Under the American with Disabilities Act (“ADA”), employees are protected from discrimination based upon a disability. A disability is a physical or mental impairment that substantially limits one or more of the individual’s major activities. It could also be a record of such an impairment or being regarded as having such an impairment. Just having a physical or mental impairment is not enough to afford protection. The employee must show that the impairment substantially limits a major life activity.
On October 21, 2011 the First Circuit Court of Appeals ruled that an employee with epilepsy had not shown that he was disabled and therefore entitled to protections under the ADA. The appeal was in the case of Pedro L. Ramos-Echevarria v. Pichis Hotel and Convention Center, et al. While the appeal was from the United States District Court for the District of Puerto Rico, that Appeals Court also hears appeals from New Hampshire and Massachusetts federal trial courts. Therefore, this decision is legal precedent for Massachusetts and New Hampshire employers and employees alike.
In that case, Ramos claimed, among other things, that he was discriminated against during his work at Pichis by not being promoted or offered a full-time position after having been initially hired as a part-time kitchen assistant. Ramos suffers from epilepsy for which he takes medication to control his condition. On average, Ramos experiences between 9 to 16 focal seizures, which he refers to as episodes, each week. During a typical episode, Ramos sees an aura before his body begins convulsing for about 8 to 15 seconds. He does not lose consciousness, but his cognitive abilities are, however, impaired during the episode and sometimes for a short time afterwards.
Ramos worked for Pichis as a part time kitchen assistant since 1999 assisting the chef with food preparation, and he was able to show some evidence that Pichis may have denied him a promotion for full-time employment based upon his epilepsy. The federal trial court in Puerto Rico and the First Circuit Court of Appeals focused their decision as to whether or not his particular epilepsy rose to a level of a disability to be protected under the ADA and they determined that it was not and therefore Pichis was granted summary judgment and the case will not go to trial.
The Court first noted that establishing a disability under the ADA is an individualized inquiry. Therefore, this case does not stand for the proposition that epilepsy is not a disability under the ADA. It depends on the effect of that epilepsy on the individual after taking proper medication.
Ramos claimed that his epilepsy substantially limited him from performing a major activity; that being working. Other than showing that he had to stop working temporarily when he had an episode, Ramos introduced no evidence showing how his illness affected his ability to work. While he produced a medical certificate from a doctor indicating that he could not perform certain activities such as driving, climbing without protection, and using certain instruments, he is not required to engage in any of those tasks during the course of his job as a kitchen assistant. Further, the Court noted that driving and climbing are not major activities under the ADA and the inability to do so due to an impairment would not constitute a disability. The Court noted that in Ramos’ deposition when he was asked whether his medical condition significantly affected his work, he stated it did not, but he had to stop for a moment and go back to the activity he was engaged in again. He also acknowledged that he never applied for social security disability benefits because he feels capable of working. He had not claimed that Pichis regarded him as being disabled but only that he was disabled or had a record of disability. Had he, in fact, claimed that Pichis regarded him as being disabled and argued that while his impairment was not a disability, Pichis failed to promote him to a full time position because they erroneously regarded his epilepsy as something that substantially limited his work, then he would have had to prove that Pichis believed Ramos’ impairment was greater than it was which would still be a difficult burden for Ramos.
Since the Court ultimately found, based upon the record, there was no genuine issue of fact that Ramos’ impairment rose to the level of a disability under the ADA, the Court did not address whether Pichis discriminated against Ramos based upon his epilepsy and upheld the dismissal of the case and therefore Ramos does not have a chance to go to trial on his ADA claims.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].