Treatment of Scientist with a Disability Supports Hostile Environment Claim

Takeaway: The allegations in this case illustrate that even highly educated professionals are not immune to behaving badly in the workplace, and that employers must ensure that anti-harassment training—whether required by law or discretionary—permeates all levels of the organization.

A space scientist with physical disabilities stated a viable claim against a federal agency for maintaining a hostile work environment involving his disabilities, according to the 9th U.S. Circuit Court of Appeals.

The scientist had conditions of the hips and spine that, according to his orthopedist, required him to purchase premium-class airline tickets for flights over an hour long. In 2011, the scientist informed his supervisor—also a scientist—of his disabilities and requested premium-class travel for an upcoming trip. After learning how much the upgrade cost, the supervisor allegedly discussed the scientist’s disabilities in front of others, compared the scientists’ disabilities to the supervisor’s own hip issues, and asked why the scientist couldn’t “just tough it out or suck it up and travel coach.”

From that point on, the plaintiff said he experienced poor treatment in his workplace through 2018. For example, the scientist’s supervisor allegedly told him he believed another scientist was “doing all the work,” and that he did not respect the scientist or his work. During a meeting, the supervisor purportedly criticized the scientist’s work so harshly that another attendee later mentioned it to the scientist.

Various colleagues allegedly told the scientist about the supervisor’s frequent disparaging remarks about him: that he did not respect the scientist’s work, that he thought the scientist was lazy, and that he thought the scientist was using his disability to avoid work.

Another supervisor—who was also a scientist—allegedly told the plaintiff that he would have to use his own grant money to pay for a travel upgrade, warned him that he could lose his job if he kept requesting travel accommodations, and required him to go through extra steps to have his requests fulfilled. That supervisor also mishandled the scientist’s performance reviews. She allegedly told him, for example, that his disability-related inability to travel would impact his career, and she allegedly lowered one of his ratings for that reason.

The scientist sued the agency under the Rehabilitation Act of 1973, alleging that he had suffered a hostile work environment after informing his supervisors about his disabilities and requesting upgraded airline tickets as a reasonable accommodation, and that he was discriminated against due to his disability by being passed over for a promotion. The trial court dismissed the scientist’s hostile-work-environment claim for failure to state a claim and granted summary judgment for the agency on the disability discrimination claim.

Consistent with other circuits, the 9th Circuit held that a hostile-work-environment claim may be asserted under the Rehabilitation Act, and that the trial court erred in dismissing that claim. However, it affirmed summary judgment in favor of the agency on the disability-discrimination claim.

The trial court had concluded that the scientist failed to link the harassment he had endured to his disability. In reversing, the 9th Circuit first held that hostile-work-environment claims are cognizable under the Americans with Disabilities Act (ADA), and—because the Rehabilitation Act is materially identical to and the model for the ADA—that hostile-work-environment claims are cognizable under the Rehabilitation Act.

As to whether the scientist pleaded a valid hostile-work-environment claim, the 9th Circuit reasoned that the trial court erred in finding, on the one hand, that the supervisor’s alleged threat to the scientist’s job was explicitly linked to his disabilities, while on the other hand concluding that the same allegation was not linked to the harassment claim. Moreover, the trial court failed to acknowledge the allegation that the supervisor’s spate of alleged harassing comments began after the scientist informed the supervisor of his disabilities. Accordingly, the scientist plausibly alleged a nexus between the described harassment and his disabilities.

To establish a hostile work environment, the alleged offending conduct must be both subjectively and objectively abusive. While some hostile-work-environment cases involve extreme conduct, less extreme conduct may be sufficient if it is repetitive, the 9th Circuit said. In this case, the scientist alleged sufficiently severe or pervasive harassment based on his disability to survive the agency’s motion to dismiss, the court held.

Although the scientist established a threshold case of disability discrimination, he himself repeatedly conceded that the agency’s selection of an undisputedly more qualified candidate for promotion was a legitimate nondiscriminatory reason for not selecting him. Nevertheless, the scientist argued that there was sufficient evidence of pretext to survive summary judgment. The 9th Circuit disagreed, finding no direct or circumstantial evidence of pretext, and affirmed summary judgment in the agency’s favor on that claim.

Mattioda v. Nelson II, 9th Cir., No. 22-15889 (April 22, 2024).

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.