Before getting started on the blog entry of the day, I will be out of town not this week, but the week after this week. So, I am not sure if I will get a blog entry up for the next week. I would have to do it next Sunday, but I will also be out of town the end of this week as well. So, don’t be surprised if there is no blog entry for next week.

Turning to the blog entry for this week, it is a published decision from the Ninth Circuit decided on April 22, 2024. The case is Mattioda v. Clarence William Nelson II and NASA, here. The case asks the question of whether hostile work environment claims are viable under the Rehabilitation Act and under the ADA. The Ninth Circuit says they are. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that summary judgment should not have been granted on plaintiff’s hostile work environment claim; court’s reasoning that summary judgment was properly granted on the disability discrimination claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Dr. Mattioda began working for NASA in 2000. He suffers from, among other things, a degenerative defect in his hips and Scheurermann’s disease of the spine, which causes uneven vertebrae growth and scoliosis. Since 2007, his orthopedist has written reasonable-accommodation letters stating that Dr. Mattioda must fly in premium class for flights longer than an hour because he needs to avoid prolonged sitting and be able to change positions frequently and stretch due to physical disabilities affecting his hips and spine. By 2011, after multiple surgeries, Dr. Mattioda had informed the NASA Ames Research Center, where he worked, about all his disabilities and orthopedic limitations. Thereafter, from 2011 to 2018, Dr. Mattioda’s experience at NASA was plagued by: (a) derogatory comments from his supervisors; (b) supervisors who inhibited his work opportunities; (c) unwarranted negative job reviews; and (d) resistance to his accommodation requests. In 2011, Dr. Mattioda approached his supervisor, Dr. Timothy Lee, about an upcoming work trip and advised Dr. Lee of his physical disabilities and premium-class travel request. After Dr. Lee learned of the cost for the requested travel upgrade, he “openly discussed” Dr. Mattioda in front of others, “compared [his] disabilities to Dr. Lee’s own hip issues,” and asked why Dr. Mattioda could not “just tough it out or suck it up and travel coach.”

After that, a series of harassing comments and events just continued even further. Those events included openly criticizing the plaintiff to others, inhibiting the plaintiff’s work opportunities, making it clear that his reasonable accommodation requests would only happen if he paid for them himself, mishandling performance reviews, disclosing his disabilities and EEO activity to other employees, and transferring him to a different division in order, “to help calm the waters and to provide [plaintiff] with a safe space.” He was also denied a promotion. With respect to the promotion, the defense defended on the grounds that the person they hired was more qualified than the plaintiff because he had significantly more experience and publications than the plaintiff. Also, the new hire’s publications were the first in a novel field.

The court granted summary judgment as to all claims except for those involving his negative performance reviews. The negative performance reviews claim ultimately settled. Plaintiff appealed the summary judgment grant on the hostile work environment claim and on the disability discrimination claim.

II

Court’s Reasoning That Summary Judgment Should Not Have Been Granted on Plaintiff’s Hostile Work Environment Claim

