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Employee’s failure to complain about mocking of his stutter dooms ADA claims

By Brandi O. Brown, J.D.

Parting ways with a lower court by finding that an employee with an anxiety-related stutter who was mocked at work could convince a jury he was subjected to a hostile work environment, the Fifth Circuit nonetheless affirmed summary judgment against his ADA claims because he failed to present evidence that he complied with the employer’s reporting policy. Also, while it will be unhelpful to the employee in terms of reviving his lawsuit, the appeals court determined that the employee did administratively exhaust his failure-to-accommodate claim by including information about that claim in the questionnaire that accompanied his formal EEOC charge (Patton v. Jacobs Engineering Group, Inc., July 17, 2017, Prado, E.).

Mocked and called names. According to the employee, his stuttering is inextricably linked to anxiety. In 2012 he began to work for staffing agency Talascend, which assigned him to work at Jacobs Engineering performing electrical design work. According to the employee, during the time he worked at Jacobs, he was constantly subjected to harassment by his coworkers because of his stutter. His coworkers would call him names like bush hog and lawnmower and they would mock his stuttering in the hallways, on elevators, and around his desk. Even his supervisor engaged in this behavior and one time mocked him at a department-wide meeting. The employee testified that he complained to his supervisor and his Talascend recruiter about the harassment and that he also left an unanswered message with Talascend’s HR department.

Noise complaints. The employee also had a problem with noise in the workplace. He alleged that the Jacob’s work environment was filled with “loud laughter, banging, [and] horseplay.” He contended that he complained multiple times to his supervisor and asked to be moved somewhere that was quiet “so that [his] nerves would not affect [his] stuttering.” He also discussed the matter with his Talascend recruiter. Despite these difficulties, the employee performed well, although he contended that the harassment and noise problems caused him to endure severe anxiety and to miss work. Eventually he suffered a panic attack that resulted in a car accident. He did not return to work.

Lawsuit. He eventually he filed suit, alleging violations of the ADA along with tort claims against both Talascend and Jacobs. The district court granted summary judgment in favor of the defendants. With regard to the ADA claims, the court found that the employee failed to administratively exhaust his accommodation claims, failed to put forth sufficient evidence that the defendants were aware of his disability, failed to introduce sufficient evidence of a hostile work environment, and failed to take advantage of the defendants’ anti-harassment policy procedures. The employee appealed.

HWE. While the appeals court diverged from the district court on a few key issues, the result was the same for the employee and summary judgment was affirmed. The appeals court concluded that a jury could find that the harassment the employee experienced at the hands of the Jacobs’ employees was sufficiently severe or pervasive, especially considering the incident in which his supervisor mocked him at a department-wide meeting. It was also reasonable to infer the hostile environment contributed to the employee’s anxiety, which led to him missing work.

However, the appeals court agreed with the district court that the employee failed to show that either defendant failed to take appropriate action. Both had employee handbooks that included policies regarding reporting harassment and there was no evidence in the record indicating that the employee complied with those policies. The employee testified that he called Talascend’s HR department, but he did not testify regarding the content of that message. He also did not argue that doing so would have been futile. Therefore, even though he might have been able to show that the environment was hostile, the district court did not err in granting summary judgment on the claim.

Accommodation not clearly connected. On the reasonable accommodation claim, the court agreed with the district court that there was insufficient evidence to prove that either defendant had knowledge of the employee’s disability. While his stutter was obvious and it was clear that he had complained about noise several times, he failed to present evidence that the employers attributed those requests to a medical condition. The only evidence to support such knowledge on the part of Talascend was the employee’s testimony that he told the recruiter that his stuttering and anxiety issues “all go[] together.” He also told her he had previous noise issues at another job. The court concluded that those statements were “too vague” to make the required connection. With regards to Jacobs’ knowledge, the employee did not tell the employer that his disability caused the noise sensitivity and the connection was not obvious. Therefore, the district did not err in granting summary judgment on the claim.

Exhausted remedies. Although it would not help the employee with regards to reviving the claim, the appeals court determined that he had exhausted his administrative remedies on it. While it was true that the employee did not include in the formal charge a suggestion that either defendant failed to accommodate his disability, he did include that information in the intake questionnaire, which the court construed as being part of the charge. Perhaps more importantly, the EEOC investigation had “clearly encompassed” the claim. Thus, not only could the claim have been reasonably expected to grow out of the charge, it had in fact grown out of it.