Key Points

  • The 10th Circuit reversed summary judgment for A & A Appliance on the EEOC's ADA failure-to-accommodate, disparate treatment and retaliation claims and remanded.
  • The majority held that an employee need not give a formal diagnosis or name a condition to put an employer on notice of a disability.
  • A jury could find that a request for a few weeks of leave after a pending endoscopy, backed by a doctor's note and uncontradicted by medical evidence, stated an expected duration of impairment.
  • The district court should not have weighed the employee's statement on an unemployment application that she was not disabled.
  • Judge Matheson dissented on the duration issue, writing that the employee's estimate was speculative because the endoscopy had not yet occurred.

A divided federal appeals court on Friday revived the U.S. Equal Employment Opportunity Commission's disability-bias lawsuit against a Colorado appliance retailer that fired a sales associate two days after her medical leave ran out. The court held that a jury could find her request for a few more weeks off, until she had the results of an endoscopy, was a reasonable accommodation under the Americans with Disabilities Act.

The 10th U.S. Circuit Court of Appeals, in a published 2-1 opinion by Judge McHugh, reversed a District of Colorado ruling that had granted summary judgment to A & A Appliance Inc., which does business as Appliance Factory Outlet. Judge Matheson agreed that the worker had given notice of a disability and tied her leave request to it, but dissented on whether she had told the company how long her impairment would last.

The decision sends the commission's failure-to-accommodate, disparate treatment and retaliation claims back to the trial court. The majority held that an employee can put an employer on notice of a disability without a diagnosis, and that a jury could find a leave request pegged to a pending medical test supplied the "expected duration of the impairment" that circuit precedent requires, where no medical evidence contradicted the employee's estimate.

Karima Javanzad joined the company's Thornton, Colorado, store in February 2019, and the company itself described her as "an excellent and productive employee," according to the opinion. She fell ill in March 2020 with symptoms her doctor suspected were COVID-19, made multiple emergency room trips and received 12 weeks of leave under the Family and Medical Leave Act. The leave was set to expire on June 8, 2020.

In May she told a human resources specialist, Sherry Coudayre, that "My stomach has a problem after I encountered the virus" and that an endoscopy had been scheduled. She later sent a doctor's note saying she "should remain out of work until her symptoms have improved and she has the results of her planned procedures." The endoscopy was pushed to June 9 because of COVID-19 restrictions.

During a five-minute phone call on June 2, Javanzad told Coudayre she "needed a few weeks," the opinion said. Coudayre testified she did not recall the call, but the company's phone provider's records showed it took place. The company fired Javanzad on June 10 in a letter acknowledging that she had sought more leave "for a gastrointestinal disorder." Her endoscopy confirmed mild gastritis, and she "got better" within a few weeks of taking medication as directed.

The district court had ruled that Javanzad never put the company on notice of a disability and that her request amounted to indefinite leave. Appliance Factory argued on appeal that her messages "reflect[ed] only general health issues of unknown severity or duration."

The majority disagreed, pointing to her emails and texts, the doctor's note, the June 2 call and the termination letter. Judge McHugh wrote that "an employee need not provide her employer with a formal diagnosis or even the name of a disabling condition for an employer to know that the employee has a disability under the ADA." The company's own reference to a "disorder," the opinion said, "could support a jury determination that Appliance Factory indeed knew Ms. Javanzad had an ongoing disability and was not simply feeling unwell."

The panel also faulted the district court for citing Javanzad's statement on an unemployment benefits application that she was not disabled. Javanzad testified she thought the word meant "a person in a wheelchair or a blind person," and the majority said that evidence "was improperly considered at this stage of the litigation," partly because there was no evidence the company knew about it when it fired her.

On the duration question, which the majority called close, Appliance Factory argued that "[t]here was no way [Ms.] Javanzad or her doctors could have known whether the endoscopy would reveal a serious condition." The majority likened the case to its 2021 decision in Herrmann v. Salt Lake City Corp., where a social worker's estimate that an employee's PTSD symptoms would last three to six months was enough. Judge McHugh wrote that Javanzad had offered an estimate of recovery, which the court has recognized is often "the best an employee . . . can offer" when an impairment is chronic.

"True, Ms. Javanzad's endoscopy could have revealed a more serious condition that would have required her to take more leave than she initially anticipated," the majority wrote. "But there is no evidence in the record suggesting that Ms. Javanzad or her doctor expected her impairment to last longer than a few weeks after the endoscopy."

Because the endoscopy had not yet happened, Judge Matheson wrote in dissent, Javanzad's statements "were speculative and amounted to vague references to leave." The dissent pointed to her deposition testimony that she "didn't know" how long she needed. Her words "might" and "probably," Judge Matheson wrote, "connote uncertainty," which in the dissent's view left the company with "no more notice than the employer in Cisneros on expected duration of impairment," a reference to Cisneros v. Wilson, a 2000 decision in which the employee's doctors had called the duration of her illnesses "unknown."

"But without the endoscopy results, Ms. Javanzad and the doctor had no basis to estimate when her symptoms would resolve, and neither did Appliance Factory," Judge Matheson wrote.

The majority said the disparate treatment and retaliation claims "rise or fall together" with the accommodation claim, so it did not address each separately. It also rejected, without elaboration, the company's argument that the commission had not appealed those claims.

Dara S. Smith of the EEOC's Office of General Counsel represented the commission. Janet M. Himmel of Fisher & Phillips LLP represented Appliance Factory.

The case now returns to the District of Colorado for further proceedings. The trial court must decide in the first instance whether Javanzad's condition qualified as a disability under the statute, a question it left open when it granted summary judgment and denied as moot the parties' competing motions to exclude expert testimony on the nature of her disability.