Employment Law Daily Employer’s mere awareness of impairment can support ‘regarded as’ disabled claim
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Monday, October 29, 2018

Employer’s mere awareness of impairment can support ‘regarded as’ disabled claim

By Lorene D. Park, J.D.

Being removed from a position that was known to be temporary was not an adverse employment action, but a city employee’s ADA discrimination and retaliation claims were supported by other alleged adverse actions that occurred soon after she returned from medical leave, including alteration of her responsibilities and termination. Largely denying summary judgment, a federal district court in Pennsylvania analyzed whether mere awareness of an employee’s impairment is enough to establish that she may have been “regarded as” disabled and concluded that, under the ADAAA, awareness was enough. The employee also raised triable questions on whether her perceived disability was causally related to the adverse actions and whether the city’s proffered legitimate reasons were pretext for discrimination based on perceived disability and retaliation for her EEOC charge (Jakomas v. City of Pittsburgh, October 24, 2018, Hornak, M.).

The city employee worked primarily as an administrator, but she assumed the responsibilities of an acting manager in October 2013 due to a vacancy. Pursuant to the city’s “Acting Pay Policy,” she was paid more while performing the duties of an acting manager. In late 2013 or early 2014, she was diagnosed with potentially cancerous tumors requiring surgery. She took approximately one year of medical leave. One day before going on leave, the employee was informed that she would no longer be performing the duties of an acting manager and she stopped receiving the “acting pay” that went along with that on February 21, 2014. Claiming she was demoted because of a “perceived disability” of cancer, she filed an EEOC charge while on leave.

The employee returned to work without restrictions in February 2015. She claimed that she met her supervisor the day after her return and was informed that her supervisory duties would be reduced. She was also allegedly directed to clean and organize the office, including the offices of two of her subordinates. Certain tasks were allegedly assigned to assess her fitness for duty.

Discipline and termination. In the two months leading to her termination, the employee was disciplined several times for what the city considered to be insubordination and failure to follow policies. For example, she was reprimanded for using disrespectful language, making false allegations against a coworker, and signing in late. She claimed the discipline was unwarranted. In March 2015, she received three suspensions: one for calling off work without documentation; one for signing in late; and one for signing in at 8:15 a.m. but writing 8:00 a.m., not updating her calendar, and leaving without signing out. She was terminated in April.

ADA claims. She filed suit for disability discrimination and retaliation, and the city moved for summary judgment, arguing that she did not suffer an adverse employment action before taking leave because she was never demoted and her then-existing duties and pay were inherently temporary. It also argued that she could not establish that she was “regarded as” having a disability and that it had legitimate nondiscriminatory and nonretaliatory reasons for firing her.

Adverse employment actions? Granting summary judgment in part, the court agreed with the city that the employee was not demoted when her temporary position ended, and her additional pay and managerial responsibilities were reduced. Indeed, she was never promoted in the first place and the record was clear that she understood her managerial duties and corresponding additional pay would be temporary. Thus, there was no adverse employment action to support an ADA claim with respect to her alleged 2014 demotion.

On the other hand, the employee’s termination in 2015 was clearly an adverse action, and a jury could find the alteration of her job duties after her medical leave, including the assignment of menial tasks, was one as well.

“Regarded as” claim – awareness of impairment enough? As to whether she was “regarded as” disabled, the parties disputed whether an ADA plaintiff need only demonstrate that the employer was aware of an actual or perceived impairment, or whether more was required to survive summary judgment. The court noted that before the ADAAA, the Third Circuit required more than mere awareness of an impairment, but the appeals court had not issued a precedential opinion on the issue after the amendment.

Reviewing other cases and pointing to the language of the Act, the court held that Congress intended to alter judicial interpretations of “regarded as,” and “[d]emonstrating awareness of an impairment would be sufficient to support an inference of a perception of the same.” Here, the record showed more than awareness, because upon her return from medical leave, the employee was assigned menial tasks purportedly to assess her fitness for duty.

Causation. That said, there was still the question of whether the employee was subjected to the adverse actions “because of” the perceived impairment. She returned without restrictions, but she told supervisors that she still had “breast disease” and she applied for another FMLA leave for anxiety and stress. That suggested the city had reason to believe she still suffered from a medical condition. And though the city claimed her violation of office rules and insubordination was the reason for her termination, the court found the timing and circumstances suspicious.

In the court’s view, the employee’s work conditions materially worsened almost immediately after she returned from medical leave. Nearly as soon as she returned, she started receiving formal and informal warnings about her conduct, saw a reduction in her responsibilities, was ordered to clean the office, and was told to do so to assess her skills. That last action was particularly suspect because she had returned with no stated physical restrictions. Furthermore, the severe formal disciplinary actions taken by the city occurred nearly contemporaneously with the employee telling managers she had “breast disease.” In light of all of this, she established her prima facie case of ADA discrimination. The timing of the adverse actions also supported a prima facie case of retaliation under the ADA, considering she filed her EEOC charge while on leave and this was the first chance to retaliate (upon her return).

Pretext. The city proffered several nondiscriminatory and nonretaliatory reasons for its actions, asserting that: the employee’s duties were reduced because some were absorbed by the mayor’s office and others were assumed by another member of the three-person department; she was tasked with cleaning because the office recently moved and was disorganized; and it was justified in terminating her after insubordination. But to the court, there were inconsistencies that raised triable issues of fact. For one thing, despite telling the employee in early 2014 that the manager position would be eliminated, her supervisor asked to hire a new manager in November of that year. That was inconsistent with the city’s argument that the job was eliminated due to the budget and the timing of the request was suspiciously close to the employee’s filing of an EEOC charge. Likewise, a supervisor’s admission that the employee was tasked with cleaning to “assess” her skills contradicted the city’s explanation. There was also evidence suggesting that another worker was treated more favorably than the employee despite comparable violations of office policy. For all these reasons, the discrimination and retaliation claims could proceed.

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