By Nicole D. Prysby, J.D.
Denying summary judgment on ADA disability discrimination claims by a billing assistant who suffered from post-traumatic stress disorder (PTSD), a federal district court concluded that notes and communications concerning her performance reviews indicated she was a good worker but was having extensive personal and communication issues, supporting her claim that she was “actually disabled.” The same documentation also raised a triable issue on whether the employer regarded her as disabled. Moreover, the court found that a question of fact existed on whether the employee’s requested accommodation—two extra 10-minute breaks per day—was reasonable, so that ADA claim survived as well (Schirnhofer v. Premier Comp Solutions, LLC, March 28, 2018, Eddy, C.).
PTSD and communication problems. The employee was diagnosed with PTSD and anxiety, among other disorders. Her mental health remained essentially static until 2012, when her newborn grandson died. She began having problems interacting and communicating with coworkers, as documented in her performance reviews and in employer emails.
After getting into an argument with a coworker, the employee was required to meet with an HR rep, who learned the employee had been allowed to take additional breaks beyond those allowed by policy. The employee was told she could not take additional breaks unless she made a formal accommodation request and provided medical documentation. The employee’s therapist sent a letter requesting that she be allowed to take short breaks as needed, but more information was requested. The therapist submitted an accommodation form requesting that the employee be allowed to take one additional 10-minute break in the morning and one in the afternoon. These breaks would allow her to cope with her PTSD, which tended to build up stress after about two hours. The therapist indicated the employee could perform all job duties with the accommodation but she was limited in the major life activity of communicating with others.
Fired for Facebook posts. The employer determined that communicating with others was an essential function of the job and it could not accommodate the employee. Soon after, it learned she was posting messages on Facebook about haters and being bullied, but did not specifically mention the employer. For example, she posted during her lunch hour that she understood how people who are bullied “commit suicide” and wrote “f*ck it the bullies win I am done trying to deal …” The employer fired the employee for posting messages that it deemed threatening, in violation of the employer’s social media policy.
The employee brought discrimination and failure to accommodate claims under the ADA and state/county law. The employer moved for summary judgment on all claims.
ADA discrimination claims. The employer argued that the employee failed to show she was limited in any major life activity and the diagnoses from her medical providers should be disregarded because she did not recall being diagnosed with PTSD. But the court found that she produced sufficient evidence of PTSD and anxiety, based on depositions from her treatment providers and the report from her expert witness.
The court rejected the employer’s argument that the employee was not actually disabled because she could communicate effectively with her family, medical professionals, and coworkers on occasion, and she had never before requested an accommodation. In the court’s view, she provided sufficient evidence of an actual disability based on the employer’s records, which described her as “beyond sensitive” and having extensive personal issues and communication problems. Her PTSD created a significantly decreased ability to interact and communicate at work as compared to the average person.
Regarded as disabled. The employee also produced sufficient evidence that she was regarded as disabled by her employer. The employer claimed that it did not regard her as disabled because it gave her excellent performance reviews and even after it denied her request for an accommodation, offered to transfer her to another open position. But once again, the court found that the negative comments about the employee in the employer’s documentation showed that it believed she was disabled. There was also evidence that a supervisor had compared the employee to a movie character (Cybil) who suffered from multiple personalities.
Failure to accommodate. As to the employee’s ADA failure-to-accommodate claim, the employer argued she was already given two breaks daily and two additional breaks were not reasonable. It also argued that the existing breaks and lunch were sufficient to allow the employee to take a break every two hours. But the court found that a question of fact as to exactly when the breaks needed to occur and whether the requested accommodation would be reasonable.
And while the employer argued that the employee had declined its offer to move her desk away from coworkers, the court found it was not clear that the employee had rejected an offer of a reasonable accommodation when she refused to move her desk because there was no evidence that moving her desk would have helped her PTSD symptoms.
Finally, the employer argued that the employee could not have had a good faith belief that she was entitled to the extra breaks because she had never asked for extra breaks before. But the court noted that the employee had for a time been allowed to take extra breaks on an informal basis. In addition, her doctor had suggested the additional breaks on the accommodation form requested by the employer. These facts provided the employee with a reasonable, good faith belief that she was entitled to request the accommodation of the additional two breaks.
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