Labor & Employment Law Daily Tech with outburst disorder, fired for arguably sexist comment, loses disability bias suit
Tuesday, January 8, 2019

Tech with outburst disorder, fired for arguably sexist comment, loses disability bias suit

By Brandi O. Brown, J.D.

Declining to conclude that an employee’s inflammatory statement (stating that he hated working with women) was an outburst related to his disabilities, and thus that his termination was discriminatory, a federal district court in Georgia granted summary judgment in favor of the employer. The court found no support in the Eleventh Circuit law for the employee’s argument that the statements directly related to his conditions, including intermittent explosive and impulse control disorders, and should not have resulted in termination. In fact, the opposite conclusion was suggested in unpublished opinions, i.e., that his disability could not excuse the misconduct. The employee’s accommodation and retaliation claims also failed to pass muster (Kassa v. Synovus Bank, January 3, 2019, Land, C.).

Vet with mental disorders. Even though he suffered from a variety of mental disorders, over the course of the first year of his employment with the employer, the employee established a team of peers who were “deeply loyal to him.” When hired to work the weekend night shift as a Network Support Analyst, Lead, the U.S. Army veteran told his supervisor that he had “issues” and that “sometimes he would get angry or upset” and need to take a break. In fact, in the two years before he was hired he had been treated for several disorders, including anxiety, depression, intermittent explosive disorder, bipolar disorder, paranoid personality disorder, and impulse control disorder.

Technical “rockstar.”Apparently the employee performed pretty well in that first year because when the employer decided to outsource the Network Operations Center functions, which resulted in the layoff of many of his coworkers, he was kept on the employment roster because of his hard work and technical skill. In fact, he was later described as a “rockstar” with regards to “the technical side of things.” He was moved to the ATM day shift.

Unlike his previous role, his new position involved answering customer service calls, a task the employee was well-aware could cause problems for him. He told his supervisors and HR about his concerns, telling them he was “going to end up losing [his] temper talking to someone on the phone.” In fact, the employer originally intended to shield the employee from answering direct calls, but that changed when his supervisor was replaced. The new supervisor expected him to answer calls, directly, rather than working through other technicians.

But a communications disaster. Perhaps it was of little surprise, then, that when the new supervisor reviewed the employee’s performance in early 2017, he rated him as performing “Below Expectations” with regard to team performance, particularly with respect to communications. Later that month the employee received a written warning related to a series of “rude and unprofessional” communications he had with personnel working on the newly outsourced team. Things came to a head when, a few months later, the employee answered a call directly from a teller regarding a problem with an ATM. During the call, which started off amiably enough, he told the teller on the phone line, “Nothing personal, I hate working with women.” The teller later complained and the employee was ultimately fired. After filing a charge with the EEOC he filed suit, alleging disability discrimination and retaliation. The employer moved for summary judgment.

Outbursts are not disabilities. The court assumed the employee was disabled and was a qualified individual within the meaning of the ADA. However, the question for the court was whether he was discriminated against because of his disorders. The employee argued that he was because he was fired for an “outburst” that was related to his disorders. In fact, there was no real dispute that he was fired because of his statements to the teller, the court explained, and no real dispute that he had already been counseled and written up for previous incidents. Even if his conduct was related to his disorders, the court explained, it was “not convinced that the ADA requires an employer to maintain indefinitely an employee who is rude and unprofessional to his coworkers and who tells a female coworker that he hates working with women.”

Moreover, the Eleventh Circuit has suggested in unpublished opinions that misconduct related to a disability is not, itself, a disability. Thus, the appeals court had dismissed similar cases by plaintiffs with mental disabilities whose discipline related to conduct that was linked to that disability, such as alcohol-related misconduct, vulgar language used by someone with Tourette’s syndrome, and verbal and physical abuse by someone with PTSD.

Accommodation and retaliation claims fail. The court also rejected the employee’s claim that the employer failed to reasonably accommodate his disorders. The employee argued that he repeatedly requested accommodation after he was moved to the ATM team. He did not point to sufficient evidence to dispute that his new position had an essential function of answering customer service telephone calls from other employees. The employer was not required to eliminate an essential function. Moreover, the court explained, the Eleventh Circuit has concluded that the ADA does not provide a cause of action for failure to investigate potential accommodations, particularly in circumstances similar to these.

Summary judgment was also granted with respect to the employee’s retaliation claim—he could not point to evidence that his written rebuttal of the written warning received months before he was fired was the but-for cause of his discharge.

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