Employment Law Daily Nuclear facility security guard fired after hallucinatory episode can’t advance regarded-as disabled claim
Monday, November 20, 2017

Nuclear facility security guard fired after hallucinatory episode can’t advance regarded-as disabled claim

By Kathleen Kapusta, J.D.

Granting summary judgment against an armed security guard’s federal and state law “regarded as” claims, a federal district court in New York found that his employer, a nuclear power plant operator, did not engage in unlawful disability discrimination when it revoked his security clearance and then terminated his employment after he experienced a hallucinatory episode he claimed was related to medication he was taking for an anxiety disorder. The employee was not a qualified individual at the time his employer terminated his “unescorted access authorization” (UAA), said the court, noting that a psychologist did not suggest his impairment was transitory or that he would be fit for duty once he stopped taking the medication. And because the UAA was an essential function of his job, he was not a qualified individual at the time he was terminated (Silver v. Entergy Nuclear Operations, Inc., November 15, 2017, Seibel, C.).

When he was hired in 2008, the employee understood that as an armed security guard with UAA to the nuclear facility, he was subject to periodic psychological evaluations and for-cause drug testing pursuant to the employer’s fitness-for-duty program. In March 2015, he sought treatment from a psychiatrist to address personal issues, including a history of anxiety and “an element of depression.” He was prescribed the drug Tofranil, but a month later, he stopped taking that medication and was prescribed Neurontin.

Hallucination. Several months later, he told the psychiatrist he had stopped taking Neurontin and requested a prescription for Adderall. He subsequently resumed taking Neurontin and in December, while at home and off duty, he had a hallucination in which believed he saw a supervisor and two children going through his belongings in his living room. He called his employer and the police and when the police arrived, he was confused and disoriented.

Evaluation. As a result of this episode, the employee was required to undergo a for-cause drug test and evaluation. Finding that he was not stable, the examining psychologist opined that he was not fit for duty and that his UAA should be revoked. His employer revoked the UAA for one year and the employee appealed, submitting a note from his psychiatrist stating he was no longer taking Neurontin and a note from a pharmacist indicating that 2700 mg per day of the drug could induce abnormal thinking. Nonetheless, his appeal was denied and he was terminated for failure to meet the psychological standards required for UAA.

He then sued, alleging his employer regarded him as having a mental disability and that its denial of the UAA and termination of his employment violated the ADA, the Rehab Act, and the New York State Human Rights Law.

Termination of UAA. The employee first argued that the termination of his UAA violated the ADA because he was a qualified individual at the time of this adverse action. Nuclear Regulatory Commission regulations require that those granted UAA be fit for duty and thus to be qualified under the ADA, the employee had to be fit for duty, observed the court, finding it undisputed that the psychologist who evaluated him determined he was unfit and should not return to work. Thus, because fitness for duty was legally required for UAA, the employee was not qualified under the ADA at that time.

Troubled man. The employee contended that the psychologist’s conclusion was based on his known anxiety disorder that had never rendered him unfit and that his hallucination likely was caused by the Neurontin, which he stopped taking shortly after the incident. However, observed the court, the psychologist found he was a “troubled man” who failed to take ownership of his behavior; whose mind by his own account was constantly scattered and racing; who suffered from “a combination of a generalized anxiety disorder and a bipolar disorder, manic”; and who had been unreliable about his medications and had not gotten the psychotherapy he needed. It was clear, said the court, the psychologist concluded the employee would be unfit until his medications were adjusted, he underwent psychotherapy, and he was cleared by his treating doctors.

Termination of employment. The employee next argued that he was a qualified individual under the ADA at the time of his termination because the UAA was not an essential function of his job. However, not only did the position description for a nuclear security officer require a UAA to the nuclear facility, the governing collective bargaining agreement similarly provided that a UAA was a necessary job qualification. Because the UAA was an essential job function, the employee’s loss of it rendered him not otherwise qualified under the ADA.

Pretext. Even assuming the employee could establish a prima facie case of disability discrimination, the court found he failed to show that his employer’s reason for the adverse actions—failure to meet the psychological standards justified the revocation of his UAA and loss of the UAA justified his termination—was pretextual. There was no evidence his employer did not believe the psychologist’s report or that it did not reasonably believe that under its policies, the psychologist’s determination required the UAA be suspended for one year and that loss of the UAA was reasonable grounds for terminating him.

While he argued that his employer terminated his UAA and his employment because it believed he was psychologically impaired, this characterization, said the court, was “a gross oversimplification that ignored the ramifications of the psychological assessment.” Nor did he cite any evidence suggesting that the existence of a psychological impairment per se, as opposed to an impairment precluding access, was the basis of the employer’s decisions.

Failure to accommodate. As to the employee’s contention that the employer was required to engage in an interactive process to determine a reasonable accommodation, the court pointed out that employers do not need to reasonably accommodate individuals who do not have an actual disability and here, the employee asserted that he was not disabled but was instead regarded as disabled. Accordingly, this claim also failed.

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