Thursday, October 24, 2013

An Employer Created Disability, or, The Self Licking Ice Cream Cone

A case out of South Dakota shows how encompassing the Americans with Disabilities Act has become under the new amendments. Specifically, this case is an example of an employer using its progressive discipline policy and actually creating a disability that it is then charged with accommodating.

The plaintiff, a K-12 art teacher, was assigned additional duties teaching a remedial class for which she did not feel qualified. After she complained, the school district began monitoring her teaching performance and identified areas of concern where her supervisor expected performance improvement. Her supervisor routinely monitored her classes and placed her on a formal “plan of assistance” requiring her to improve performance in certain areas  by a specific deadline.

Allegedly as a result of this supervision, plaintiff developed anxiety symptoms, depression, weight loss, and sleep pattern deficits. The plaintiff’s physician sent a letter to the school administration requesting some 13 changes in her work environment, including cutting off the observations of her classes, having an “impartial” representative at any meeting that she had with her supervisor, tentative breaks whenever the plaintiff felt necessary and providing coverage available at no notice so that plaintiff could leave whenever she felt overwhelmed by her work environment. The school district responded with a letter agreeing to provide some of these accommodations rejecting some and requesting clarification. The parties exchanged letters again regarding clarification on the accommodations, but the matter went no further after the district's last letter went unanswered. Ultimately, the school district failed to renew the plaintiff’s contract. She had taken a medical leave of absence several months earlier.

The district court determined that plaintiff had a disability given the physical and psychological reaction she had to the employer's progressive discipline system. The court then determined that the school district, although it had some interaction with plaintiff, did not make  a "good faith" effort to resolve plaintiff’s request for an accommodation. The facts on this are, quite frankly, disturbing for employers. Plaintiff specifically failed to respond to the school district’s last letter, and the school district argued that plaintiff simply shut down the discussion, obviating any finding of liability on the part of the school district. But the court noted that the school district, via plaintiff’s supervisor, advised her at almost the same time it sent the last letter that it was recommending that her contract not be renewed. Given that this recommendation was pending, and plaintiff knew about it, the court surmised that plaintiff and a jury could conclude that this school district was not acting in good faith.

The court leaves a lot out of its discussion  - I suggest that the nonrenewal letter timing was mandated by district procedures and that it could not have provided a basis for a reasonable plaintiff to refuse to participate in the interactive process any further.  There was a full school board hearing that had to take place before plaintiff's contract could be terminated, so the non-renewal letter was more of a preliminary procedural step rather than a final adjudication.  But all this was lost on the court.

So what this case stands for is that an employer can undertake a good faith disciplinary process, and find itself saddled with an ADA claim as a result of its efforts, and then have the plaintiff unilaterally close off the interactive process as the employer moves through its disciplinary process requirements. I would think at some point that the plaintiff has to bear some responsibility for keeping her job. For whatever reason, the South Dakota court skewed what should have been a fairly straightforward determination far too much in the Plaintiff’s direction and favor.

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