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Upholding the District Court's grant of summary judgment, the Third Circuit found that Aron, by alleging only his own single instance of adverse impact, failed to show how Quest's practice had a disparate impact on Orthodox-observant Jews. Likewise, in accordance with the District Court's decision, the Third Circuit found that while Aron had set forth a prima facie case for disparate treatment in hiring, he failed to respond to Quest's legitimate, non-discriminatory reason for not hiring him ' that the Saturday work policy was instituted in 2000 to accommodate clients' demands for increased weekend service. This court also agreed with the District Court that there was no evidence that Quest had a discriminatory motive in not hiring Aron, or that his religious beliefs were a determining factor in that decision. Finally, in addressing Aron's assertion that Quest failed to accommodate his religious beliefs, the Third Circuit determined that Quest had a legitimate claim of undue hardship in that because the Saturday work policy pertained to all employees, an accommodation for Aron would result in unequal treatment of other employees that would burden employee morale. Further, because Quest rotated phlebotomists among its various patient service centers, it could not accommodate Aron by allowing him to work at only those centers closed on Saturdays. The Third Circuit thus affirmed the District Court's grant of summary judgment for Quest.

'Posing a Threat' Under ADA Is Term of Art Not Equivalent to 'Making a Threat'

The Second Circuit has held that the 'poses a direct threat' defense to an Americans with Disabilities Act (ADA) claim is not applicable when an employee actually 'makes' a threat because the phrase 'poses a direct threat' is a term of art with a specific statutory meaning under the ADA. Sista v. CDC Ixis North America, Inc., 2006 WL 956958 (April 13).

Plaintiff-appellant Michael Sista, an employee of defendant-appellant CDC Ixis North America, Inc. ('CDC'), an investment bank, was demoted and threatened with possible termination after his direct supervisor Adil Nathani accused him of threatening Kamal Mehta, a new employee over whom he had supervisory authority, based on a recorded telephone conversation Sista had with Mehta. After his demotion, Sista became depressed and emotional and began seeing a psychiatrist, who diagnosed him with suffering from a possible major depressive disorder and prescribed him antidepressant medication. In a subsequent meeting with Nathani, Lawrence Laier, CDC's Director of Human Resources, and Albert Zakes, CDC's General Counsel, Sista became agitated and shouted, cursed, and threatened Nathani. As a result of this behavior, Sista was placed on a leave of absence, during which he became depressed and attempted suicide. CDC requested that Sista take Family and Medical Leave Act (FMLA) leave to recover and to provide it with a letter from his treating physician when he was capable of returning to work. During Sista's medical leave, it was decided that because he never apologized or recanted the threat to Nathani, his return would be disruptive to the group, and that he should therefore be terminated. In response to Sista's claim of discriminatory termination under the ADA, the District Court determined that Sista could not make out a prima facie case because ”as a matter of law [he could not] show that he was 'otherwise qualified' to perform his job at the CDC.' The District Court found that Sista's threats to Nathani were violent and that this conduct violated CDC policy, rendering him not otherwise qualified to perform his job.

The Second Circuit, reviewing the elements of a prima facie case under the ADA and its regulations, found that the District Court had erred in holding that Sista was not 'otherwise qualified' to return to his job at CDC after his medical leave because he posed a direct threat to his co-workers, a violation of CDC policy. In determining whether a plaintiff has made out a prima facie case under the ADA, 'qualification standards' may include a requirement that an employee not pose a direct threat to the health or safety of other individuals in the workplace (citing 42 U.S.C. ' 12113(b)). The 'poses a direct threat defense' to a prima facie case of discrimination under the ADA requires an ”individualized assessment of the employee's present ability to perform the essential functions of the job ' based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence” (citing 29 C.F.R. ' 1630.2(r)).

The Second Circuit determined that '[w]hen the District Court found that Sista threatened Nathani ' in violation of CDC policy, the District Court was articulating a legitimate non-discriminatory reason for the CDC's subsequent termination of Sista, not a basis for finding that Sista 'poses a direct threat' as defined by the ADA.' While the Second Circuit acknowledged that the word threat has a common meaning, it found that 'poses a direct threat' as defined by the ADA is a term of art and is not applicable when an employee actually makes a threat. Quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Second Circuit stated, ”We have no doubt that ' misconduct may certainly provide a legitimate and non-discriminatory reason to terminate an employee. This misconduct is distinct, however, from the issue of minimal qualification to perform a job. An individual may well have the ability to perform job duties, even if her conduct on the job is inappropriate or offensive.”

50-Employee Threshold Requirement Under FMLA Is Not a Limitation on Federal Courts' Subject-Matter Jurisdiction

The Fifth Circuit has held that the provision of the Family and Medical Leave Act (FMLA) defining an 'eligible employee' as one whose employer has at least 50 employees at or within 75 miles of the employee's worksite is a substantive element of a plaintiff's claims for relief, and not a limitation on federal courts' subject-matter jurisdiction. Minard v. ITC Deltacom Communications, Inc., 2006 WL 1000572 (April 18).

