Downing v. Department of Finance and Administration et al

Filing 101

ORDER: The Court much appreciates the parties' endorsement of the definitions/questions procedure, as well as their comments, objections, and suggestions on the particulars. Attachment one is a responding redline showing the changes the Court is inclined to make and Attachment two is a clean version. Signed by Judge D. P. Marshall Jr. on 3/28/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
PLAINTIFF

WILLIAM R. DOWNING, JR.

v.

No. 4:15-cv-570-DPM

DEPARTMENT OF FINANCE AND
ADMINISTRATION, an Agency of the
State of Arkansas; BOB HAUGEN and
DAVID JUSTICE, Both in their
Individual and Official Capacities

DEFENDANTS

ORDER
The Court much appreciates the parties' endorsement of the
definitions/ questions procedure, as well as their comments, objections,
and suggestions on the particulars. Attachment one is a responding
redline showing the changes the Court is inclined to make. Attachment
two is a clean version. We'll talk further on these points this afternoon
at the pretrial.
So Ordered.
D.P. Marshall Jr.
United States District Judge

J.8

M~ .lOIB

Attachment One

• Essential job functions are the fundamental duties of
Downing' s job. Marginal functions are not essential functions
of the job.

• Equivalent means virtually identical in terms of pay, benefits, and
working conditions, including privileges, perquisites, and status.
It must involve the same or substantially similar duties, skill,

effort, responsibility, and authority.
• An actual disability is a physical or mental impairment that
substantially limits one or more major life activities.

- Substantially limits is a broad term. An impairment can
be substantially limiting even though it doesn't prevent
Downing from performing a major life activity.
Impairments or effects of impairments that last (or are
expected to last) less than six months may be
substantially

limiting.

In

deciding

whether

an

impairment substantially limits a major life activity, you

should compare Downing' s ability to perform the major
life activity with an average person's ability.

- Major life activities include (but aren't limited to)
performing manual tasks, walking, standing, lifting,
bending, and working.
• Downing was regarded as having a disability if he had an
actual or perceived physical impairment, regardless of
whether the impairment limits or is perceived to limit a major
life activity.
- Downing cannot be regarded as having a disability if his
impairment was transitory and minor.
- A transitory impairment is one with an actual or

expected duration of six months or less. (This is unlike
an actual disability, which doesn't have a time limit.)

-2-

• Downing's disability (whether actual or perceived) was a

motivating factor if that disability played a part in the
Department's decision to fire Downing.
• An accommodation is a modification to the work place that
allows a person with a disability to perform the essential
functions of the job or allows the person to enjoy the same
benefits and privileges as an employee without a disability.
• A reasonable accommodation is one that could reasonably be
made under the circumstances and may include (but is not
limited to): job restructuring; part-time or modified work
schedules; reassignment to a vacant position; acquisition or
modifications of equipment or devices; and other similar
accommodations.

Reasonable accommodation does not

include creating a new position or bumping another
employee in order to reassign a disabled employee.

-3-

Reasonable accommodation also does not necessarily mean
the accommodation requested or preferred by Downing.

• Undue hardship means significant difficulty or expense to the
Department. Some things to consider are:
- The nature and cost of the accommodation;
- The number, type, and location of the Department's
various facilities;
- The financial resources of the Department's facility that
would be involved in providing the accommodation;
the number of employees at that facility; and the overall
impact of the accommodation on that facility;
- The financial resources and size of the Department itself;

- The type of work the Department performs, including
the structure and functions of the Department's
workforce.

-4-

LIABILITY QUESTIONS
1. VVhat \¥ere the essential functions of Dov1ning' s job at the
Department before he took leave? ___________

2. 1Nas it essential pre leave that Do\vning lift fifty pounds or
2
more.
Yes - No - -

3. 11!\/hat v1ere the essential functions of Dov1ning' s job at the
Department after he returned from leave? _ _ _ _ _ _ __

4. VVas it essential post leave that Dov.rning lift fifty pounds or
2
more.

Yes - -

No - -

5. Based on your ansv.rers to Questions 1 through 4, compare the
essential functions of DoTNning' s job before and after he took
leave. Consider v,rhether the pre leave and post leave jobs

\¥ere substantially similar in skill, effort, responsibility, and
authority. P.i:re there any material differences, or \¥ere the jobs
substantially the same?

-5-

If you answered "no," would the Department have made the
same changes to Downing's pre-leave job even if Downing
had not taken FMLA leave?
No - Yes - &.. 2. When Downing returned from leave, was he able to
perform the essential functions of his pre-leave job?
No - Yes
7. 3. Did Downing have an actual disability?
No - Yes

If you answered "yes/' did the Department know about
Downing' s disability?
No - Yes
8. 4. Whether Downing was actually disabled or not, did Bob
Haugen or David Justice regard Downing as having a
disability?
Yes - No - 9. 5. At the time Downing was fired, did his hip-related
restrictions prevent him from being able to perform any
essential job functions?
No - Yes
1{).

6. Was Downing fired solely because of an actual or

perceived disability?
Yes

No - -

If you answered "yes" to Question 1-0 6, skip Question l-1

7.
-6-

11. 7.

Was Downing's actual or perceived disability a
motivating factor in the Department's decision to fire
Downing?

