Labor & Employment Law Daily Employee denied restroom access despite medical need advances bias, retaliation claims
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Tuesday, October 23, 2018

Employee denied restroom access despite medical need advances bias, retaliation claims

By Kathleen Kapusta, J.D.

While a close call, an employee who was neither terminated nor demoted nonetheless allegedly suffered a series of events, including being prevented from using the bathroom despite having a medical need to do so, that could be reasonably construed as producing a materially adverse employment action, a federal court in Illinois ruled, denying summary judgment on her ADA disability discrimination claim. Noting that the threshold for establishing an adverse action is even broader in the retaliation context, the court also denied summary judgment on her ADA and Title VII retaliation claims, which were based on her requests for accommodation, her complaints of disability discrimination, and a charge she filed with the EEOC (Burroughs v. Cook County Clerk, October 18, 2018, Castillo, R.).

After suffering a series of strokes prior to 2014, a clerk in the county clerk’s office had difficulty walking and balancing and needed to use the bathroom more frequently. In July 2016, she was purportedly on her way to the bathroom shortly before lunchtime when her supervisor told her she needed to clock out first. According to the employee, despite telling her supervisor she had an urgent need to use the bathroom, she was still required to clock out. As a result of the delay, the employee claimed, she urinated on herself. She also claimed that other clerks were not required to clock out before using the bathroom. She complained to the department director and was allowed to take leave for the rest of the day.

Didn’t act inappropriately. The next day, she complained to the HR director, who investigated but did not speak to any witnesses identified by the employee. Although the HR director felt it was a “serious matter,” she found the supervisor did not act inappropriately. She also asked the employee to submit any documentation she had relating to her “potential medical condition.” In response, the employee submitted a note stating that she suffered from syncope, was going to be further evaluated, and could resume restricted work as long as she was given a “consistent schedule 9-5.”

Dig up some dirt. In August, the employee alleged, a coworker told her that if she didn’t drop her complaint about the bathroom incident HR was going to “dig up some dirt on her.” He also told her the HR director wanted to see her. When she to the HR office, the director purportedly began screaming at her. The employer, however, claimed the employee acted strangely, mumbled, hit herself in the head, and said she felt like “walking in front of a bus.” The HR director escorted the employee to the county’s health services department where she was examined by a doctor who found her fit to return to work.

Meeting about complaints. On September 1, at a meeting attended by the employee, her attorney, the HR director, a county attorney, and the employee’s supervisor, the HR director made clear that “if employees need to use the bathroom, they should be allowed to do so without interference.” A few hours later, the employee was directed to clock out and not return until she obtained a medical release from a county doctor. She was seen by the doctor the next day. He ultimately released her to return to work a week later with a “consistent 9-5 schedule.”

No overtime. In October, the employee was informed by the HR director that she could not work overtime on Saturdays and Sundays because of her 9-5 schedule unless she got a release. That same month, she filed a charge with the EEOC. In December, she was told to see the county doctor as soon as possible because her release had “expired.” She obtained a note from her own doctor saying she could continue to work her regular schedule. In January, she was disciplined by a new supervisor for a $60 debit missing from her cash drawer. Several months after that, she claimed the supervisor purposely walked into her and stomped on her foot.

Disability discrimination claim. At issue in her ADA disability discrimination claim was whether she suffered an adverse employment action. Accepting the employee’s version of events as true and drawing all reasonable inferences in her favor, the court found she experienced “several troubling incidents related to her disability,” including being prevented from using the bathroom even though she had a medical need to do so, causing her to urinate on herself and suffer considerable distress and humiliation; being told to go see the HR director who yelled and cursed at her for more than an hour; being forced to undergo a medical exam by the county health department despite having a medical release from her own doctor; being told to clock out and return to the county doctor after a meeting in which her bathroom complaint was discussed; being forced to take sick leave to see her own doctor even though she still had a valid medical release; being told her medical release did not permit her to work overtime even though she had previously worked overtime on several occasions without incident; and being told that HR planned to dig up dirt on her and have her fired if she did not drop her complaints.

Although a close question, the court found she presented enough direct and circumstantial evidence to survive summary judgment on this claim as a reasonable jury could find this series of events produced a materially adverse employment action.

Retaliation. Noting the broader threshold for establishing an adverse action in the retaliation context, the court found that a reasonable jury could conclude that denying the employee overtime opportunities, threatening to dig up dirt on her if she did not drop her complaints, and forcing her to undergo unnecessary medical examinations by the county doctor might dissuade a reasonable worker from making or pursuing a complaint about disability discrimination.

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