Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—1st Cir.: Oil service tech, fired on day he was cleared to return to work after knee surgery, has ADA claims revived, (Jan 17, 2025)

By Kathleen Kapusta, J.D.

“This case raises important questions about the governing standard for disability claims under the Americans with Disabilities Act (ADA), and the relationship between discrimination, retaliation, and failure to accommodate claims under that statute.”

Reversing summary judgment against the ADA claims of an oil service technician who was terminated on the day he was supposed to return to work after surgery for a knee injury, the First Circuit found the court below overlooked the statute’s operative standards in evaluating whether he had provided sufficient evidence to show his injury qualified as a disability and did not fully credit the legal independence of his retaliation and failure-to-accommodate claims. The appeals court, however, affirmed summary judgment against his state-law wrongful discharge claim as he failed to point to any well-defined public policy supporting his view that biofuel is dangerous (Sutherland v. Peterson’s Oil Service, Inc., No. 24-1431 (1st Cir. Jan. 16, 2025)).

Knee injury. When he was hired by the family-run oil delivery and service company as a service technician in August 2019, the parties agreed that in exchange for not having to do installation work or cover night shifts, he would work Saturdays during the winter busy season. Two months after he was hired, he injured his knee. About a month after that, he began complaining that his knee was so swollen, he could barely bend it. Around that same time, a doctor placed him on “knee rest” for several days.

Mercy. In late November, he told his supervisor that his meniscus in his right knee was badly torn, his left knee wasn’t much better, he was in excruciating pain, and he was asking “for a bit of mercy” to have his hours cut back to 40 per week. There was no evidence his request for a 40-hour week was ever implemented, however.

In December, the employee told the company he would be having knee surgery and provided a letter from his surgeon recommending that he be allowed to work part-time until further notice. Despite this, the company continued to schedule the employee for regular days and to assign him to calls that he believed exceeded his physical limitations. When he asked to be removed from those jobs, the company reassigned him.

Termination. The employee had surgery in late January 2020 and was granted his request for medical leave to recover. In early April, he informed the company that he was cleared to return to work on April 20. He never received a response. While the employee claimed he was never formally terminated, a termination letter was provided during discovery. It was dated May 26, stated that he was terminated “due to the lack of work during the COVID-19 pandemic,” and listed the date of “effective termination” as of April 20, the day he told the company he had been cleared to return to work.

Clean heat complaints. During his employment, the employee had also complained, including to customers, about one of the company’s products, “Clean Heat,” which had a higher biofuel content than standard home heating fuel. In March 2021, the company entered into a consent decree with the Commonwealth regarding Clean Heat after a state investigation found the company had violated two state consumer-fraud statutes because it had not disclosed the actual percentage of biofuel in the product.

Lower court proceedings. After he was fired, the employee sued, asserting disability discrimination claims under the ADA and state law and a claim for wrongful discharge in violation of public policy. The district court granted summary judgment against all counts.

Disability. On appeal, the First Circuit addressed the district court’s determination that the employee’s knee injury did not qualify as a disability as a matter of law. According to the lower court, it could not be an impairment because it was only temporary. But in enacting the ADAAA, the appeals court observed, Congress rejected previous Supreme Court precedent and concluded that a temporary injury can qualify as a disability if it is sufficiently severe. Noting here that the employee injured his knee in October 2019 and was not cleared to return to work until April 2020, the appeals court found the mere fact his injury was not permanent did not preclude it from being considered a disability under the ADA.

Medical evidence. And while the district court also faulted the employee for failing to produce sufficient medical evidence to prove his impairment, the First Circuit emphasized that “our precedent does not require such evidence.” Nor is medical evidence always necessary to prove an impairment constitutes a "substantial limitation" on a major life activity. “In our view, a lay jury would have no difficulty ‘grasping the connection between a knee injury and problems in conducting major life activities such as standing, walking, and bending.’”

While the appeals court explained that an employee cannot rely on "wholly conclusory allusions to substantially limited performance of major life activities" to avoid summary judgment, here, in contemporaneous messages to his dispatcher and supervisor, the employee stated that at times his knee hurt so badly he wished his leg would be "ripped off," mentioned many times that his knee was so swollen he could not bend it, and noted that after working long days, he would have to ice his knee to reduce the swelling enough to use it at all. This, said the court, was enough evidence his knee injury was an "actual disability" to survive summary judgment.

