Employment Law; Federal Court, Tampa: Employee with obvious disability allowed to proceed on his failure to accommodate claim and on his discrimination and retaliation claims. (Tampa employment law attorney James Moten Thompson represented the Plaintiff.)

In a recent employment law case argued in Federal court in Tampa, the court ruled that because his disability was open and obvious, an employee did not need to ask for obviously needed accommodations from his employer. The court allowed employee to proceed with his accommodations claim as well as his employment law disability and retaliation claims against the City of Venice. Tampa employment lawyer James M. Thompson represented the employee.

Reprinted by permission of CCH’s Employment Law Daily. © 2011 CCH Incorporated. All Rights Reserved.

A police department records clerk who was injured while employed by another department could pursue his discrimination, retaliation, and failure to accommodate claims under the ADA and state law, ruled a federal district court in Florida (Hodgetts v City of Venice, Florida, June 6, 2011, Kovachevich, E.) However, he failed to present evidence to sustain his harassment and hostile work environment claims. In a separate ruling, the court granted the employee’s motion in limine, seeking to exclude evidence related to an investigation the employer conducted relating to notice of discrimination from another employee.

Background. The employee’s coworkers, including his supervisor, knew the employee had trouble walking and using his hands. In order to walk, he used a cane and wore a knee brace. Also, he received help from other employees with copying and filing, and was exempted from certain duties normally associated with his position. The employee filed several charges with the EEOC relating to his physical disability. The first came after he applied for, but did not receive, a records supervisor position. The EEOC concluded that the employee was more qualified than the individual given the position and the city settled with him. Thereafter, the employee filed another EEOC charge, as well as a union grievance against the supervisor for making statements the employee deemed derogatory. Finally, in August 2008, the employee filed a third EEOC charge after he was terminated. Initially, the EEOC issued a right to sue letter, but retracted it to perform further investigation. Having done so, the agency issued a letter of determination making no finding regarding the employee’s harassment and high workload claims, but finding merit in his retaliation claim. In 2005, a new supervisor took over, and gave the employee a positive performance review with no unsatisfactory ratings. Thereafter, a coworker claimed to have overheard a conversation between the new supervisor and the former supervisor in which they discussed means to overwork the employee or otherwise cause him to quit. During the conversation the new supervisor learned about the employee’s previous EEOC charges. The coworker noticed that after the conversation the employee’s workload increased, and policy changes made his job more difficult.

The following year, the employee’s performance review was significantly lower than in the past. He complained to the police chief about the review, as well as to his supervisor about his increased work load. In response, there was an “official” redistribution of work assignment, which added several new duties to the employee, including more copying and filing. Additionally, there was a directive that prohibited coworkers from helping  each other out without supervisor approval.

In June 2007, the coworker who had overheard the conversation discussing overworking the employee informed him of that conversation. He had the coworker sign, date, and notarize a letter than he used to file a union grievance that ultimately resulted in an internal affairs investigation. The investigation exonerated the supervisor and recommended that no action be taken. When the employee received his next performance review it was mainly unsatisfactory. He was placed on a performance review plan, and told if he received one more “unsatisfactory” he would be terminated. Thereafter, the employee began a medical leave of absence resulting from depression, anxiety, and related health issues. After he returned  from FMLA leave, he was terminated immediately. Thereafter, he commenced suit, and the employer filed a motion for summary judgement.

Discrimination claims. The employee could proceed with his ADA and state law discrimination claims, the court concluded. There was no dispute that the employee was disabled, that he was qualified, and that he presented sufficient evidence to support a finding that other non-disabled similarly situated employees were treated more favorably than he was. A reasonable jury could find that he had substantially higher workload and was treated more harshly than other record clerks who did not suffer from disabilities. By definition, the court wrote, there was a genuine issue of material fact as to whether the employee suffered an adverse employment action. While the employee argued that his increased workload and poor performance evaluations, combined with the PIP and threat of termination constituted an adverse employment action, the employer argued that his only adverse employment action was his administrative termination. However, the court concluded the statements made by the coworker in her letter and deposition regarding the conversation that she overheard were “fairly strong circumstantial evidence of discriminatory motive.”

Failure to accommodate. Similarly, there were genuine issues of material fact with respect to the employee’s ADA and state law failure to accommodate claims, and so summary judgement was denied on each of those claims. While the employer argued that the employee did not ask for accommodations and to the extent he did, they were never explicitly denied, the employee countered with the fact that the employer knew about his disability. The court agreed, noting that it appeared from the record that the employee had obvious difficulty walking, and that he wore a knee brace and used a cane. Further, the employee argued that the employer violated the ADA not by failing to provide reasonable accommodations, but rather by providing them then revoking them at a later time.

The employee’s 2007 performance review, which followed on the heels of the internal affairs investigation, was sufficient to serve as direct evidence of retaliation, the court concluded. The employee engaged in protected activity by presenting the coworker’s letter to his union rep, who in turn initiated an internal affairs investigation. Within days, the employee received an extremely poor performance evaluation, was placed on a PIP, and was threatened with termination. Because the employee developed severe depressions, the actions could be considered materially adverse, the court wrote.

Harassment claim. However, the employee’s harassment and hostile work environment claims were dismissed on summary judgement. To sustain a claim for hostile work environment or harassment, there must be evidence of more than “merely offensive” utterances, the court wrote. The employee failed to demonstrate that statements made by the supervisor were severe or frequent, or more than merely offensive.

Motion in limine. In a separate ruling, the court granted the employee’s motion in limine, which sought to exclude evidence related to the investigation conducted by the employer into the letter the coworker gave to the employee. The employee argued that the findings of the investigation lacked foundation and constituted an improper lay opinion about the coworker’s credibility. The court concluded that the major probative value of the evidence resulting from the internal affairs investigation into the letter related to the harassment and hostile work environment claims. Thus, the evidence would have little probative value, but could be highly prejudicial in determining the credibility of the coworker and her letter, the court concluded. This is the role of the jury.

James Moten Thompson (Nelson, Bisconti, Thompson & McClain, LLP) for plaintiff. Dale A. Scott (Bell & Roper, PA) for Defendant.

Reprinted by permission of CCH’s Employment Law Daily. © 2011 CCH Incorporated. All Rights Reserved.