Plaintiff-appellant Melissa Minard, a former employee of ITC Deltacom Communications, requested leave pursuant to the FMLA to undergo surgery required to treat a serious medical condition. ITC granted Minard's medical leave in a written memorandum, in which it stated that she was an 'eligible employee' under the FMLA and was thus entitled to up to 12 weeks of unpaid leave in a 12-month period. After Minard took the leave granted to her under the memorandum, ITC discovered that she was not an eligible employee under the statute because when she requested leave IRC was employing less than the required 50 employees at or within 75 miles of the worksite at which she was employed. Therefore, on the day she was scheduled to return to work, ITC terminated Minard's employment rather than restoring her to her former or an equivalent position. Minard filed suit in the United States District Court for the Middle District of Louisiana under the FMLA, and IRC moved for summary judgment on the ground that the court lacked subject matter jurisdiction based on the fact that IRC did not employ 50 or more employees within 75 miles of Minard's worksite on the date she requested leave. The District Court granted ITC's motion for summary judgment.

Reversing the District Court's decision, the Fifth Circuit highlighted the distinction between the requirements for federal subject matter jurisdiction and the elements of a federal claim for relief, as recently clarified in the Supreme Court's decision in Arbaugh v. Y&H Corporation, dba The Moonlight Caf', 126 S.Ct. 1235 (2006). In Arbaugh, the issue presented to the court was whether the numerical qualification contained in Title VII's definition of 'employer' determined federal-court subject-matter jurisdiction, or whether it represented a substantive element needed to satisfy a Title VII claim for relief. The Supreme Court held that ”the numerical threshold does not circumscribe federal-court subject-matter jurisdiction,” but instead 'relat[ed] to the substantive adequacy of Arbaugh's Title VII claim.' In explaining its decision, the court found that '[g]iven the 'unfair[ness]' and 'waste of judicial resources ' entailed in tying the employee-numerosity requirement to subject-matter jurisdiction, we think it the sounder course to refrain from constricting [the statute's] jurisdictional provision ' and to leave the ball in Congress' court.'

Third Circuit Finds Employer's Saturday Work Policy Not Biased Against Orthodox Jew

The Third Circuit has held that a Quest Diagnostics Inc. (Quest) policy requiring employees to work two Saturdays a month did not discriminate against an Orthodox-observant Jew who was not hired because he could not work on the Sabbath. Aron v. Quest Diag-nostics Inc., 2006 WL 859034 (April 3).

Stuart Aron, an Orthodox Jew, was not hired by Quest, a clinical testing company, for the position of phlebotomist because he could not conform to its policy requiring all employees to work two Saturdays per month. Aron sued Quest in the U.S. District Court for the District of New Jersey claiming that the company violated Title VII of the 1964 Civil Rights Act when it did not hire him. The District Court, liberally construing Aron's complaint as claiming religious discrimination based on disparate treatment, disparate impact, and failure to accommodate Aron's religious beliefs, granted summary judgment for Quest.

Upholding the District Court's grant of summary judgment, the Third Circuit found that Aron, by alleging only his own single instance of adverse impact, failed to show how Quest's practice had a disparate impact on Orthodox-observant Jews. Likewise, in accordance with the District Court's decision, the Third Circuit found that while Aron had set forth a prima facie case for disparate treatment in hiring, he failed to respond to Quest's legitimate, non-discriminatory reason for not hiring him ' that the Saturday work policy was instituted in 2000 to accommodate clients' demands for increased weekend service. This court also agreed with the District Court that there was no evidence that Quest had a discriminatory motive in not hiring Aron, or that his religious beliefs were a determining factor in that decision. Finally, in addressing Aron's assertion that Quest failed to accommodate his religious beliefs, the Third Circuit determined that Quest had a legitimate claim of undue hardship in that because the Saturday work policy pertained to all employees, an accommodation for Aron would result in unequal treatment of other employees that would burden employee morale. Further, because Quest rotated phlebotomists among its various patient service centers, it could not accommodate Aron by allowing him to work at only those centers closed on Saturdays. The Third Circuit thus affirmed the District Court's grant of summary judgment for Quest.

'Posing a Threat' Under ADA Is Term of Art Not Equivalent to 'Making a Threat'

The Second Circuit has held that the 'poses a direct threat' defense to an Americans with Disabilities Act (ADA) claim is not applicable when an employee actually 'makes' a threat because the phrase 'poses a direct threat' is a term of art with a specific statutory meaning under the ADA. Sista v. CDC Ixis North America, Inc., 2006 WL 956958 (April 13).

