W.D. Ky. Decides ADAAA Case for Defendant

A couple of days ago, in Azzam v. Baptist Healthcare Affiliates, Inc., 2012 WL 28117 (W.D. Ky., Jan. 5, 2012), Judge Thomas Russell of the United States District Court for the Western District of Kentucky issued an unusual decision applying the ADA Amendments Act to rule for the defendant.  Azzam is an employment case.  The plaintiff, Azzam, is a nurse who was assigned to defendant BHA's surgery unit.  Surgery nurses at BHA work 8-hour shifts from Monday-Friday, and they must be on call one night a week, and on weekends, on a rotating basis.  After Azzam experienced a neurological event that may have been a stroke, she found that she experienced too much fatigue to perform her night/weekend on-call responsibilities.  When the other nurses complained about having to cover for her in performing those responsibilities, and Azzam's doctor would not clear her to be on call nights and weekends, BHA terminated her.

Azzam sued under the ADA.  BHA moved for summary judgment on the grounds that Azzam had no disability and that the ability to perform night/weekend on-call duties were an essential function of the job of surgery nurse.  Because the termination took place in 2009, the court applied the ADAAA to the disability question.  The court had no doubt that the neurological event and its effects constituted an impairment, whether or not it was actually a stroke, but the court concluded that it did not substantially limit any major life activity.  Azzam claimed that the impairment substantially limited her neurological functions and her ability to work or concentrate.  The court found that she had not presented any evidence regarding her neurological functions or her ability to concentrate, so it focused only on the major life activity of working.  Even after the ADAAA, the court concluded, the inability to perform a particular function at work (here, being on call nights and weekends) did not constitute a substantial limitation.  Interestingly, the court referred significantly to the EEOC's ADAAA regulations and interpretive guidance, even though those were not issued until after the employment termination decision in this case.  The court also concluded that, at BHA, the ability to be on call nights and weekends is an essential function of the surgery nurse position.  Accordingly, it granted summary judgment to BHA.

Query whether the disability issue would have come out differently if the plaintiff had presented evidence of the effect of her impairment on her neurological functions.