On March 31, 2013, in a 74-page opinion, the U.S. District Court for the Eastern District entered a decision denying the motion for summary judgment brought by JetBlue Airways to dismiss the claims brought by the plaintiff Emilie Morse that she was fired because of her disability. See Morse v. JetBlue Airways Corp., 2013 WL 1294629 (Mar. 31, 2013). Beranbaum Menken LLP represents Ms. Morse. Morse worked for JetBlue as a supervisor of flight attendants (an “Inflight Supervisor”), and everyone agree that she did a superb job. Morse developed severe back pains, making it difficult to do her job. In July 2006, JetBlue put Morse on disability leave. Morse had back surgery and by May 2007 was able to return to work. She asked her supervisors to be returned to her Inflight Supervisor job with a reasonable accommodation allowing her not to fly. Morse knew that her requested accommodation would not pose a problem to JetBlue because for the 6 months before she went out on disability leave, she worked as an Inflight Supervisor without once having to fly. Alternatively, she asked for any other kind of job – a lateral transfer, even a lower position, just as long as she could get back to work.

When a disabled employee (like Morse, here) requests a reasonable accommodation at work, the Americans with Disabilities Act requires the employer to engage in a meaningful exchange of ideas about the feasibility of the requested accommodation. JetBlue did not do so with Morse. Instead, JetBlue invoked a policy providing that any employee out on disability leave for 52 weeks who is not able to perform the essential functions of his or her former job will be automatically fired. And this is what JetBlue did. After her surgery, Morse was able to do sedentary work, but she could not fly, and JetBlue claimed that flying was an essential function of the Inflight Supervisor position (even though Morse held the job for 6 months without ever flying). JetBlue then automatically terminated Morse without even considering whether she could return to JetBlue in a modified Inflight Supervisor position or in some other position.

Beranbaum Menken LLP filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission on behalf of Morse and all the other JetBlue employees who had been fired as a result of the airline’s discriminatory 52-Week Termination Policy. The EEOC, after an extensive investigation, upheld Morse’s charges. The agency found that JetBlue fired Morse pursuant to an “inflexible 52-week maximum leave policy.” The EEOC also found that by inflexibly applying its 52-week maximum leave policy to individuals with disabilities, JetBlue maintained a “pattern or practice of denying reasonable accommodation to, and discriminating against a nationwide class of individuals with disabilities in violation of the ADA.”

In response to the EEOC’s determination, JetBlue agreed to change its maximum leave policy so that the airline can no longer automatically fire a disabled employee out for 52 weeks on disability leave. JetBlue, instead, agreed to consider, in each case, whether a disabled employee on medical leave can return to his or her job with a reasonable accommodation or transfer to another available job. Only if no such accommodation is feasible, can the airline fire the disabled employee.

While agreeing to scrap its discriminatory 52-Week Termination Policy, JetBlue refused to compensate Morse for the damages she suffered as a victim of that policy. As a result, Morse filed a lawsuit in U. S. District Court for the Eastern District of New York.

After a great deal of discovery, and JetBlue’s filing of a Motion for Summary Judgment to have to the case dismissed, United States District Judge denied JetBlue’s motion and allowing the case to go to trial. The Opinion was an across-the-board victory for Morse. The Court held:

1) The fact that Morse received Social Security Disability benefits after her termination from JetBlue did not prevent her from claiming that had JetBlue given her a reasonable accommodation, she could have performed the essential functions of her job or another job.

2) Although, according to the Court, flying was an essential function of Morse’s original job, there was sufficient evidence that she could have performed the essential functions of two other available, non-flying jobs for which she was qualified.

3) The fact that for 6 months Morse satisfactorily carried out the duties of an Inflight Supervisor without flying is evidence that her request for a non-flying supervisory job would not have been unduly burdensome to JetBlue, and the airline offered no detailed evidence that Morse’s requested accommodation would present an undue hardship.

4) JetBlue failed to engage in an interactive process to determine an appropriate reasonable accommodation for Morse, as the ADA requires.

5) JetBlue unlawfully terminated Morse. As the district court wrote, “[t]erminating a disabled employee ... who can perform the essential functions of the job but cannot return to work because the employer has denied [her] request for reasonable accommodation, is disability discrimination under the ADA.”

You can call John Beranbaum if you have questions about the case or find yourself in a similar situation.