Plaintiff-appellant Michael Sista, an employee of defendant-appellant CDC Ixis North America, Inc. ('CDC'), an investment bank, was demoted and threatened with possible termination after his direct supervisor Adil Nathani accused him of threatening Kamal Mehta, a new employee over whom he had supervisory authority, based on a recorded telephone conversation Sista had with Mehta. After his demotion, Sista became depressed and emotional and began seeing a psychiatrist, who diagnosed him with suffering from a possible major depressive disorder and prescribed him antidepressant medication. In a subsequent meeting with Nathani, Lawrence Laier, CDC's Director of Human Resources, and Albert Zakes, CDC's General Counsel, Sista became agitated and shouted, cursed, and threatened Nathani. As a result of this behavior, Sista was placed on a leave of absence, during which he became depressed and attempted suicide. CDC requested that Sista take Family and Medical Leave Act (FMLA) leave to recover and to provide it with a letter from his treating physician when he was capable of returning to work. During Sista's medical leave, it was decided that because he never apologized or recanted the threat to Nathani, his return would be disruptive to the group, and that he should therefore be terminated. In response to Sista's claim of discriminatory termination under the ADA, the District Court determined that Sista could not make out a prima facie case because ”as a matter of law [he could not] show that he was 'otherwise qualified' to perform his job at the CDC.' The District Court found that Sista's threats to Nathani were violent and that this conduct violated CDC policy, rendering him not otherwise qualified to perform his job.

The Second Circuit, reviewing the elements of a prima facie case under the ADA and its regulations, found that the District Court had erred in holding that Sista was not 'otherwise qualified' to return to his job at CDC after his medical leave because he posed a direct threat to his co-workers, a violation of CDC policy. In determining whether a plaintiff has made out a prima facie case under the ADA, 'qualification standards' may include a requirement that an employee not pose a direct threat to the health or safety of other individuals in the workplace (citing 42 U.S.C. ' 12113(b)). The 'poses a direct threat defense' to a prima facie case of discrimination under the ADA requires an ”individualized assessment of the employee's present ability to perform the essential functions of the job ' based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence” (citing 29 C.F.R. ' 1630.2(r)).

The Second Circuit determined that '[w]hen the District Court found that Sista threatened Nathani ' in violation of CDC policy, the District Court was articulating a legitimate non-discriminatory reason for the CDC's subsequent termination of Sista, not a basis for finding that Sista 'poses a direct threat' as defined by the ADA.' While the Second Circuit acknowledged that the word threat has a common meaning, it found that 'poses a direct threat' as defined by the ADA is a term of art and is not applicable when an employee actually makes a threat. Quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Second Circuit stated, ”We have no doubt that ' misconduct may certainly provide a legitimate and non-discriminatory reason to terminate an employee. This misconduct is distinct, however, from the issue of minimal qualification to perform a job. An individual may well have the ability to perform job duties, even if her conduct on the job is inappropriate or offensive.”

50-Employee Threshold Requirement Under FMLA Is Not a Limitation on Federal Courts' Subject-Matter Jurisdiction

The Fifth Circuit has held that the provision of the Family and Medical Leave Act (FMLA) defining an 'eligible employee' as one whose employer has at least 50 employees at or within 75 miles of the employee's worksite is a substantive element of a plaintiff's claims for relief, and not a limitation on federal courts' subject-matter jurisdiction. Minard v. ITC Deltacom Communications, Inc., 2006 WL 1000572 (April 18).

Plaintiff-appellant Melissa Minard, a former employee of ITC Deltacom Communications, requested leave pursuant to the FMLA to undergo surgery required to treat a serious medical condition. ITC granted Minard's medical leave in a written memorandum, in which it stated that she was an 'eligible employee' under the FMLA and was thus entitled to up to 12 weeks of unpaid leave in a 12-month period. After Minard took the leave granted to her under the memorandum, ITC discovered that she was not an eligible employee under the statute because when she requested leave IRC was employing less than the required 50 employees at or within 75 miles of the worksite at which she was employed. Therefore, on the day she was scheduled to return to work, ITC terminated Minard's employment rather than restoring her to her former or an equivalent position. Minard filed suit in the United States District Court for the Middle District of Louisiana under the FMLA, and IRC moved for summary judgment on the ground that the court lacked subject matter jurisdiction based on the fact that IRC did not employ 50 or more employees within 75 miles of Minard's worksite on the date she requested leave. The District Court granted ITC's motion for summary judgment.

Reversing the District Court's decision, the Fifth Circuit highlighted the distinction between the requirements for federal subject matter jurisdiction and the elements of a federal claim for relief, as recently clarified in the Supreme Court's decision in Arbaugh v. Y&H Corporation, dba The Moonlight Caf', 126 S.Ct. 1235 (2006). In Arbaugh, the issue presented to the court was whether the numerical qualification contained in Title VII's definition of 'employer' determined federal-court subject-matter jurisdiction, or whether it represented a substantive element needed to satisfy a Title VII claim for relief. The Supreme Court held that ”the numerical threshold does not circumscribe federal-court subject-matter jurisdiction,” but instead 'relat[ed] to the substantive adequacy of Arbaugh's Title VII claim.' In explaining its decision, the court found that '[g]iven the 'unfair[ness]' and 'waste of judicial resources ' entailed in tying the employee-numerosity requirement to subject-matter jurisdiction, we think it the sounder course to refrain from constricting [the statute's] jurisdictional provision ' and to leave the ball in Congress' court.'