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Partial Deafness May Not Qualify Under Americans with Disabilities Act Amendments Act

The Americans with Disabilities Act was amended in 2008 in part as a response to narrow judicial interpretation of the word “disabilities.” The amended version, the Americans with Disabilities Act Amendments Act (hereinafter “ADAAA”), expands the definition of “disability,” construing a broad new range of coverage for groups previously denied protection under the Act including but not limited to those suffering from: epilepsy, diabetes, multiple sclerosis, major depression and bipolar disorder. Although the ADAAA ‘s enactment overturned United States Supreme Court rulings with respect to the definition of “disability,” a recent Opinion from the United States District Court for the Eastern District of Pennsylvania, Mengel v. Reading Eagle Company, No. 11-6151, (E.D.  Pa.  March 29, 2013) demonstrates that the federal judiciary is undeterred by the ADAAA’s expansive definition of “disability” as they continue to place their own limitations on the ADAAA through judicial interpretation.

Christine Mengel was employed by a newspaper centered in Berks County, Pennsylvania, the Reading Eagle for approximately eight years, being from 2001 to 2009.  From 2001 to 2008, Ms. Mengel’s immediate supervisor gave her satisfactory performance evaluations.  In 2007, Ms. Mengel underwent surgery to remove a brain tumor the result of which was deafness in one ear and balance problems. Although Ms. Mengel was able to continue performing her job without accommodation she noted increased difficulty concentrating but nonetheless received a satisfactory performance review in 2008. During a meeting, which occurred on or about September 2008 between staff members including management, Ms. Mengel was reprimanded for her inability to “follow instruction” and was called a “tar baby,” a term which Ms. Mengel noted “made [her] feel small.”

In January 2009, the Reading Eagle performed a staff reduction, utilizing a ratings matrix to eliminate the lowest scoring employees. When considering such factors as work quality, versatility, inter-personal skills, productivity, disciplinary record, performance evaluations and tenure, Ms. Mengel scored the lowest with the next lowest score more than doubling her own. Shortly after being informed of her impending layoff in March 2009, Ms. Mengel filed a complaint with respect to the “tar baby” comment, which had been uttered nearly six months prior. On or about April 20, 2009, Ms. Mengel filed a complaint with the Employment Equal Opportunity Commission (EEOC) for gender discrimination, disability discrimination, retaliation and violation of the Pennsylvania Human Rights Act (PHRA).  The Reading Eagle filed a Motion for Summary Judgment, which the Court granted, basing its decision, in part, on the fact that Ms. Mengel failed to present a prima facie case of discrimination under the ADAAA.

In order to establish a case of discrimination under the Act an employee must show:

(1)       He or  she is a disabled person within the meaning of the Act;

(2)       He or she is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and

(3)       He or she has suffered an otherwise adverse employment decision as a result of discrimination.

Once an employee demonstrates each of these elements, the burden of proof then shifts to the employer to show that a “legitimate, nondiscriminatory reason for the adverse employment action existed.” Raytheon Co. v. Hernandez, 540  U.S.  44, 49 (2003). In this case, the Court found that although Ms. Mengel was qualified to perform the essential functions of her job as evinced by her prior performance reviews (element 2) and that termination is an adverse employment determination (element 3) for purposes of the Act’s application that she was not disabled (element 1).

While deafness has been found to qualify as a disability because “deafness substantially limits hearing,” and hearing is a major life activity [See 29  C.F.R.  §  1630.2(j)(3)(iii); Howze v. Jefferson Country Committee for Economic Opportunity.  No. 2:11-CV-52-VEH, at *11 (N.D. Ala. Aug. 28, 2012)] , here the Court found partialdeafness was not a disability under the ADAAA because although Ms. Mengel experienced difficulty when in a noisy environment this did not limit a major life activity and as such is not a “disability” for purposes of the ADAAA. Also noteworthy was the Court’s determination that Ms. Mengel’s retaliation claim failed because “it is not reasonable for an employee to believe a single, potentially racist remark could violate Title VII.”

If you would like to discuss a situation you believe is similar to Ms. Mengel’s, please contact one of our experienced employment lawyers at The Pagano Law Firm.

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