Jonella Tesone worked for Empire Marketing Strategies (EMS) as a product retail sales merchandiser. Part of her job was to set retail displays in grocery stores. Based upon the evidence, she told EMS when she was hired she had back problems and could not lift more than 15 pounds. Fast forward a few years.

October 2016, she was sent to another town for a job. Instead of returning, she stayed overnight incurring expenses which were not approved. When she returned, EMS met with her to discuss that issue as well as a few other performance issues. During that meeting, Tesone raised her lifting restrictions. At that time, EMS requested medical information to support the claim. Nothing was forthcoming, so four additional requests by EMS were made for medical information. Roughly February 2017, Tesone presented a note from Dr. Manjarres which stated she had limitations “related to muscle weakness” and “chronic lower back pain.” Dr. Manjarres recommended the following restrictions: “1) No lifting over head 2) Can not lift spatially in front of her more than 15 pounds.”

During that same four month span, EMS counseled with Tesone several more times about performance issues. On February 27, 2017, EMS discharged Tesone.

Tesone sued alleging she was discriminated against in violation of the Americans with Disabilities Act, as amended (ADA). Specifically, she claimed that she was a qualified individual with a disability but that EMS fired her to avoid any obligations it might have under the ADA.

Interestingly, in the lawsuit, Tesone did not designate any expert witness. EMS’s counsel made the comment during depositions that the failure to do so would be fatal to her claim. A similar comment was later made by the magistrate during a settlement conference. So, months after the deadline, her attorney tried to designate one but the trial court denied the request stating it was too late. EMS’s attorneys filed for and were granted summary judgment by the trial court, in part, because Tesone did not present any expert evidence that she was had a disability.

The case, which originated in Colorado, was appealed to the Tenth Circuit Court of Appeals (which is also the Circuit for Oklahoma).

The Court of Appeals took care to discuss some of the history of the ADA and to remind us as to the import of the 2008 amendments, which were “designed to ‘reinstat[e] a broad scope of protection to be available under the ADA.'” The Court reminded that the amendments made it “easier for plaintiffs to show that an impairment ‘substantially limits one or more major life activities.’ See 29 C.F.R. § 1630.2(j)(1)(i).” In other words, the Court set the stage.

Of course, a plaintiff employee suing for ADA discrimination must prove that he or she is a disabled person as defined by the ADA. It is how that is proven that was the question in this case.

The trial court relied on cases where medical expert testimony had been required. Indeed, those cases exist. But, that is not the “rule.” Whether medical expert evidence is necessary must be determined based upon the facts of each case.

For example, the Court looked to one of its earlier decisions when it had required such medical expert evidence. In that case, called Felkins, the plaintiff employee claimed her disability was a rare condition known as avascular necrosis. The Court noted the distinctions between Felkins and Tesone’s situation.

In Felkins, the plaintiff suffered from avascular necrosis, a rare bone condition. Here, by contrast, Ms. Tesone alleges she suffers from a back injury that impairs her ability to lift heavy objects. Unlike avascular necrosis, a back injury may not be “beyond the realm of common experience” and may not “require the special skill and knowledge of an expert witness.” … Rather, a back injury could be “among those ailments that are the least technical in nature and are the most amenable to comprehension by a lay jury.” … Such “conditions do not require medical evidence in an ADA case.”

In short, the Court of Appeals held that the trial court was wrong to summarily reject Tesone’s claim because she did not have an expert witness. The Court of Appeals sent the case back to the trial court for further proceedings.

Now, this does not mean that Tesone will (or will not) ultimately win her case. The lesson here is what it always is with the ADA – each situation is different and must be evaluated on a case-by-case basis.

By Kristen L. Brightmire, kbrightmire@dsda.com