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Should I Handle My Disability Discrimination Case By Myself? No

by | Jun 9, 2023 | Disability Discrimination, Employment Discrimination, Employment Law, Wrongful Termination |

Next to no appellate decisions end favorably for the employee when they start off saying: “Cleon Belgrave, proceeding pro se …”

Today, we look at the recent case of Belgrave v. Publix Super Market, Inc., No. 22-13021, 2023 WL 3477790, at *1 (11th Cir. May 16, 2023) as an example of why.

What does pro se mean?

“Pro se” is a Latin term that means “for oneself” or “on one’s own behalf.” It refers to the legal representation of a person who represents themselves in a court proceeding, rather than being represented by an attorney. When someone is acting pro se, they are acting as their own lawyer and handling their case without professional legal assistance.

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Are pro se parties held to the same standard as lawyers?

When a party proceeds pro se, the court interprets their pleadings liberally and holds them to a less strict standard compared to formal pleadings prepared by lawyers. Even if the pro se litigant fails to cite proper legal authority, presents confusing legal theories, or has limited familiarity with pleading requirements, the court should reasonably interpret the pleadings to identify a valid claim on which the petitioner could potentially succeed. However, it’s important to note that the court will not act as an advocate for the pro se litigant. Pro se status does not excuse any litigant from complying with the fundamental requirements of the Federal Rules of Civil and Appellate Procedure. Pro se litigants are generally held to the same fundamental standards as lawyers in court proceedings. While they may not possess legal training or experience, the legal system expects pro se litigants to follow the same basic rules and procedures as attorneys. Thus, many courts have repeatedly insisted that pro se parties must “follow the same rules of procedure that govern other litigants.” Green v. Dorrell, 969 F.2d 915, 917 (10th Cir.1992), cert. denied, 507 U.S. 940, 113 S.Ct. 1336, 122 L.Ed.2d 720 (1993); see Casper v. Commissioner, 805 F.2d 902, 906 n. 3 (10th Cir.1986); Bradenburg v. Beaman, 632 F.2d 120, 122 (10th Cir.1980), cert. denied, 450 U.S. 984, 101 S.Ct. 1522, 67 L.Ed.2d 820 (1981).

For example, in Belgrave, the United States Court of Appeals for the Eleventh Circuit held:

While we “read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (citation omitted). A party fails to adequately present an issue on appeal “when he does not plainly and prominently raise it, for instance by devoting a discrete section of his argument to th[at] claim[ ].” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (quotations omitted).

Id. at *1.

Importantly, by the time employees figures out that they are in over their heads, it is typically too late for an attorney to come in and fix the problem.

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What is a reasonable disability accommodation under the ADA?

Under Americans with Disabilities Act (“ADA”), a reasonable disability accommodation is a modification or adjustment made by an employer or service provider to enable an individual with a disability to perform the central functions of the employee’s job. The specific accommodation depends on the nature of the disability and the limitations it imposes on the individual. Significantly, a reasonable accommodation cannot impose undue hardship on the employer. The determination of what is considered reasonable is based on factors such as the cost, impact on operations, and the size and resources of the company.

In Belgrave, the Eleventh Circuit Court of Appeals held on this point:

An accommodation is reasonable “only if it enables the employee to perform the essential functions of the job.” Holly, 492 F.3d at 1256 (emphasis added). The burden of identifying a reasonable accommodation, and the “ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable,” rests with the individual. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997). Reasonable accommodations may include: “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9)(B).

Importantly, however, an employer is not required to re-allocate job duties in order to change the essential function of the job. Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000). Moreover, an employer is not obligated to “bump” another employee from a position to accommodate a disabled employee. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001). In addition, an individual seeking accommodation is not necessarily entitled to the accommodation of his choice, but rather, only a reasonable accommodation. Stewart, 117 F.3d at 1286.

Id. at *2.

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So, what happened in this case and what did Belgrave request as his accommodation request?

Belgrave began working as a “dough room production operator” on the “pie line” of The employer’s bakery in 2014. On July 29, 2015, Belgrave allegedly hit his head on the freezer door, resulting in head and neck injuries. The employer provided accommodations, including light duty. On March 27, 2018, Belgrave was purportedly hit in the legs with a pallet by another employee operating an electric jack. The employer accommodated Belgrave by assigning light duty for three to six months, providing a stool or chair for him to sit on while working, and occasionally assigning a helper in the dough room. On May 25, 2019, Belgrave allegedly hit his head on an air hose pipe, causing head and neck injuries. He called out for the next four workdays and upon returning, requested a permanent full-time helper due to the alleged injury. Belgrave later testified that he is unable to work at all due to a disability.

In requesting a disability accommodation under the ADA, Belgrave asked for only one thing: a “helper” to perform mostly all of his job for him — as he testified, to help him “open the boxes, lift, pull, whatever was needed for me to work, to do my job. Whatever they asked me to do on a daily basis.” Id. at *2.

His employer declined to hire someone else to essentially to his job and keep Belgrave; and instead, fired him. Belgrave sued for disability discrimination, failure to accommodate, and wrongful termination.

As you can imagine, the Eleventh Circuit Court of Appeals held that being allowed to sit and watch someone else do the job is not a reasonable accommodation. Specifically, the Court held that since “reasonable accommodation” is defined as something that would enable the employee to “work the essential functions of his job by himself,” this request was exactly the opposite. The Court held: “the ADA does not require the employer to eliminate an essential function of the individual’s job … nor does it require an employer to hire another employee to perform essential functions of the ADA plaintiff’s job.” Id. at *5 (internal quotations omitted).

Am I protected from discrimination under the ADA if I am no longer physically able to do the job?

Unlikely. The ADA does not require employers to retain or modify a job if the individual is unable to perform the essential functions of the position, even with reasonable accommodations. Employers are obligated to engage in an interactive process with employees to determine reasonable accommodations that could enable them to perform their job duties. If no reasonable accommodation is available or if the accommodation would cause undue hardship to the employer, the employer may be allowed to make a decision based on the individual’s inability to perform the essential functions of the job.

To establish a prima facie case of disability discrimination, employees must demonstrate the following elements: (1) they have a disability, (2) they are a qualified individual, and (3) they experienced unlawful discrimination based on their disability. To be considered a qualified individual, employees must be able to perform the essential functions of their job with or without reasonable accommodation. 42 U.S.C. § 12111(8). Directly on point, in Williams-Evans v. Advance Auto Parts, 843 F. App’x 144, 147 (11th Cir. 2021), the United States Court of Appeals for the Eleventh Circuit held: “Because the ADA protects only individuals still able to perform the essential functions of their job, a plaintiff who is totally disabled and unable to work cannot sue for discrimination under the ADA.”

In Belgrave, the Eleventh District Court of Appeals reached the same conclusion: “Plaintiff testified that he cannot work at all due to a disability. Consequently, he is not a qualified individual under the ADA.” Id. at *4.

The “at all” part of his testimony is what causes employees the most problems. When an employee cannot work “at all,” the employee cannot be qualified for any job “at all” and there is no accommodation that will allow the employee to perform the central functions of the job.

However, in some cases where the employee cannot perform a particular job, individuals may still be protected under the ADA by being provided opportunities for reasonable accommodation, such as reassignment to a vacant position within the company, if available. Belgrave, who was without the assistance of legal counsel, failed to make this argument.

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Do I have a disability discrimination case against my job?

You should not expect to find that answer online by searching Google. Each case is different and employment laws, especially the ADA, are very complex. Instead, to find out whether you may or may not have a claim for disability discrimination or failure to accommodate, it would be best for your to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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