Employees who sue for disability discrimination but don’t provide medical expert testimony might be more likely to see their claim survive a summary judgment motion, given a new federal appellate opinion.
The 10th Circuit Court of Appeals ruled Nov. 8 the Americans with Disabilities Act doesn’t require plaintiffs to have medical expert testimony to prove they have a disability. The opinion in Tesone v. Empire Marketing Strategies firmed up case law in ADA litigation by saying courts should decide on a case-by-case basis whether plaintiffs must have medical evidence to support their disability discrimination claim. The panel decision reversed a summary judgment ruling out of Colorado’s federal district court.
More specifically, the panel said a disability that a layperson can easily understand, like chronic back pain, may not require a signed affidavit from a doctor or an expert medical witness to show a prima facie case of disability discrimination. While employees’ ADA claims aren’t helped by lacking medical testimony, Tesone reminds employers that it can still go deep in litigation.
The plaintiff, Jonella Tesone, worked for Empire as a sales merchandiser who would go into grocery stores to help change their displays. When she was hired in 2012, she told Empire that she couldn’t lift more than 15 pounds due to back problems.After four years, Empire management began discussing what it saw as Tesone’s “performance issues,” and in those talks she referenced her lifting restriction.
After Empire’s repeated requests, Tesone provided a note from a doctor that supported her lifting restriction, saying she had muscle weakness and chronic back pain.