Yes - -

No - -

/1

If you answered yes," would the Department have fired
Downing even if it had not considered his disability?
No - Yes

Answer the remaining Questions 12, 13, 14, 15, & 16 only if
you found (see Question ~ 3) that Downing was actually
disabled and that the Department knew it.
12. 8. After returning from leave, did Downing seek an

accommodation for any disability?
No - Yes

l l 9. At the time Downing was fired, could he have performed
the essential functions of his job with a reasonable
accommodation?
No - Yes - /1

If you answered
yes," would providing the
accommodation have created an undue hardship on the
Department?
No - Yes - -

14. Did the Department make a good faith effort to
accommodate Do\vning after he returned from leave?
Yes
No - -7-

15. A:fter Dovv=ning returned from leave, v1as a ·v1ork schedule
other than the nevi schedule possible \Vithout creating an
undue hardship on the Department?
No - Yes
16. 10. If you conclude that Downing requested an
accommodation (see Question 12 8), was he fired solely
because he sought that accommodation?
Yes
No
Inapplicable __

-8-

Attachment Two

• Essential job functions are the fundamental duties of
Downing' s job. Marginal functions are not essential functions
of the job.
• Equivalent means virtually identical in terms of pay, benefits, and

working conditions, including privileges, perquisites, and status.
It must involve the same or substantially similar duties, skill,

effort, responsibility, and authority.
• An actual disability is a physical or mental impairment that
substantially limits one or more major life activities.

- Substantially limits is a broad term. An impairment can
be substantially limiting even though it doesn't prevent
Downing from performing a

major life activity.

Impairments or effects of impairments that last (or are
expected to last) less than six months may be
substantially limiting.

In

deciding

whether

an

impairment substantially limits a major life activity, you

should compare Downing' s ability to perform the major
life activity with an average person's ability.

- Major life activities include (but aren't limited to)
performing manual tasks, walking, standing, lifting,
bending, and working.
• Downing was regarded as having a disability if he had an
actual or perceived physical impairment, regardless of
whether the impairment limits or is perceived to limit a major
life activity.
- Downing cannot be regarded as having a disability if his
impairment was transitory and minor.
- A transitory impairment is one with an actual or

expected duration of six months or less. (This is unlike
an actual disability, which doesn't have a time limit.)

-2-

• Downing' s disability (whether actual or perceived) was a

motivating factor if that disability played a part in the
Department's decision to fire Downing.
• An accommodation is a modification to the work place that
allows a person with a disability to perform the essential
functions of the job or allows the person to enjoy the same
benefits and privileges as an employee without a disability.
• A reasonable accommodation is one that could reasonably be
made under the circumstances and may include (but is not
limited to): job restructuring; part-time or modified work
schedules; reassignment to a vacant position; acquisition or
modifications of equipment or devices;

accommodations.

and other similar

Reasonable accommodation does not

include creating a new position or bumping another
employee in order to reassign a disabled employee.

-3-

Reasonable accommodation also does not necessarily mean
the accommodation requested or preferred by Downing.

• Undue hardship means significant difficulty or expense to the
Department. Some things to consider are:
- The nature and cost of the accommodation;
- The number, type, and location of the Department's
various facilities;
- The financial resources of the Department's facility that
would be involved in providing the accommodation;
the number of employees at that facility; and the overall
impact of the accommodation on that facility;
- The financial resources and size of the Department itself;

- The type of work the Department performs, including
the structure and functions of the Department's
workforce.

-4-

LIABILITY QUESTIONS

1.

Were Downing's pre-leave and post-leave jobs equivalent?
Yes
No - If you answered "no," would the Department have made the
same changes to Downing's pre-leave job even if Downing
had not taken FMLA leave?
Yes - No - -

2.

When Downing returned from leave, was he able to perform
the essential functions of his pre-leave job?
Yes
No - -

3.

Did Downing have an actual disability?
Yes
No - If you answered "yes," did the Department know about
Downing' s disability?
Yes
No - -

4.

Whether Downing was actually disabled or not, did Bob
Haugen or David Justice regard Downing as having a

disability?
Yes - -

5.

No - -

At the time Downing was fired, did his hip-related
restrictions prevent him from being able to perform any
essential job functions?
Yes
No - -

-5-

6.

Was Downing fired solely because of an actual or perceived
disability?
Yes - No - If you answered "yes" to Question 6, skip Question 7.

7.

Was Downing's actual or perceived disability a motivating
factor in the Department's decision to fire Downing?
Yes
No - /1

If you answered yes," would the Department have fired
Downing even if it had not considered his disability?
No - Yes
Answer the remaining Questions only if you found (see
Question 3) that Downing was actually disabled and that
the Department knew it.

8.

After returning from leave, did Downing seek an
accommodation for any disability?
Yes
No - -

9.

At the time Downing was fired, could he have performed
the essential functions of his job with a reasonable
accommodation?
Yes - No - -

If you answered
yes," would providing the
accommodation have created an undue hardship on the
Department?
No - Yes - /1

-6-

10.

If you conclude that Downing requested an accommodation
(see Question 8), was he fired solely because he sought that
accommodation?
No
Inapplicable __
Yes

-7-