Labor & Employment Law Daily Removal of ergonomic workstation supports disability bias claim but not failure to accommodate claim
Thursday, February 14, 2019

Removal of ergonomic workstation supports disability bias claim but not failure to accommodate claim

By Kathleen Kapusta, J.D.

Although a Gonzaga University employee claimed that refusing to allow her dog into sporting events was a failure to accommodate, Gonzaga did not know it was a service animal at the time and it was concerned about trademark and licensing exposure as well as NCAA regulations on live mascots.

A Gonzaga University employee whose ergonomic workstation was revoked when she was placed on paid administrative lead after being accused of using university resources for her own private business presented a jury question as to whether the decision to remove the desk was due to legitimate inventory needs or was pretext for discrimination, ruled a federal court in Washington denying summary judgment against her ADA, WLAD, and Rehab Act claims. And while she also advanced various claims for retaliation, her failure-to-accommodate claim failed, as did her ADEA, WLAD, and Title VII claims for age and sex discrimination (Waite v. Gonzaga University, February 11, 2019, Bastian, S.).

The 55-year-old employee, who often brought her bulldog—an “informal Gonzaga mascot”—into work with her, led a very small department that specialized in securing grants for research proposals. In October 2013, she fell at work, injuring her wrist, shoulder, and knee. She requested as an accommodation an ergonomic workstation with multiple components and although it took a while to provide the complete accommodation, Gonzaga allowed her to work six-hour workdays until it was completed.

Trained as service dog. In April 2014, she was told by the VP of marketing and communications that she could not bring her dog to sporting events because of licensing and trademark concerns and NCAA regulations about live mascots. Several months later, she provided a doctor’s note indicating her dog was trained as a service dog, able to alert her to hyper- or hypoglycemia. Gonzaga allowed her to continue to bring the dog to work without requiring proof of vaccination or county licensing.

Confirmation request. In May 2016, two years and a half years after her fall, Gonzaga, pursuant to a policy of attempting to recoup and repurpose accommodations that were no longer medically necessary, asked the employee for confirmation of her continued need for the workstation. It also asked for vaccination records and verification of her dog’s license. Around the same time, an employee from another department sent out an email soliciting feedback on the employee. The email made it clear he was looking for negative responses. A week later, the employee complained to her supervisor about the rash of women over 40 who had left Gonzaga.

Paid leave. The following month, another university worker complained that the employee was improperly using Gonzaga resources to further her own private business—pet products based on natural ingredients. Placed on paid administrative leave, she filed a complaint alleging age and sex discrimination and the leave was extended. During her leave, her desk was taken away. She was ultimately returned to work and her desk was also returned after she provided the required documentation of need. She slipped and fell again at work and subsequently quit when her psychologist determined it was not advisable for her to return to work.

Disability discrimination. At issue in her ADA, WLAD, and Rehab Act disability discrimination claims was whether there were any adverse actions. The employee pointed to the delayed accommodation of the ergonomic workstation, the emails regarding re-establishing the need for that workstation and her dog’s vaccination record and licenses, the email soliciting negative feedback on her, the eventual removal of her workstation, being placed on administrative leave, her delayed return to work from that leave, her change in command upon returning to work, the reporting of her secondary source of income during her leave after her second injury, and Gonzaga’s failure to follow-up regarding light-duty accommodations, Gonzaga claimed none were adverse as a matter of law.

Observing that the employee alleged the desk was essential to her capability to perform her job, and thus its removal was an adverse action, and that it could examine Gonzaga’s actions in the aggregate, the court found she made out a prima facie case. And while Gonzaga provided a nondiscriminatory reason for removing the desk—supply management and cost reduction—the employee argued that there were other sit-stand desks in storage at the time and thus there was no actual inventory need to revoke ergonomic workstation. Thus, this claim survived summary judgment.

Retaliation claims. Turning to her Title VII, WLAD, and ADEA retaliation claims, in which the employee alleged she was placed on leave shortly after raising concerns about the number of women over 40 who had left Gonzaga, the court first noted that while being placed on paid administrative leave is not an adverse action for a direct discrimination claim, it is retaliatory conduct. Further, given the proximity in time of her alleged report and her placement on leave, the causation prong was likely met. And though Gonzaga claimed that it placed her on leave to protect the integrity of the investigation, it admitted that this policy was not uniformly implemented, leaving open the inference that it was retaliatory.

As to her ADA and Rehab Act retaliation claims, she alleged the emails and removal of her workstation were retaliation for requesting the workstation and then reaffirming the need for it. Noting that the revocation of a previously granted accommodation can be retaliation for other protected activity, and that the employee also claimed that being placed on administrative leave was in retaliation for her requests for continued accommodation, summary judgment was denied as to these claims.

WIIA claim. The employee also alleged that Gonzaga retaliated against her by surveilling her social media accounts, challenging whether it was liable under the Washington Industrial Insurance Act (WIIA), and reporting her potential source of secondary income to the Department of Labor and Industry after her fall. While the university argued that it was legally permitted to appeal coverage determination, the question, said the court, was not whether it had a legal right to challenge the coverage and income calculation, but whether it did so with a retaliatory intent. Here, a Gonzaga worker monitored the employee’s social media accounts, intending to find proof that she was driving a car and thus not adhering to her doctor’s limitations. Not only was this after the protected conduct had occurred, it was not typical for the worker, observed the court, and thus a juror could find the worker was at least partially motivated by a retaliatory intent. Accordingly, this claim also survived.

Failure to accommodate. The employee’s failure-to-accommodate claim did not, however. The delay in providing an ergonomic workstation was not a failure to accommodate, as employers are entitled to choose between accommodations and Gonzaga provided an alternative accommodation of six-hour workdays while waiting to install the equipment. As to Gonzaga’s refusal to allow her dog into sporting events, it did not know at that time it was a service animal and the university was concerned about trademark and licensing exposure, as well as NCAA regulations on live mascots. Nor was removal of the desk a failure to accommodate as the employee did not timely provide verification of her continued need for it and once she did, the desk was returned to her.

Age and sex discrimination. Finally, the court found the employee’s ADEA, WLAD, and Title VII claims for direct age and gender discrimination legally insufficient. Her allegation that other employees had sit-stand desks without requiring an accommodation was insufficient to establish disparate treatment as there was no allegation of any men or younger women who were allowed to continue receiving medical accommodations without establishing an active disability. In addition, her reliance on anecdotal evidence of other women who were over the age of 40 and who ceased working at Gonzaga or were demoted was insufficient to survive summary judgment.

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