___ No ___
5. At the time Downing was fired, did his hip-related restrictions prevent him from being able to perform any essential job functions?
Yes ___ No ___
6. Was Downing fired solely because of an actual or perceived disability?
Yes ___ No ___
If you answered "yes" to Question 6, skip Question 7.
7. Was Downing's actual or perceived disability a motivating factor in the Department's decision to fire Downing?
Yes ___ No ___
If you answered "yes," would the Department have fired Downing even if it had not considered his disability?
Yes ___ No ___
Answer the remaining Questions only if you found (see Question 3) that Downing was actually disabled and that the Department knew it.
8. After returning from leave, did Downing seek an accommodation for any disability?
Yes ___ No ___
9. At the time Downing was fired, could he have performed the essential functions of his job with a reasonable accommodation?
Yes ___ No ___
If you answered "yes," would providing the accommodation have created an undue hardship on the Department?
Yes ___ No ___
10. If you conclude that Downing requested an accommodation (see Question 8), was he fired solely because he sought that accommodation?
Yes ___ No Inapplicable __
Source: Leagle
