Sunday, September 30, 2012

D.N.M.: Under ADAAA, Back Injury that Prevents Lifting More than 60 Pounds or Climbing Utility Poles May Be a Disability

Last week, Judge Martha Vazquez of the United States District Court for the District of New Mexico issued an opinion denying a motion to dismiss in Rico v. Xcel Energy, Inc., ___ F. Supp.2d ___, 2012 WL 4466631 (D.N.M., Sept. 25, 2012).  Rico experienced a back injury at work, which prevented him from lifting more than 60 pounds or climbing utility poles -- both of which were requirements of his position.  He requested a transfer to a position for which he would not have to lift more than 60 pounds or climb utility poles, but his employer rejected that request and terminated him (though it ultimately rehired him in a lower-paying position and wiped out his seniority).  He sued under the ADA.  The employer moved to dismiss on the ground that Rico did not have a disability, because the inability to lift more than 60 pounds or climb utility poles did not substantially limit any major life activity.

The court denied the motion.  The employer had relied on pre-ADAAA cases holding that even more severe lifting restrictions (e.g., no more than 25 pounds) did not substantially limit major life activities, but the court concluded that those cases were overturned by the ADAAA.  The court explained:
The express language of the ADAA and its interpretative regulations thus call into question the continued precedential value of pre-amendment cases, such as those cited by Defendants, which well might have applied a higher degree of functional limitation than is now permissible under the statute to determine whether lifting restrictions are stringent enough to qualify an individual as disabled. 
* * * 
Under the broadened standards of the ADAAA, the Court finds Plaintiff's allegations as to his disability sufficient to withstand the pleading requirements of Rule 12(b)(6). According to the Complaint, Plaintiff's condition renders him unable to climb utility poles or engage in heavy lifting. Post-surgery, his doctor limited him to work that did not involve lifting over sixty pounds or climbing utility poles. Moreover, Southwestern recommended that Plaintiff apply for long-term disability benefits. These allegations, read in the light most favorable to Plaintiff, are sufficient to raise an inference that Plaintiff was disabled at the time of his termination. Accordingly, the Court would be premature in dismissing Plaintiff's ADA claim at this stage of the litigation.

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