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Employment Law Alert: Tenth Circuit Says T-Mobile Did Not Regard Employee As Disabled Under The ADA By Offering Her FMLA Leave

In Berry v. T-Mobile USA, Inc., the Tenth Circuit affirmed summary judgment in T-Mobile’s favor on the plaintiff’s claim that she was “regarded as” disabled in violation of the ADA when a T-Mobile representative suggested she apply for FMLA leave. The plaintiff, Barbara Berry, had multiple sclerosis (“MS”), which sometimes caused her to be fatigued and impaired her cognitive abilities. When Berry informed her manager that she needed rest at work due to extreme fatigue caused by her MS, he suggested she apply for FMLA leave if she felt she needed time off from work. She did, and her request was granted. Berry later claimed that her manager’s suggestion was evidence that T-Mobile “regarded” her as disabled in violation of the ADA. The Court, noting that this was a case of first impression, rejected Berry’s argument. In so doing, the Court focused on the FMLA’s leave provisions, which the Court noted were “wholly distinct from the statutory definition of ‘disability’ and the employer’s reasonable accommodation obligations . . . under the ADA.” The Court also recognized that, while there may be “some parallels between the ADA and FMLA . . . applicable regulations explicitly state that ADA’s ‘disability’ and the FMLA’s ‘serious health condition’ are different concepts, and must be analyzed separately.”

Bottom Line

This is a good decision for employers, because it further limits the ways in which employees can be claimed to have been “regarded as” disabled under the ADA, and because it recognizes the important differences between the ADA and the FMLA.

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