Court Allows Accommodation Claim for Better 'Supervisory Fit' to Proceed

​The 10th U.S. Circuit Court of Appeals reversed summary judgment against the failure-to-accommodate claim of a court clerk with post-traumatic stress disorder (PTSD) who requested not to work on domestic violence cases and asked for a better "supervisory fit."

The plaintiff began working for the city of Salt Lake City in 2002 and held different positions in its courts for nine years. Starting in 2011, she began working as an in-court clerk.

The plaintiff had PTSD stemming from a nearly decadelong abusive marriage. Her presence in the courtroom during domestic violence cases frequently triggered her anxiety, causing severe migraines that could last for several days at a time and resulting in a significant downturn in her productivity. As her work performance suffered, she had several meetings with supervisors, received written warnings and was ultimately suspended for two days in July 2014.

Throughout this time, the plaintiff took intermittent leave under the Family and Medical Leave Act (FMLA) for health conditions, including the exacerbation of her PTSD. In May 2014, she contacted the city's equal opportunity program manager about a potential accommodation under the Americans with Disabilities Act (ADA). The program manager sent the plaintiff paperwork to fill out, and the plaintiff's clinical social worker completed and submitted it.

The clinical social worker noted that the plaintiff's presence in court during domestic violence cases triggered her PTSD. The program manager and two court managers met with the plaintiff to determine whether her request could be accommodated. The program manager asked if she could not work on any domestic violence cases or if she could perform clerical work on them out of court. The plaintiff asked to discuss her response in person, but on the date for which this meeting was scheduled, she had to leave early because of a migraine and never responded to the program manager.

In August 2014, the plaintiff's clinical social worker requested six months of FMLA leave for her. The clinical social worker noted that the probable duration of the plaintiff's elevated PTSD symptoms was three to six months and later stated that she could likely return to work after treatment.

The city approved FMLA leave for the plaintiff. On Sept. 15, 2014, the program manager again asked for clarification on the scope of the plaintiff's ADA accommodation request. A week later, the plaintiff updated her accommodation request via e-mail, stating that her counselor and doctor wanted to request that she return to a different position at the city after her leave.

The program manager explained that reassignment was available only if the current position could not reasonably accommodate her, and said that the plaintiff might need to update her paperwork to show this. The next month, the plaintiff's clinical social worker submitted new information stating that her heightened stress levels were exacerbated by interactions with her supervisors. He noted that the plaintiff had made a tape recording of these interactions, which were counterproductive for someone with PTSD. He recommended that she be transferred to work in a different department with different supervisors to find a better supervisory fit and be productive.

The city sought a copy of the recordings, but the plaintiff was unable to provide it. Before the plaintiff's FMLA leave expired on Nov. 13, 2014, the city sent her a notice asking for a return-to-work certification. The plaintiff failed to provide one, and the city fired her that day.

The plaintiff sued the city under the ADA for failure to provide reasonable accommodations, disability discrimination and retaliation. The city moved for summary judgment on all three claims, which was granted.

On appeal, the 10th Circuit found that the district court should not have granted summary judgment on the failure-to-accommodate claim. The appeals court found that the plaintiff had presented some evidence that she could not be accommodated in her current position.

While the district court found that the plaintiff's failure to provide the tape of her interactions with her supervisors doomed her claim, the 10th Circuit found that the request for a new supervisor was separate from and in addition to her request for a different position, and both should have been considered.

The appeals court further found that the plaintiff could have been entitled to additional leave under the ADA after her FMLA leave expired. The 10th Circuit sent the case back to the district court on the failure-to-accommodate claim for further consideration.

Herrmann v. Salt Lake City Corp., 10th Cir., No. 20-4063 (Dec. 20, 2021).

Professional Pointer: While courts often find requests for reassignment or for a new supervisor to be unreasonable, the requests may be justified in some circumstances. An employer must also consider whether it can provide additional leave to an employee under the ADA after FMLA leave expires.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.