1. The weight of authority supports concluding that a plaintiff can bring a disability-based harassment claim under the ADA and therefore necessarily under Rehabilitation Act, because every circuit to have addressed the issue has concluded as much.
2. It is well established that a plaintiff can bring a hostile work environment claim under Title VII.
3. As the Seventh Circuit, in a case we discussed here, noted, a hostile work environment claim must also be available under the ADA because Congress wrote the ADA using the language of Title VII.
4. The Fifth Circuit similarly reasoned that because the ADA and Title VII use almost identical language and are also alike in their purposes and remedial structures, the ADA also provides a cause of action for disability-based harassment. In particular, they said that it was clear after review of the ADA’s language, purpose, and remedial framework, that Congress’s intent in enacting the ADA was to eradicate disability-based harassment in the workplace. They further observed that the Supreme Court has construed Title VII, which has nearly identical language to the ADA, to provide a cause of action for harassment when it is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive environment since it affects the terms, conditions, or privileges of employment.
5. The Fifth Circuit and Seventh Circuit reasoning is sound, so hostile work environment claims are viable under the ADA.
6. Since the Rehabilitation Act is materially identical to and the model for the ADA, hostile work environment claims are viable under the Rehabilitation Act.
7. To plead a plausible hostile work environment claim, a plaintiff has to allege that: 1) he was subjected to harassment because of his disability; and 2) that the harassing conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment.
8. When it comes to assessing complaints, Iqbal/Twombly is the standard that gets used. Even using that standard, plaintiff’s hostile work environment claims can go forward. The lower court in analyzing the complaint using the Iqbal/Twombly standard made a series of mistakes. First, it did not construe well pleaded allegations in plaintiff’s favor. Second, if failed to acknowledge plaintiff’s allegation that a series harassing comment began after the employer was informed of his disabilities. Third, the court ignored allegations linking the allegedly harassing conduct to his disability, such as nondisabled researchers being treated better than the plaintiff was.
9. While a close call, plaintiff sufficiently alleged that the conduct was sufficiently severe or pervasive.
10. When it comes to sufficiently severe or pervasive conduct, that conduct must be both subjectively and objectively abusive. Objective hostility is assessed by looking at the totality of the circumstances through the lens of a reasonable person with the same protected characteristic. Here, plaintiff alleges that his employer inhibited work opportunities and repeatedly made harassing derogatory comments over a period of years and listed several specific examples. They also alleged his employer threatened his job, demeaned him by making him sign a letter acknowledging a refusal by his employer to reconsider his poor performance rating, and made insulting comments about his reasonable accommodation requests and job performance. As such, plaintiff had created a question of fact for the jury to decide.

III

Court’s Reasoning That Summary Judgment Was Properly Granted on the Disability Discrimination Claim

1. Both parties agree that the district court correctly used the McDonnell Douglas burden shifting framework in assessing the motion for summary judgment.
2. Even assuming, as the District Court did, that plaintiff established a prima facie case of disability discrimination, plaintiff repeatedly conceded that the nondiscriminatory reason for not selecting him for the position was a valid reason. In particular, the person ultimately selected was more qualified for that position. There is also no evidence that the technical excellence criteria utilized by the selection panel was invented to discriminate against the plaintiff based on his disability.

IV

Thoughts/Takeaways

1. The Ninth Circuit in this published decision joins the overwhelming trend of authority that hostile work environment claims are viable under both the ADA and the Rehabilitation Act.
2. The court notes that whether conduct is sufficiently severe or pervasive must be viewed from the perspective of the person with a protected characteristic. Even so, one can see how “sufficiently severe or pervasive,” is often in the eyes of the beholder. For example, it won’t surprise my readers, that I didn’t see this fact pattern as a close call. However, the court did. We discussed previously in this blog entry, that there may be a whole different approach to hostile work environment claim that might be worth considering.
3. On the plaintiff’s side, always put in enough facts to make sure that everybody knows precisely what is going on because Iqbal/Twombly is definitely something that plaintiffs always have to worry about.
4. Trial courts on summary judgment, are supposed to construe the facts in favor of the nonmoving party. However, what that means can vary considerably from judge to judge.
5. Why did both parties agree that McDonnell Douglas was the proper standard to analyze the summary judgment motion? I don’t know the answer to that because alternatives, such as the convincing mosaic standard which we discussed here, most certainly exist.
6. Hostile work environment and disability discrimination are two different causes of action. So, here the plaintiff gets to go forward on his hostile work environment claim but his disability discrimination claim gets tossed out because NASA successfully defended on the grounds that the person hired was more qualified than the plaintiff.
7. To my mind, insisting that an employee or any person with a disability pay for their own reasonable accommodations is per se evidence of a hostile work environment. Any entity insisting on a person with a disability paying for their own accommodations/modifications is asking for litigation they very well will lose.