Employment Law Daily Employer’s actions after accommodation request, bias complaints were neither materially adverse nor retaliatory
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Wednesday, March 27, 2019

Employer’s actions after accommodation request, bias complaints were neither materially adverse nor retaliatory

By Kathleen Kapusta, J.D.

Although she engaged in protected activity when she asked for a bathroom break and when she complained about disability discrimination after the break was denied, she failed to establish causation regardless of whether the complained of acts were viewed independently or cumulatively.

Granting an employer’s motion for judgment on the ADA retaliation claim of a Cook County Clerk’s office employee, who alleged the office retaliated against her through a series of actions after she requested a bathroom accommodation and then complained about disability discrimination, a federal court in Illinois found she failed to show she suffered a materially adverse action. Although the court believed “the defendants need to have more positive and constructive interactions” with the employee, it was left with no choice but to enter final judgment in favor of her employer (Burroughs v. Cook County Clerk, March 22, 2019, Castillo, R.).

Prior to joining the clerk’s office in 2008, the employee suffered a series of strokes that affected her ability to balance, walk, and control her muscles. In July 2016, she was on her way to the bathroom shortly before lunchtime when her supervisor told her to clock out first. 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 urinated on herself. She complained to the department director and was allowed to take leave for the rest of the day.

Complaint. The next day, she complained to the HR director who found the supervisor did not act inappropriately. She also asked the employee to submit documentation 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.” Her return to work authorization provided that she was unable to work from August 17 to “TBD.”

Dig up some dirt. On August 22, she alleged that 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 went to the HR office, the director purportedly began screaming at her. The director, 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.

Sent home. Several days later, after a meeting with the HR director, the employee was instructed to go home until her doctor cleared her to return. Although the employee had been working pursuant to the August 17 authorization, the HR director claimed she did not see it until September 1 and she was confused by the statement the employee was unable to work from “8/17/2016 to TBD.” On September 7, the employee’s doctor signed another return to work form authorizing her to return effective August 18 with the restriction she maintain a consistent 9-5 schedule.

Claims. She subsequently sued, asserting disability discrimination and retaliation claims under the ADA. After the court denied the employer’s summary judgment motion, her discrimination claims were tried to a jury and her retaliation claim was tried to the bench. Upon the close of her case, the employer moved for judgment on the retaliation count, which the court took under advisement pending the remainder of the trial. After the court returned a verdict in favor of the employer, the court granted its motion for judgment on her retaliation claim.

Protected activity. The court first found the employee proved by a preponderance of the evidence that she engaged in protected activity. She requested a bathroom accommodation and subsequently complained about the interaction with her supervisor and what she perceived as disability discrimination.

No adverse action. She failed, however, to show she suffered a material adverse action. She claimed the clerk’s office retaliated through a series of actions including requiring her to take off work for several days until she could obtain an updated doctor’s note despite having already worked under a previous one. Her own doctor, however, testified that his August 17 letter had not included a return to work date and the HR director testified that she sent the employee home for that reason. Thus, she failed to show the directive to remain out of work until she obtained a note authorizing her return was because of her prior protected activity. And without an authorized return-to-work date, the required use of a sick day to obtain pay while not at work similarly failed to demonstrate retaliation.

OT denial. And she claimed that the denial of her request to work weekend overtime was also retaliatory, buy there was no evidence to show the denial was for any reason other than her 9-5 work restriction, said the court, noting the HR director’s testimony that she believed the restricted schedule disqualified the employee from evening or weekend work.

As to her claim she was required to work longer than her coworkers, there was no evidence to suggest that even if this was the case, it was because of her protected activity rather than because she on occasion had to stay longer in order to reconcile her register. Nor could she show her exchange with her coworker who told her she would be fired if she didn’t drop her lawsuit an adverse action as there was no evidence the employer knew about or orchestrated the exchange.

In sum, said the court, while the incident in which she was denied a bathroom break doubtless caused the employee a great deal of dismay and tension, she failed to show that the complained of conduct was in retaliation for her accommodation request or related complaints.

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