Despite the full medical release, Norfolk stated that it would not allow him to return to work and would need additional medical information specifically regarding Warren’s “orthopedic condition.” Norfolk sent Whitted to a physical therapist that provided the requested information and agreed with the other doctors that Whitted was able to work. Norfolk then sent Whitted, in January 2012, to a field test where the physical therapist and Trainmaster observed him successfully perform the essential functions required of his job as a conductor.
In March of 2012, Norfolk’s medical department suggested Whitted have a Functional Capacity Evaluation at Lakeshore Rehabilitation Center. In April 2012, Lakeshore gave Whitted the results of this test, which stated that he had passed.
In July 2012, Whitted was sent to Norfolk’s national training facility to again have his ability to perform evaluated and he demonstrated that he could adequately perform the job duties. Even though he was cleared by his orthopedic doctor to work, and by the physical therapist who observed him perform a field test, and by the doctors who performed his Functional Capacity Evaluation, Norfolk continued to refuse to allow Whitted to work.
In July of 2012, the medical department of Norfolk sent Whitted a letter stating that he could not come back as a conductor because he had a Traumatic Brain Injury, and was thereby unable to safely perform the essential functions of the job. When Whitted attempted to apply for other open jobs with Norfolk ’s vocational rehabilitation department, he was consistently rejected for multiple jobs because of the same reasons that Norfolk used to keep Whitted from working his job as a conductor. In October of 2012, Whitted applied for a vacant position as a diesel mechanic, but was not even granted an interview.
On February 17, 2016, a final judgment order was entered in favor of Whitted in his Federal Court ADA lawsuit against Norfolk Southern in the amount of $396,521.95. The jury had originally awarded 10.6 million, which was reduced based upon the $300,000 judgment cap in Title VII. The jury made specific verdict findings that, “Warren Whitted was regarded by Norfolk Southern as disabled” and they “refused to reinstate” and they “took that action because it regarded Mr. Whitted as disabled” and that he did not “pose a direct threat to Norfolk Southern, himself, or other employees.”
Common Sense Counsel: With the advent of the ADAAA and the expansion of the definition of a disability, an employer’s best chance to defeat a disability discrimination claim may require the employer to show that the plaintiff was not a qualified individual. This case provides a model for how not to raise the “unqualified” defense in defending an ADA claim.
Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at firstname.lastname@example.org or 334-246-2901.