Proof of Disability Discrimination
The Merit Systems Protection Board reversed its administrative judge in Southerland v. Department of Defense, 2011 MSPB 78 (8/25/11), finding that the AJ improperly applied a mixed-motive analysis in analyzing the disability discrimination claim.
Southerland had appealed a 30-day suspension and his subsequent removal for insubordination for failing to provide requested medical information when recovering from a work-related injury, AWOL, and failure to request leave in accordance with established procedures. The AJ reversed the agency’s suspension and removal actions, finding that Southerland had made efforts to supply the medical documentation and the AWOL and failure to follow leave procedures were minimal. The AJ also found disability discrimination because the agency would not have taken the same action in the absence of a discriminatory motive.
On appeal, the Board upheld the AWOL and failure to follow leave procedure charges, vacated the insubordination charge, and found that the AJ had improperly assumed that Southerland was disabled and improperly applied a mixed-motive analysis in analyzing the disability discrimination claim. Because there was conflicting testimony in regard to Southerland’s attempts to obtain medical documentation, a remand was ordered to make a credibility determination. The Board also found that the medical documentation of record does not establish that Southerland is disabled under the regulatory standards in 29 CFR part 1630, implementing the ADA Amendments Act of 2008 (ADAAA), because of the lack of information as to the severity or duration of his lifting impairment or the expected permanent or long-term impact of his impairment.
The Board determined that according to the U.S. Court of Appeals decision in Serwatka v. Rockwell Automation, Inc., 591 F.3d 957 (7th Cir. 2010), Southerland must prove that the agency would not have take the action “but for” his actual or perceived disability. The Serwatka decision relied upon the Supreme Court’s decision in Gross v. FBI Financial Services, Inc., 129 S.Ct. 2343 (2009), which stressed the express incorporation of the mixed-motive framework into Title VII but not the ADAAA.