Courts

Exploring The Limits of “Disability” and “Reasonable Accommodation” under the Missouri Human Rights Act

In a recent decision, the Missouri Court of Appeals for the Western District addressed and clarified Missouri case law and regulations on significant issues related to disabilities and reasonable accommodations under the Missouri Human Rights Act (“MHRA”). See Sherry v. City of Lee’s Summit, Mo., WD83635, WD83671 (Mo. App. W.D. Mar. 9, 2021). Two of these issues were:

  1. whether an extended leave of absence may be a reasonable accommodation that an employer must provide; and
  1. whether temporary recoverable illnesses may qualify as “disabilities” under the MHRA.

After carefully reviewing and reciting the evidence in the record before it, the Court ultimately answered “yes” to both questions.

Background

In Sherry, an employee—James Sherry (“Sherry”)—sued his former employer—City of Lee’s Summit (“City”)—for disability discrimination after the City terminated his employment. Sherry had worked for the City in its water department for 14 years, from July 2003 to July 2017.

During his employment, he had “several serious illnesses,” including prostate cancer (in 2005) and acute pancreatitis (in 2016)—that is, conditions which, in turn, made him “more prone to illness.” Sherry tried to work through symptoms of these conditions (which would come and go), but would visit the hospital or seek treatment when they became severe. Such treatment or visits usually lasted two days at a time.

In the fall of 2016, Sherry underwent gall bladder surgery to address his pancreatitis symptoms. It was only partially successful for a period of time. His doctor recommended another form of surgery, but Sherry delayed this second surgery because he ran out of leave time at work.

In June 2017, Sherry contracted an E. coli infection. He had “serious symptoms including fever, vomiting, chills, and achiness that were different from his pancreatitis symptoms.” Nonetheless, he was hospitalized and placed in intensive care. During this stay, his doctors found an abscess on his liver, which needed to be drained. Draining the abscess and healing therefrom was expected to take 6 weeks.

Sherry provided medical documentation to the City on the issue so that he could take sick leave and FMLA leave. The City had several policies in place for sick or disabled employees: vacation time, sick leave, comp time in lieu of overtime, FMLA leave, short-term disability leave, and discretionary leave.

By July 10, 2017, however, Sherry had exhausted all forms of leave available to him, except discretionary leave. By City policy, discretionary leave was available as an option for employees who ran out of sick leave and FMLA leave. Nonetheless, the decision to grant such leave rested solely within the discretion of City management.

On July 12, 2017, Sherry’s wife (“Mrs. Sherry”) submitted all documentation needed to request discretionary leave. Consistent with the doctor’s expectation of a 6-week recovery, Mrs. Sherry asked for discretionary leave for Sherry until August 29, 2017. Two days later, the City denied the request as “not in the City’s best interests” in that Sherry had a long record of impairments, did not know when he would return, and the City did not want to leave open his position indefinitely. Accordingly, the City terminated Sherry.

Mrs. Sherry then asked if her husband could later be reinstated at his prior pay rate and preserve his seniority. The City said, if he were later rehired, he would have to accept a lower beginning pay rate (i.e., $13 per hour instead of $24 per hour) and further claimed the union would file a grievance if they paid him otherwise. But had Sherry been granted discretionary leave, he would have retained his position and pay rate upon return.

After his termination, Sherry went ahead with the second surgery he had delayed, and soon thereafter found new employment, albeit at a rate lower than his pay rate at the City. The City did not replace Sherry until about a year later.

Sherry then sued under the MHRA for disability discrimination. The case proceeded to trial. The jury returned a verdict in favor of Sherry: $300,000 in actual damages, $220,807 in attorneys’ fees, but no punitive damages or front pay. Both parties appealed.

Analysis: Was Sherry’s Requested Leave of Absence an Unreasonable Accommodation?

On appeal, the City argued Sherry failed to make a submissible case that he was “disabled” within the meaning of the MHRA because Sherry was “not able to perform the essential function of attending work regularly.” In doing so, the City relied heavily on a case—Medley v. Valentine Radford Comm., Inc., 173 S.W.3d 315 (Mo. App. W.D. 2005)—that observed, “[a]n employer is not required to put up with employees who do not come to work and is not required to provide indefinite leaves of absence.”

The Court expressly rejected the City’s argument that “a leave of absence is an unreasonable accommodation as a matter of law” and distinguished Medley. Of note, the Court stressed that the case before it, unlike Medley, involved a longer period of employment, involved “less indefinite” requests for leave in that Sherry’s leave request contained an estimated end date of August 29, 2017, and did not involve allegations or evidence that the employee misused leave procedures.

In a footnote, the Court was careful to note that its decision did not foreclose the possibility that a reasonable request for a leave of absence could, over time and changing circumstances, become unreasonable. Nonetheless, in this case, the leave requested by Sherry fit directly within the letter and spirit of the discretionary leave offered by the City, which the Court stressed as showing the City itself “deemed extended leave a reasonable accommodation in at least certain circumstances.”

Analysis: Was Sherry’s Condition a “Disability” or a “Temporary Recoverable Illness”?

The City also argued Sherry did not prove he had a “disability” under the MHRA because his E. coli infection was a “temporary recoverable illness”—not a substantially limiting impairment. To make this argument, the City compared his E. coli infection to a broken leg in an automobile accident, which would also take 6-8 weeks for recovery.

The Court found “this comparison less than compelling.” The Court acknowledged that MHRA regulations addressing the definition of “disability” except certain “minor temporary illnesses,” such as broken bones, sprains, or colds, from said definition. The Court, however, emphasized the regulation used the word “minor” and reasoned that Sherry’s E. coli infection (which exacerbated his pancreatitis)—while both “temporary” and “recoverable”—was not “minor.”

The Court then recited facts from the record explaining why Sherry’s condition was not “minor”:

  • Sherry was hospitalized and placed within an intensive care unit;
  • He required a drain on his liver and intravenous antibiotics for an extended period of time;
  • He was unable to communicate on his own during this time; and
  • He had a second surgery to alleviate his pancreatitis.

Ultimately, the Court summarized the record and its ruling as follows: “[t]he evidence in this case supports an inference by the fact finder that the severity of Sherry’s E. coli infection was increased due to his pancreatitis and his prior treatment for cancer, which left him more prone to illness and infections, and while an E. coli infection might not constitute a ‘physical impairment’ under the MHRA and the accompanying regulations for every person in every circumstance, we are unwilling to say that such an infection, especially in combination with other ailments, cannot constitute a physical impairment in any person and under any circumstance as a matter of law.”

Finally, the Court additionally noted that the pancreatitis itself certainly qualified as a “physical impairment” under the MHRA because it caused him to miss work several times over two years, required hospitalizations, and required surgeries to alleviate.

Takeaways

The Missouri Supreme Court has recognized that employment discrimination cases are fact-intensive. This overarching principle is especially true in disability discrimination cases, which often involve disputes as to whether an employee’s medical condition(s) qualifies as a “disability” as defined by law and as to whether accommodations requested by an employee are “reasonable.”

Sherry serves as an important reminder that, depending on specific factual circumstances, leaves of absence from work (even if repeated and/or extended) may nonetheless be considered “reasonable” and disabilities, as a legal matter, may result or flow from a combination of medical conditions that, when viewed individually in a vacuum, may not suffice alone to qualify as a “disability” under the MHRA.
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