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Firefighter subjected to unreasonable return-to-work requirements following leave for PTSD advances ‘regarded as’ claim

By Marjorie Johnson, J.D.

A Chicago firefighter who claimed that he suffered from post-traumatic stress syndrome (PTSD) after a racially charged altercation with a fellow fighter plausibly alleged claims of disability bias and retaliation under the ADA and state law. He alleged he was subjected to unreasonable hurdles to return to work following his medical leave, and eventually was terminated despite his multiple attempts at meeting the unfair demands placed upon him. Denying the city’s partial motion to dismiss, a federal court in Illinois also found there was no authority supporting the city’s assertion that alleging multiple forms of illegal discrimination constituted an improper mixed-motive theory (Alamo v. City of Chicago, November 7, 2018, Coleman, S.).

Complaints ignored. The Chicago Fire Department (CFD) firefighter, who was Puerto Rican, was transferred to a different station in 2009. Over the next two years, he purportedly experienced verbal and physical harassment based on his race and national origin. He repeatedly complained to his lieutenant and filed a written complaint, but no action was taken.

PTSD after altercation with harasser. In September 2011, he was involved in a physical altercation with a fellow firefighter that was seemingly racially motivated and witnessed by his lieutenant. After being hospitalized the next day, he was diagnosed with a work-related chest contusion and stress, as well as possible PTSD. His personal doctor also diagnosed him with work-related anxiety and ordered medical leave, but the CFD medical section advised him that his injury was not considered work-related because he failed to report the incident while on duty.

Multiple hurdles to returning. On March 13, 2012, the firefighter was advised that his leave was expiring and that he needed a medical release returning him to work without restrictions. After he got one, he was told he also needed an authorization for a functional capacity test. He provided that too, and then was told to submit his doctors’ progress notes. Lastly, he was ordered to submit medical records dating back to 2009 and to undergo further psychological and physical testing.

EEOC charge. On April 4, he filed an EEOC charge, and then underwent the first part of a two-part psychological test necessary to be cleared for duty. He couldn’t schedule the second part of the test, though. In July, he received a letter explaining that he had exhausted his time off and could return to work, resign, or take a leave of absence. Though he requested to return to work, CFD stopped paying him his salary and benefits.

Reinstated, transferred. The firefighter was reinstated in February 2013 and reassigned to a station located further from his home, which the lieutenant said was because he had “misbehaved.” He was later transferred to another station, where the chief warned him that he had heard about his reputation. He continued to be subjected to harassment and unfair discipline. He was also denied opportunities for training, transfer, or advancement.

On June 20, 2016, he met with his battalion chief and lieutenant regarding an issue with a coworker. At the meeting, the chief advised him to go on medical leave and ordered an ambulance to transport him to the hospital. While he was being transported, the chief and lieutenant informed his coworkers that he suffered from PTSD and combat-related trauma.

More hurdles. Though he was authorized for medical leave until July 13, the CFD medical director told him on July 14 that “command personnel have issues with you and I am not ready to release you,” and asked him to submit a release from his medical provider. He did so, but he was then required to obtain a second opinion and undergo further testing. After he was ordered to also sign a release for his medical records from the Veterans Administration, he filed a union grievance and internal affairs complaint.

In December 2016, he saw a neuropsychologist for additional testing at CFD’s request. The doctor recommended that he be declared unfit for duty, and he was denied his request for a second medical opinion. The medical director subsequently gave him documents to request a reasonable accommodation, but the neuropsychologist refused to sign them. Though a VA neurologist later rejected the neuropsychologist’s testing results, and subsequently authorized his return to full duty, the firefighter was advised he must resign or go on unpaid leave. He refused and was fired.

Plausibly “regarded as” disabled. The court rejected the city’s assertion that the firefighter’s complaint lacked the requisite specificity to plausibly allege that he was regarded as disabled. He alleged that he suffered from PTSD, that his PTSD did not affect his ability to perform his duties, and that the city refused to return him to work as a result of his PTSD. Though he failed to link specific decisions to his PTSD or establish what substantial limitation he was believed to have because of his PTSD, the level of specificity sought by the city was unnecessary. Moreover, much of the information that the city sought at this early juncture—such as why its agents would not restore the firefighter from medical leave—was exclusively in its own control.

Mixed-motive theory. The court also rejected the city’s assertion that the firefighter’s disability bias claims must be dismissed because he advanced a mixed-motive theory that he was discriminated against both for his disability and for his race and national origin. No authority established that alleging multiple forms of illegal discrimination constitutes an improper mixed-motive theory. Moreover, the city’s argument was contrary to the alternative pleading provisions of the federal rules.

Timing not too remote. The court also rejected the city’s assertion that the filing of his case was too remote in time to support his retaliation claim. It offered no authority suggesting that it was appropriate to dismiss a retaliation claim based solely on a substantial lapse of time between an employee’s protected activities and subsequent retaliatory conduct. Moreover, the protected activity was also “nowhere near as remote” as the city claimed.