Plaintiff, Though Not Actually Disabled, Presented Triable Issue Of Fact As To Whether Employer Regarded Him As Such
BRUNKER v. SCHWAN'S HOME SERVICE (October 22, 2009)
Frank Brunker was employed as a Route Manager for Schwan's Home Service, a home-delivery food service company. Brunker sold and delivered the company's products to its customers. Beginning in early 2003, Brunker began experiencing shaking, dizziness, headaches, etc. -- later to be diagnosed as multiple sclerosis. On his doctor's advice, he took two months disability leave, returned to light duty for one month, and then returned to unrestricted work. Several months later, he decided to take some time off for additional tests and evaluation. Around that time, he was disciplined on several occasions for failure to run a route, failure to adhere to a dress code, and writing a check with insufficient funds. When Brunker returned with his diagnosis of multiple sclerosis, the company fired him for unsatisfactory performance, but backdated his termination to the day before he left. Brunker brought suit under the Americans with Disabilities Act. The court granted summary judgment to Schwan's. Brunker appeals.
In their opinion, Judges Cudahy, Flaum and Rovner affirmed in part, vacated and reversed in part and remanded. On the merits, the Court first addressed the issue of whether Brunker created a genuine issue of fact as to whether he was "disabled." Under the ADA, one is "disabled" if one has an impairment which substantially limits a major life activity -- or if one is regarded as having such an impairment. The Court agreed with the district court that Brunker failed to show a substantial limitation on a major life activity -- the evidence showed only an intermittent or occasional impairment. However, the Court concluded that the evidence, including the discipline and the backdating of his termination, was sufficient to show that Schwan's regarded Brunker as disabled. Thus, the Court remanded the discrimination claim for additional proceedings. The dismissal of the failure to accommodate claim, however, was affirmed by the Court. The Court found no issue of fact with respect to Schwan's offering of an accommodation. The Court also resolved numerous discovery and sanction disputes.
