More than 25 percent of over-the-road truck drivers suffer from obstructive sleep apnea, and those who forego treatment considerably raise their risk of being involved in a fatigue-related motor vehicle crash, according to a University of Minnesota study published last year. Sleep apnea is a common and serious disorder that causes brief interruptions of breathing during sleep. Whether or not driving is part of one’s job in waste management, poor sleep patterns can affect workplace performance.
William McDonald was fired from his job with the Town of Brookline, Mass., for unjustified absences and inadequate documentation of sick leave. He sued his former employer, alleging that his termination violated the federal Americans with Disabilities Act (ADA). He claimed that his poor performance stemmed from sleep apnea, a disability that the town allegedly failed to accommodate. After a six-day trial, a jury found in favor of the town. On appeal, he was again rebuffed.
In 2003, McDonald joined the town's public works department with duties and assignments spread among three subdivisions—highway, traffic and sanitation. Although receiving generally positive performance reviews during his first years on the job, McDonald struggled with substance abuse issues and, beginning in 2008, began to receive complaints about his use of sick leave.
His supervisor repeatedly asked him for additional documentation from a physician to justify his absences. On one occasion McDonald submitted a doctor's note for a day when he was a no-show, but later he admitted that his absence was due to a mandatory court appearance related to a previous drug-related arrest. In September, 2008, he was suspended from work for three days for what the town claimed was sick leave abuse.
The critical events in McDonald's employment happened in the harsh winter and spring of 2009. Although he clocked a significant amount of overtime hours to assist with snow removal efforts, he was frequently absent from work. In January, he took a number of sick days and bereavement leave to tend to his father, who had been seriously injured in an accident and ultimately passed away. The following month he called in sick because he was experiencing "flulike symptoms" and was feeling "run down." On February 18, he went to a hospital emergency room and complained that he felt tired, achy and was experiencing "sweats."
The following day the commissioner of public works directed McDonald to appear at a disciplinary hearing on March 2, to address "unsubstantiated questionable sick leave,” warning that he faced possible termination for these violations. McDonald immediately visited his primary care physician for documentation supporting his absences, and renewed his complaints
about various symptoms (nausea, vomiting, diarrhea and night sweats) that he had previously mentioned at the emergency room. About same time, he also visited a psychologist for difficulties that he was having with sleeping. The psychologist referred him to a sleep study at a local hospital.
Upon his return to work, McDonald complained about his assignment to the sanitation division because he had difficulty "keeping up" with the physical nature of the tasks. On March 19, when he flatly refused to work, he was sent home.
His physician, reviewing the results from the sleep study, concluded that McDonald was suffering from sleep apnea, and suggested he see a sleep specialist. The doctor also wrote a note stating that McDonald was being treated for "fatigue and a related disorder" and that he should be performing "light duty for the foreseeable future." The town requested further information and documentation regarding the "medical reasons for the request for light duty" and told McDonald that he could not come back to work until such information had been received and until "a determination [has been] made as to your employment status."
On March 23, the town's assistant director of human resources sent McDonald a letter informing him of his rights under the Family Medical Leave Act (FMLA) and enclosing a form that McDonald could fill out if he wanted to apply for FMLA leave. McDonald, who had follow-up appointments scheduled with his physician and his sleep specialist on March 31 and April 2, respectively, did not reply to the March 23 letter until April 6, at which time he reiterated his request for light duty and enclosed the sleep study along with another copy of the note from his physician.
Throughout April McDonald continued to complain of fatigue. The sleep study caused the town to be concerned that he could become drowsy while operating heavy equipment. Meantime, officials continued to find his supporting documentation insufficient to justify his use of sick leave, and at times even found the information inconsistent and contradictory. The town eventually concluded that McDonald's symptoms stemmed from substance abuse withdrawal and that he was using sick leave as a cover for this problem. Notably, McDonald never disclosed his substance abuse issues to any medical professionals.
