Employment Law Daily Disparate discipline of bipolar clerk suggests bias, but not retaliation
Wednesday, March 23, 2016

Disparate discipline of bipolar clerk suggests bias, but not retaliation

By Lorene D. Park, J.D. Though an employee and a coworker both behaved unprofessionally in an office altercation, only the bipolar employee was fired. Based on this, as well as inconsistencies in the proffered reason for her discharge, a federal district court in Indiana denied summary judgment on her discrimination claims under the ADA and Rehab Act. However, her retaliation claims failed for lack of any protected activity (Scheidler v. State of Indiana, March 17, 2016, Lawrence. W.). The a clerical assistant had received promotions and her performance evaluations were generally positive. In 2009, she was diagnosed with depression, bipolar disorder, and post-traumatic stress disorder (PTSD). She took FMLA leave due to a “complete breakdown” and, when she returned, asked her supervisor to let her know if she began behaving differently so she could address it with her doctor. Though she disclosed her diagnosis to her supervisor, she told others that she was “skittish” and asked that they not startle her or raise their voices. Altercation with coworker. In 2010, the employer let her modify her schedule so she could start carpooling with a coworker, who also oversaw some of her work, as well as with the coworker’s sister-in-law. Things appeared to have gone smoothly for a time but, in May 2013, the employee and her coworker got into an altercation over workload redistribution after another employee transferred out of the department. The coworker allegedly told the employee she was asking “bitch questions” and then later told her sister-in-law: “I will not be surprised if I don’t string her up by the end of the week.” The employee overheard and confronted the coworker, who then said “I could just strangle you” and made a strangling gesture. The coworker then suggested the employee find another job and “get out of here” and mentioned that the employee had many days crying on the way to work and had to take Xanax. Employee fired. The employee emailed the supervisor, who reported the incident to HR, which investigated. Ultimately, the employee was fired and the coworker was issued a written reprimand. The employer based the disparate discipline on the fact that the employee had also made a prior inappropriate comment in the elevator to the coworker’s sister-in-law. Specifically, she was complaining about favoritism and said “[i]t’s not what you know, it’s who you blow.” Disability discrimination. Seeking summary judgment on the employee’s discrimination claim under the ADA and the Rehab Act, the employer first argued that she did not show her condition substantially limited a major life activity. The court disagreed. Federal regulations implementing the ADAAA provide that “major depressive disorder, bipolar disorder, post-traumatic stress disorder . . . substantially limit brain function.” Thus, there was no need for the court to go any further in its analysis and concluded the employee had a disability covered by the ADA. As for whether the employee was meeting the employer’s legitimate expectations, the court agreed that an employer would be justified in firing an employee who engaged in the behavior to which the employee here admitted. However, that did not end the analysis because there was a similarly situated coworker who also behaved unprofessionally in the same altercation but was not fired. Though the employer argued that the added elevator comment by the employee showed the two did not engage in identical comments, the court explained that the elevator statement was similar enough to the other conduct to make a prima facie case. Pretext. There were also triable issues on whether the proffered reason for the employee’s termination was pretextual. In addition to the disparate levels of discipline meted out for similar misconduct, the employee raised concerns about how her prior elevator statement came to the employer’s attention. It was the coworker who reported it during the employer’s investigation of the altercation. Also, while the employer claimed it had previously fired a non-disabled individual for a single instance of using the n-word at work, the employee pointed to evidence that the other individual was fired for more than just that, and had a history of discipline and performance problems. For these reasons, summary judgment was denied on the disability discrimination claims. (Her failure-to-accommodate claim could not proceed because it was duplicative of her discriminatory termination claim and she did not differentiate the two.) No protected activity to support retaliation claims. Summary judgment was granted on the employee’s claims that she was fired for opposing discrimination. Contrary to her assertion, her elevator comment “It’s not what you know, it’s who you blow” was not protected activity, found the court. Specifically, she could not show she had a sincere, good-faith belief she was opposing an unlawful practice and her comment did not involve sex discrimination prohibited by Title VII. The court explained that the mere fact that a comment can be interpreted to involve sexual acts does not make it a complaint of sex discrimination or harassment. Nor did the employee show that she made a protected complaint of disability discrimination under the ADA or Rehab Act. Vaguely asserting that she “complained about discrimination in May of 2013” was simply not enough. Though she told HR she suffered from bipolar disorder and PTSD, she did so to explain her reactions to the coworker during their altercation, she was not complaining to HR that she was experiencing discrimination because of her disability.

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