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Separation from — or firing — harasser not reasonable accommodation for anxiety

The harassment-triggered anxiety of an employee was a “disability” under a post-ADAAA analysis (but not as to pre-ADAAA events), ruled a federal district court in New York. However, summary judgment was granted on his non-accommodation claim because the employer’s attempts to separate the employee from his foreman did not work, and getting rid of the foreman would not be a “reasonable” accommodation. The employee’s hostile work environment claim also failed because he did not show he was singled out for harassment based on a disability (Whalen v City of Syracuse, July 15, 2014, Kahn, L). “Horseplay.” The long-time public works employee had known the foreman of his work crew since he was 17 years old. Since the late 1990’s, the two had a series of workplace conflicts. In one, the foreman allegedly ordered the employee to do work without adequate compensation and then verbally abused him when he refused. In July 2007, the foreman allegedly assaulted the employee in front of coworkers, though the employee struck back. The employee obtained workers’ comp based on the incident and filed a grievance with his union. After investigating, the employer concluded the employee was the victim of horseplay that violated its work rules. In a January 9, 2008, letter, the employee’s doctor stated that the employee suffered from anxiety and depression that developed after “a workplace alteration” and would “continue to persist in association with continued workplace strife.” It noted that the employee required medication and psychotherapy. After another physical altercation in July 2008 that resulted in the employee being suspended for five days (reduced to three days after a union grievance was filed), the employee requested work assignments that would not bring him into contact with that foreman. The employer tried to accommodate him but it could not keep the two completely separate due to the nature their work. According to the employee, the harassment continued. He filed suit under the ADA alleging failure to accommodate and hostile work environment. No disability pre-ADAAA. Noting that the ADAAA, which substantially revised the definition of “disability,” took effect January 1, 2009, the court bifurcated its analysis and concluded that before that date, the employee was not “disabled” within the meaning of the ADA. He did not offer any proof that his anxiety and depression significantly restricted his ability to perform a broad class of jobs but only asserted that he was limited in his ability to work as a laborer for the city. That was not enough to show an actual disability under the pre-2009 definition. Nor did the employee show that he had a record of a disability that limited his ability to work in a broad class of jobs, because his six months of medical leave following his workers’ comp award was too short a duration to constitute a substantially limiting impairment, the court found. Similarly, he offered no evidence that the employer regarded him as incapable of performing a broad class of jobs. The fact that it occasionally changed his assignments when he could not operate heavy equipment due to medication was not, on its own, enough to support a “regarded as” claim. Because the employee failed to show he was disabled under the pre-2009 ADA, his reasonable accommodation claim failed to the extent it was based on pre-2009 actions. Disability and accommodations under ADAAA. After explaining how the ADAAA expanded the definition of disability, the court found that the employee’s anxiety and depression “clearly” satisfied the actual disability prong. It therefore continued its analysis and found that no rational factfinder could determine that the employer failed to make reasonable accommodations that would allow the employee to do his job. Notably, the employee did not allege that the employer totally failed to accommodate him. Indeed, the record established that it let him take medical leave when he could not operate heavy machinery due to medication. The essence of the employee’s claim, explained the court, was that being with the harassing foreman triggered his anxiety and depression, and the employer failed to accommodate this aspect of his disability. However, he did not identify a reasonable accommodation that would allow him to do the essential functions of his job. He requested that the foreman be kept away from him but, even assuming that was reasonable, that would not allow the employee to do his job. Indeed, it was undisputed that the employer tried to separate the two but failed because the harassment allegedly continued and the employee sometimes requested the crew on which the foreman worked (on one occasion, he filed a grievance when the employer refused). It appeared to the court that the only action the employer could have taken to enable to the employee to do his job would be to remove the foreman from its employ but “such drastic personnel action is presumptively unreasonable.” For these reasons, summary judgment was granted on the ADA failure to accommodate claim. Hostile work environment. Again proceeding with only the post-2009 conduct since the employee was not “disabled” under the pre-ADAAA definition, the court noted a “confusing overlap” between the failure to accommodate and the HWE claims. With the former, the exposure to the alleged harasser as a trigger for anxiety and depression was the disability to be accommodated, but with the HWE claim, the disability was the anxiety and depression and the exposure to the alleged harasser was the alleged adverse action. Thus, the harassment was irrelevant to whether the employee was a “qualified individual.” With that in mind, the court concluded that the employee appeared to be a qualified individual under the ADA for purposes of his HWE claim, given the employer’s statement that it accommodated him by allowing him to take medical leave when he couldn’t operate heavy machinery and his impairments did not otherwise prevent him from doing his job. Nonetheless, his HWE claim still failed because he provided nothing but conclusory allegations that he was singled out and subjected to a hostile work environment because of his anxiety and depression. Indeed, his allegations suggested that many other employees were also subjected to harassment by the same foreman. Summary judgment was thus granted on the HWE claim.

By Lorene D. Park, J.D.