New opinion — employer loses case by waiving its winning argument

Robinson v. First State Community Action Agency — civil — affirmance — Fuentes

The defendant in an employment-disability suit waived a meritorious legal argument by failing to assert it prior to appeal after accepting the plaintiff’s erroneous case theory, encouraging the court to adopt an erroneous jury instruction, and failing to raise the error in post-trial briefing. Because the error was waived, the court rejected the defendant’s argument that the court should review its jury-instruction claim for plain error.

The waived error? In district court, the plaintiff admitted that she could not prove that she was actually is dyslexic, but she alleged that her employer violated the Americans with Disabilities Act when it regarded her as dyslexic yet refused to accommodate her perceived disability. But a 2008 amendment to the ADA made clear that so-called regarded-as plaintiffs are not entitled to accommodation.

The court’s willingness to find waiver of a winning legal argument is correct in my view, but I still wonder why it has refused to do that in some other cases, most recently Bistrian.

Joining Fuentes were Krause and Cowen. The appeal was decided without oral argument.