Hope everyone had a great weekend. The deadline for submitting my blog for the ABA top 100 legal blawgs expired last night. A few have let me know that they have nominated me. Also, I know from last year that it is entirely possible that someone nominated me without letting me know. In either event, your support is very much appreciated. Even if you didn’t nominate me but love to read my blog, your support is appreciated there as well. If memory serves, it won’t be until about December that I find out whether we made it again. Of course, I will keep everyone posted.

Today’s case concerns a variety of causes of action that might arise with respect to the ADA including: failure to promote, retaliation, and breach of confidentiality. The case is Gascard v. Franklin Pierce University, which can be found here (it appears to be an unpublished decision since only a Lexis cite is available). As is typical with my blog entries, I have divided the blog entry into several categories: facts, court’s reasoning (failure to accommodate); court’s reasoning (failure to promote); court’s reasoning (breach of confidentiality); court’s reasoning (retaliation); where was the FMLA claim?; Miscellaneous (individual liability); and takeaways. The reader is free to focus on any or all of the categories.


Plaintiff was a professor of art history at the University and its sole art historian since 1997 as well as the director of the University’s art galleries in 1998. In late 2011, she took 2 1/2 months of short-term disability leave due to situational stress, but returned to teaching in early 2012. Later that year, in October, she applied for the position of coordinator for the Department of fine arts, a position which she was completely qualified for. Nevertheless, the University gave the post to one of her colleagues, a man under the age of 40 who had worked there only since 2010. Shortly after that, she provided her immediate supervisor with a note from a physician stating that because of stress-related factors, she was restricting the plaintiff from meeting attendance and assemblies. In response to that request, the University gave her permission only to leave meetings if she felt symptoms of situational stress, an arrangement which her physician found precarious. In February 2013, she filed a charge of disability discrimination against the University with the EEOC. Later that month, she was the sole volunteer to offer her services to a committee of long trusted colleagues (general liberal education committee), but was without discussion denied that position. The position was awarded to a male colleague that had not volunteered with the explanation that he needed more committee work. A few months later, the plaintiff received a performance review where her requirement for more service to the University was pointedly indicated. The plaintiff also alleged that after she had charged the University through the EEOC, it disseminated personal and sensitive material to a colleague in a position statement to the EEOC charge. In October 2014, she began a period of FMLA leave and returned to work in mid December 2014. On January 13, 2015, the Dean of the University informed her that she would no longer coordinator of the art gallery since she had given that responsibility to another faculty member while she was on leave. While the plaintiff acknowledged that she had been scheduled to take a sabbatical during the spring semester, the semester had yet to start at the time Dean announced that she had been relieved the responsibilities over the gallery. Further, the Dean had also suggested to her that her responsibilities would not be returned to her even after she returned from the sabbatical. She filed a pro se complaint alleging the following causes of action with respect to the ADA: failure to accommodate, failure to promote, retaliation, and breach of confidentiality. The defense moved to dismiss.

Court’s Reasoning (Failure to Accommodate Claim)

1. To make out a reasonable accommodation claim, a plaintiff has to show: that she is a person with a disability as defined by the ADA; that she is an otherwise qualified individual (the ADA uses the term, “qualified” now while the Rehabilitation Act continues to use the term, “otherwise qualified.” The two terms are identical in their meaning); and that the defendant knew of her disability and did not reasonably accommodate it.

2. A factual question existed as to whether the University’s claim that they allowed her either to participate by phone or to leave meetings as necessary to avoid symptoms of situational stress was a reasonable accommodation because: her physician deemed it precarious; she informed the defendants that the accommodation did not prevent the bullying at the meetings from continuing to exacerbate her stress; and other faculty members had been given a blanket waiver from attending meetings altogether.

Court’s Reasoning (Failure to Promote Claim)

1. To make out a claim for failure to promote, a plaintiff has to show: she is a member of a protected class; she was qualified for an open position; she was denied the position; and the position was given to someone with similar or inferior qualifications.

2. The defendants more or less acknowledged that the complaint alleges these facts as to the department coordinator role because they admitted that the plaintiff had a disability and recognized in their objections that the complaint had made allegations going to the other requirements. Finally, it is not necessary to plead facts sufficient to establish a prima facie case at the pleading stage.

Court’s Reasoning (Breach of Confidentiality)

1. It is not necessary when it comes to disclosure of certain employee medical information that the disclosure be done in furtherance of some act of disability discrimination because the ADA sets forth independent prohibitions on disability-based job discrimination, including failure to accommodate and separately, the disclosure of certain employee medical information.

2. While the majority of cases have held that in order to recover for a violation of the ADA’s confidentiality provisions an employee must show actual damages (emotional, pecuniary, or otherwise), the court did not need to decide whether that requirement applied because even if the requirement did apply, the plaintiff had at this stage of the litigation alleged sufficient facts. That is, her complaint alleged that she suffered emotional distress, humiliation, and anguish and linked that to the alleged disclosure of her medical information to her colleague.

Court’s Reasoning (Retaliation)

1. To make out a case for retaliation, the plaintiff has to show: she engaged in protected conduct; she suffered an adverse employment action; and a causal nexus exists between the protected conduct and the adverse action.

2. Due to the timing of the adverse actions and the EEOC charges, the retaliation claim was certainly plausible.

3. The Supreme Court has held that to prevail on a retaliation claim, the plaintiff only has to show that a reasonable employee would have found the challenged action materially adverse. That is, might it well have dissuaded a reasonable worker from making or supporting a charge of discrimination. Accordingly, since this is the proper standard for retaliation claims, the allegations in the complaint were such that it is certainly plausible a reasonable worker would have found the employer’s actions materially adverse in the sense they might well have dissuaded her from making or supporting a charge of discrimination.

I Bet You Were Wondering Where the FMLA Claim Was

The FMLA has its own rules with respect to a person who goes out on leave to attend to a serious health condition. If that person qualifies for FMLA leave, FMLA requires that upon return from that leave the person be restored to that job or an equivalent job. The facts here are such that such a claim would seem to be supported. The plaintiff did move to amend her complaint to add the FMLA claim, and the court granted it saying that the amendments were not the result of undue delay (she filed a motion to supplement her complaint less than two weeks later after being relieved of her responsibilities of gallery coordinator), nor would such amendment be futile because the supporting facts if taken as true, are plausible on their face.

Miscellaneous (Individual Liability)

The court also threw out the individual liability claims as none of the applicable statutes allowed for individual liability.


1. The ADA is a complex law and it constantly bounces into other laws as readers know very well. Knowledgeable legal counsel is always helpful when it comes to traversing the ADA and related laws. One wonders why knowledgeable legal counsel was not consulted, at least it appears that way. The type of problems that arose here would have been the kinds of problems that a knowledgeable employment lawyer would have been able to deal with long before reaching the litigation stage.

2. There are situations where you could comply with the ADA but violate the FMLA and vice a versa. Again, knowledgeable counsel is helpful. Also, this case argues for staff training by knowledgeable trainers.

3. This case is excellent for understanding how to make out various claims including: failure to accommodate; failure to promote; retaliation; and to a lesser extent, breach of confidentiality.

4. An adverse action for purposes of employment discrimination has a different meaning than an adverse action for purposes of retaliation claims; the standard for retaliation claims is far lower.

5. The case law is overwhelming that individual liability does not happen with respect to ADA claims.

6. Pro se claims must be taken seriously (I am not saying they weren’t in this case, but am making a general point).

7. An act of disability discrimination is not required with respect to a breach of confidentiality claim per the requirements of the ADA.