Labor & Employment Law Daily Wrap Up, DISCRIMINATION—DISABILITY—D.S.C.: Magistrate judge erred in applying disparate-impact analysis to EEOC’s disparate-treatment claim, (Apr 16, 2025)

By Marjorie Johnson, J.D.

Though the employee failed to satisfy the military’s fitness-for-duty standards due to his cancer and record thereof, this failure could still constitute the federal contractor’s non-discriminatory reason for terminating him.

A federal contractor who terminated a senior technician employed in connection to a contract with the U.S. Military based on a third-party provider’s determination that he was disqualified under federal “fitness for duty” standards because his cancer had not been in remission for 12 months won’t face trial on the EEOC’s claim of intentional discrimination under the ADA, but a jury will decide whether his record of a disability could have been accommodated by transferring him to another position. Rejecting the report and recommendation of the magistrate judge insofar as it applied the disparate impact analysis to the disparate treatment claim and finding no evidence of pretext, a federal court granted in part and denied in part the employer’s motion for summary judgment (EEOC v. Fluor Federal Global Projects, Inc., No. 6:22-cv-01960-JDA (D.S.C. Apr. 14, 2025)).

Federal fitness-for-duty requirements. Fluor Federal Global Projects, Inc. (FFGP) hired the employee in 2010 as a food services worker for a project in Afghanistan, and he was later elevated to a senior technician position. His employment was in connection with a contract with the U.S. Military, which required compliance with Department of Defense and U.S. Central Command (CENTCOM) “fitness for duty” standards set forth in CENTCOM’s “MOD 13 Amplification of the Minimal Standards of Fitness for Deployment.”

Requirements regarding cancer. The MOD 13 Amplification included a non-comprehensive list of specific medical conditions that were disqualifying in the absence of a waiver. It further provided that “a waiver request cannot be submitted for individuals with certain disqualifying medical conditions,” which included cancer. The document also stated that “[a]ll cancers should be in complete remission for at least a year before a waiver is submitted.”

One-year remission requirement. The employer contracted with a third-party provider (TPP) to conduct fitness-for-duty exams and to make determinations as to whether a waiver request could or would be submitted. With respect to cancer and for purposes of MOD 13, the TPP considered the date of the removal of the cancer to be the onset of remission and would not seek a waiver until the cancer had been removed for at least one year. During the relevant period, the TPP did not make any waiver submissions on behalf of employees or prospective employees for cancer that had not been in remission for at least one year.

Cancer tumor removed. In the summer of 2019, the employee received a diagnosis of prostate cancer and on August 12 he underwent successful surgery to remove his prostate. On August 27, he submitted medical documentation stating that he was cleared to return to work and that the doctor found “[n]o evidence of disease outside of the prostate,” which the employer forwarded to the TPP.

On August 28, the TPP notified the employer’s HR specialist that the employee was “medically disqualified” under MOD 13 and not cleared for duty because “[a]ll cancers must be in complete remission for 12 months before clearance can be considered.” On August 29, the employer terminated his employment and forwarded the TPP’s email to him. He objected and requested that the employer “recommend further inquiry on this matter.” The HR specialist forwarded his message to TPP, which responded that, “MOD 13 is exceptionally clear: all cancers must be in complete remission for 12 months before a waiver will be considered. This is a CENTCOM issue, not ours.”

Asked for transfer. The employee then advised an employer representative that even if he was not fit to continue in Afghanistan, he was otherwise fit to work and asked if there were positions for him in the United States. She responded that they had “to follow protocol” and they would do “whatever [the TPP] said.”

The lawsuit. The EEOC filed this action on the employee’s behalf alleging disability discrimination, and he subsequently intervened and added a failure-to-accommodate claim. The parties filed cross-filed motions for summary judgment, and the magistrate judge issued a report and recommendation (R&R).

Disparate impact analysis inapplicable. The court first found that the magistrate judge erred in recommending that the employer’s motion for summary judgment be denied as to the disparate treatment claim based on a disparate impact analysis. Instead of applying the McDonnell Douglas burden-shifting framework, the magistrate examined whether the employer relied on a policy that “screened out” the disabled and whether it established a business necessity defense. As the Supreme Court ruled in Raytheon Co. v. Hernandez, “such an analysis is inapplicable to a disparate-treatment claim.”

No evidence of pretext. “That [the employee’s] cancer and record thereof were the reason that he did not satisfy the fitness-for-duty standards does not disqualify [his] failure to satisfy those standards from constituting a legitimate, nondiscriminatory reason for his termination,” explained the court. Therefore, the only remaining question was whether a triable issue existed as to pretext. There was no such genuine dispute here since it was undisputed that under the relevant contract, the TPP was solely responsible for making fitness-for-duty determinations, including whether to apply for waivers, and that it did not submit any waivers under MOD 13 for people whose cancer had not yet been in remission for 12 months.

Record of disability. However, the magistrate judge properly recommended denying the employer’s motion for summary judgment regarding the failure-to-accommodate claim. In its objections, the employer first argued that the employee could not show that he had a record of being substantially limited in a major life activity. Unconvinced, the court found “that [the employee] underwent surgery to treat his cancer warrants a reasonable inference that it negatively affected his cell growth as compared to most people in the general population.” Thus, a jury would decide whether the history of his cancer and cancer surgery amounted to a record of impairment so as to satisfy the ADA’s definition of disability.

Accommodation request and availably. The court also rejected the employer’s contention that the employee never requested an accommodation since the record showed it knew that his cancer history was the reason he was not meeting the fitness-for-duty standards that applied to his current position and that he asked to be assigned to another position. A triable issue also existed as to whether reassigning him to a vacant position was an available accommodation. Though the employer argued that an employer’s duty to accommodate a “record of” a disability is intended to allow for follow-up appointments or other items related to the past disability, the language in the regulations concerning accommodating a need for follow-up appointments concerns only one “example” of the possible reasons an employee may need an accommodation for a record of disability. “It does not purport to set out an exhaustive list of the circumstances under which such an accommodation may be needed,” stated the court.

Finally, the employee’s resume at least created a triable issue as to whether he was qualified to perform the essential functions of a vacant position that did not have the same fitness-for-duty requirements. Because a fact issue existed as to the availability of reassignment as an accommodation, the court did not address whether a fact issue also existed as to whether applying for a waiver to the MOD 13 requirements to allow him to continue to work in his then-current position was also an available accommodation.

The case is No. 6:22-cv-01960-JDA.

Judge: Austin, J.

Attorneys: Iriel Dominique Jones for the EEOC. Daniel Louis Russell, Jr. (Covington and Burling) for Fluor Federal Global Projects Inc.

Companies: Fluor Federal Global Projects Inc.

Cases: DisabilityDiscrimination Discrimination Discharge SouthCarolinaNews