One of my favorite songs of all time is “The Gambler” by Kenny Rogers. For those who don’t know, it is a song about poker, but it might as well be a metaphor about litigation. The chorus of the song goes, “you gotta know when to hold em, know when to fold ’em, know when to walk away, know when to run….” My good friend and colleague Richard Hunt latest blog entry explore several cases where the ADA litigation strategy just made things much worse. That is, litigators made mistakes over the decision of when to hold ’em versus when to fold ’em. Along those lines, there is the case of Bresser v. Total Quality Logistics, 2014 WL 1872113 (S.D. Ohio May 8, 2014). This particular blog entry is also another example of how working from home may be a reasonable accommodation. It is, in my opinion, with respect to working from home, a much stronger situation than the case we previously discussed in this blog entry. As is my usual, the blog will be divided into facts, issues presented, court’s reasoning, and takeaways. The reader is free to concentrate on any or all of the categories.

I
Facts

What you have here is a person with social anxiety disorder that he had prior to starting work with his employer. For his social anxiety disorder, he took medication and also went to psychotherapy. During the course of his employment, he had several reviews with four different supervisors and all of them were quite good. He figured out a way to manage his social anxiety disorder by making efforts to work in secluded areas, increasing his medication usage, and even offering a coworker money to switch workstations so that he could be in a more secluded area. Either as a result of his good performance or because of a commitment to improve productivity by 20% by working from home (depending upon whether you believe the allegations of the plaintiff or the claims of the employer), the employer allowed him to work from home. The experiment was successful, with the plaintiff by the following summer after the work from home experiment began being second in the highest number of calls handled. However, some months later the plaintiff made a couple of mistakes (giving information to a truck driver when he was not supposed to, not reading notes associated with the shipment, improperly issuing electronic payments, missing an email regarding a shipment, failing to record bills of lading in the electronic system, and having provided his phone extension to a truck driver against company policy). The result of this was that the employer decided that the plaintiff should no longer work from home and directed his supervisor to prepare formal written corrective action. Plaintiff responded by disclosing his social anxiety disorder and mentioning the ADA. The employer responded by putting the plaintiff in an isolated workstation, but the plaintiff viewed that only as a temporary fix. The plaintiff then communicated further with the employer, which led to defendant requesting from the plaintiff a medical release and a current assessment of his condition by psychologists. The plaintiff did indeed furnish those letters, which said: that he had resumed treatment; working in the office was detrimental to his progress; and the best accommodation would be returning to the work from home arrangement. Two days after receiving that letter, the employer terminated the plaintiff ostensibly for not following policy in the month of July (including: failing to call a broker about a driver needing help in finding a pickup location; and not calling a broker about a driver reporting that he was waiting for part of a load that was not yet available and that the driver had concerns about being over the weight limit). The plaintiff then brought suit alleging violations of Ohio State law and the ADA. Of course, as is routine, the defense moved for summary judgment.

II
Issues

1. Is social anxiety disorder a disability?

2. Was plaintiff qualified to do his job?

3. Would a reasonable jury find that the defendant retaliated against the plaintiff for impermissible reasons rather than for lack of compliance with policy?

III
Court’s Reasoning

1. Social anxiety disorder is a bona fide disability, which is explained by the National Institute of Mental Health on their website. For that matter, any watcher of TV shows would know that certain medications treat social anxiety disorders, Paxil comes to mind. Further, the plaintiff had been treated for the condition for a decade prior to filing his complaint, was on medication, and medical professionals had indicated that he would have challenges in an office setting.

2. Plaintiff worked for defendant for more than five years during which he received positive evaluation from four different supervisors.

3. Other employees who violated policy were not fired and were treated differently from the plaintiff. The employer also skipped steps in warning the plaintiff that it afforded to others. Therefore, a jury could find that the employer terminated him on a fast track when it became annoyed with his asserting rights under the ADA. Other indicators of retaliation included negative email comments from his employer regarding the plaintiff’s work as a DJ. It also included disdain by employer’s legal counsel shown in their reply brief in which: they refer to plaintiff’s long history of policy mistakes despite his evaluation being good up until January of the year he was fired; referred to plaintiff’s “social anxiety”, specifically putting the word in quotes no less than 13 times; arguing that he was not qualified for his job despite a record to the contrary; and looking for contradiction in plaintiff’s deposition by attacking the plaintiff’s statement “that without medication he would be like a turtle without a shell”(a metaphor that the court found perfectly accurate).

IV
Takeaways

1. Considering the amendments to the ADA, it is extremely difficult to argue that a person is not a person with a disability. Further, if you are going to make that argument, be careful about how it is done. It shouldn’t be done in a demeaning way, such as putting the alleged disability in quotes. Also, it should only be done in the rare situation when the allegations reveal that it might actually be possible for a person not to have a disability under the ADA based upon the facts they allege. Such a situation will now only come up rarely. In those cases, of course, such a defense should be pursued. However, in other cases pursuing such a defense may create problems, such as it did in this case.

2. It is also worthwhile to note that the court held that the a jury could find that plaintiff had a record of a disability. It also said that whether a plaintiff is regarded as having a disability was also a jury question.

3. Don’t terminate the interactive process prematurely. Here, the plaintiff had furnished the appropriate medical documentation backing up what the employer already knew. Yet, the employer elected to terminate rather than go back to an arrangement that had proved successful in the past. In keeping with the theme of this blog entry, instead of going all in, the employer should have considered folding when they received the documentation from the plaintiff’s medical providers.

4. Treat employees alike. Here, there was evidence to suggest that the plaintiff was singled out for adverse treatment on the basis of his disability since other employees who have made mistakes were not treated in the same way. For example, they did not have their termination fast tracked for making the same or similar mistakes.

5. Given the proper facts, working from home as a reasonable accommodation should not be dismissed out of hand by the employer.

6. This case has broader impact than just social anxiety disorder. It would go for any disability that makes interacting with others difficult, such as autism.

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