Record of disability. For the same reasons, the court found the employee demonstrated a record of disability for the period following his recovery from surgery. A record of disability, the court explained, “may be satisfied by a showing that the plaintiff had a disability in the past (even though he no longer suffered from that disability when the allegedly discriminatory action took place)."

Regarded as. He also sufficiently established that he was regarded-as disabled. While the district court held that a regarded-as claim required the employee to show the company viewed him as having an impairment that substantially limited his major life activities, under the ADAAA, the court stated, "[i]t is not necessary for [the employee] to prove that [his] impairment limits or is perceived to limit a major life activity" to proceed on a regarded-as claim.

Qualified individual. Disagreeing also with the district court’s conclusion that the employee was not a qualified individual under the ADA because installation work and night shifts were essential functions of his position, the court noted that he was hired on the express understanding that he would not perform those duties and other service technicians either did not perform installations or take night shifts. Although he appeared to be the only technician that did not have to do both, a jury could find that the company did not universally require its technicians to perform these duties and could thus conclude that the company did not view them as essential.

Adverse employment action. Although the district court did not reach whether the employee suffered an adverse action, the appeals court, noting that the effective date of his termination was the same date he was cleared to return to work, found this was enough to infer a causal connection. Because the employee provided enough evidence to survive summary judgment on his prima face case of discrimination, the court remanded to the district court to consider whether the company put forward a legitimate, nondiscriminatory reason for firing the employee and whether he sufficiently established pretext.

Retaliation. As to the employee’s retaliation claim, the appeals court noted that because the district court concluded it was duplicative of his failure-to-accommodate claim, it did not consider the merits of the claim. But the crux of his retaliation claim, observed the court, is that he was fired because he sought an accommodation for his knee injury and the success of that claim did not depend on his accommodation claim as a jury could find the company was initially willing to accommodate his request for reduced hours and medical leave but later fired him in retaliation for having availed himself of those accommodations. Accordingly, the court remanded for consideration of the merits of this claim.

Failure to accommodate. In rejecting the employee’s failure-to-accommodate claim, the district court found the employee did not put the company on notice that his request for a reduced work schedule was related to his knee injury because his request predated his doctor's note about surgery for that injury. However, in his November 2019 text message to his supervisor, the employee stated that he was requesting a reduced schedule because his meniscus was "torn pretty bad" and he was in "excruciating pain." Noting that the parties had previously discussed the employee’s knee and his work schedule, the court found this sufficient for a jury to find the company was on notice the employee was requesting a reduced work schedule because of his knee injury.

As to the district court’s conclusion that the accommodation request was not reasonable when considered together with his other job-related preferences, the appeals court explained that his previous request not to do installation work and night shifts could not be considered as part of his disability accommodation request. The company agreed that the employee would not have to do this type of work when it offered him the job, which was well before his knee injury.

The district court also erred in concluding that the employee’s request for a reduced-hour work schedule was unreasonable, the First Circuit found, noting that Congress has identified part-time or modified work schedules as examples of possible reasonable accommodations and the company had part-time employees on staff. Therefore, the court also remanded this claim to the district court.

Wrongful termination. Regarding the employee’s claim he was wrongfully terminated in violation of public policy because of his opposition to Clean Heat, the appeals court agreed with the district court’s grant of summary judgment to the company but for a different reason. Though the district court found no evidence the employee reported his concerns to anyone outside the company, the appeals court, noting that he informed customers about his views, concluded that his claim failed because he did not identify any clear or well-defined public policy supporting his personal views that biofuel is dangerous.

He testified, instead, that based on his experience, biofuel was more likely than other types of fuel to leak out of a non-combustion oil burner and oil leaks, in turn, could pose fire hazards. But he did not testify that he knew of any injury resulting from improper biofuel usage. Further, the Massachusetts Attorney General's Office investigated the company's biofuel products and concluded that it was violating consumer fraud laws but not any safety-related state laws or policies.

Noting that the employee, rather than citing any statute, appeared to rely on oil burner service manuals as his source of public policy, the court affirmed summary judgment against this claim.

The case is No. 24-1431.

Judge: Rikelman, J.

Attorneys: Lucas Newbill (Law Offices of Lucas Newbill) for Jesse Sutherland. Brian T. Dougan (Cifra Dougan) for Peterson's Oil Service. Jeremy D. Horowitz for amicus curiae Equal Employment Opportunity Commission.

Companies: Peterson’s Oil Service, Inc.

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