In mid-April, when McDonald had finally exhausted his available leave, the human resources department informed him in writing that the documentation he had submitted was insufficient and that he was subject to termination if he continued to be absent from work without permission. McDonald immediately responded that he would be submitting a comprehensive report from his physician once his follow-up appointments and evaluations were completed. On April 21, the public works department sent McDonald a letter saying that he would be considered absent without pay, which would legally allow the town to view him as having "voluntarily and permanently separated [himself] from employment” unless he submitted a completed FMLA leave request form or other sufficient documentation.
McDonald arranged for a follow-up appointment with the sleep specialist in early May and arranged to be fitted with a continuous positive airway pressure (CPAP) mask and machine to wear at night to address his sleep apnea. He was informed that the equipment would be delivered within a week, and the sleep specialist advised him that he could return to work in mid-May. Inexplicably, he did not respond to the April 21 letter nor did he contact anyone at the town to discuss his recent medical appointments and to address the town's warning that he would be deemed as having abandoned his position if he did not promptly provide either specific documentation or a completed FMLA leave request form.
Hearing nothing from McDonald, on May 12 the town notified him by letter that his employment was terminated and that he had the right to a hearing to challenge this decision.
He quickly responded by sending two letters to the town, one enclosing a FMLA leave request signed by his physician and attaching his sleep specialist's follow-up report from the May 2 visit, and the second requesting a post-termination hearing. His FMLA form requested an additional three months leave to adjust to the CPAP device, notwithstanding his sleep doctor's report stating that McDonald could return to work in mid-May.
At the hearing, McDonald did not offer any evidence or medical information. Afterwards, the town sent McDonald a decision letter upholding his termination, noting that he had not asked for a leave of absence and had offered no evidence at the hearing to rebut the town's position that he had voluntarily separated himself from his employment. Indeed, he had responded "correct" when asked if he viewed himself as having voluntarily abandoned his job.
McDonald filed suit in federal district court, alleging that the town had violated the ADA by discriminating against him on the basis of his sleep apnea disability, by denying him a reasonable accommodation, and by failing to engage in an interactive dialogue as required by the ADA. At the close of the six-day trial, McDonald’s attorney submitted proposed jury instructions that broadly defined “reasonable accommodation” to include “additional leave beyond that allowed in the leave policy” and an interactive process “[extending] beyond the termination of employment.”
The district court, however, did not include the quoted portions of McDonald's proposed instructions in its charge to the jury. Summarizing the employer's obligations under the ADA, the district judge instead informed the jury as follows:
While the [T]own does not have to provide a specific accommodation requested by the plaintiff, it has to provide a reasonable one within its existing working requirements and environment. It does not have to provide an accommodation that would create for itself an undue hardship that would cause increased costs, bad impact on other employees, constraints imposed by its workforce structure or the location of its several facilities, but it does have to make an effort to provide a reasonable accommodation to allow the disabled employee to perform work. The law contemplates that the process of arriving at a reasonable accommodation be accomplished by an interactive process between the employee and the employer who should identify the precise limitations resulting from the employee's disability and a potential accommodation appropriate to those limitations.
The jury found in favor of the town, concluding that it had not terminated McDonald on the basis of his disability nor did it fail to reasonably accommodate him and his disability. After the district court entered judgment against McDonald, his lawyers filed an appeal to the U.S. Court of Appeals for the First Circuit where they argued that the district court was wrong in not specifically instructing the jury as they had requested.
The three-judge appellate panel, however, sided with the district court: “The [court’s] decision not to include the specific language . . . was based on the sound principle that it is not incumbent on the trial judge to . . . outline to the jury all the evidence with respect to what constitutes a reasonable accommodation. * * * [A party] is not entitled to have a district court tailor the jury instructions to the most advantageous portions of the record.”
Affirming the verdict and judgment for the town, the appeals court noted that both parties had a full opportunity to present evidence and make arguments to the jury about what the town did or did not do.
“Our role is to evaluate whether the jury instructions as a whole adequately explained the law or whether they tended to confuse or mislead the jury on controlling issues,” the panel noted. “We think the instructions met this standard.”
Barry Shanoff is a Bethesda, Md., attorney and general counsel of the Solid Waste Association of North America.