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In EEOC suit, supervisor’s comment about employee’s health provided direct evidence of disability bias

By Kathleen Kapusta, J.D.

A comment about an employee’s health, said the court, was a far cry from a stray remark as it was made during the meeting in which the employee was fired, it was made by her supervisor, and it related directly to the termination decision.

Not only could a reasonable jury find an employee who suffered from panic attacks, anxiety, and depression was disabled within the meaning of the ADA, it could also find her employer had some knowledge of the extent of her impairments as they caused her to go to the ER with chest pain and to miss several days of work, a federal court in Arkansas stated. Denying summary judgment against disability bias claims brought on her behalf by the EEOC, the court also found direct evidence of discrimination in a supervisor’s comment during her termination meeting that “due to [her] health, it wasn’t going to work out and [she] should take time for [her]self” (EEOC v. Crain Automotive Holdings LLC, April 11, 2019, Holmes, J.).

Hired in the fall of 2016, no one at Crain Automotive knew the employee suffered from anxiety, depression, and panic attacks until late one Monday in January 2017 when she went to the emergency room because of chest pains. Although she feared she was having a heart attack, after two days of treatment, she learned the pain was the result of a panic attack. She returned to work on Friday but left after emailing her supervisor when she began having another attack.

Not working out. When she returned the next Tuesday, she met with two supervisors and was terminated. According to the employee, one of the supervisors told her “it was not working” out due to her health problems and that she needed to take care of herself. Suing on her behalf, the EEOC alleged that Crain failed to provide a reasonable accommodation for her and discharged her because of her disabilities.

Disabled? Moving for summary judgment, Crain first argued that the employee was not disabled within the meaning of the ADA. It was undisputed she had been diagnosed with anxiety, depression, and panic attacks. The panic attacks, she claimed, make her feel paralyzed and caused chest pain and difficulty with her breathing, thinking, communicating with others, and reasoning. Her anxiety also caused her to have difficulty breathing, communicating, and thinking coherently. And when she suffered from depression, she couldn’t care for herself, communicate with others, or think coherently.

Although Crain argued the employee was able to perform other demanding activities such as handling her parents’ estates and that she did not have constant panic attacks, this did not mean she was not disabled, said the court, noting that in light of the difficulty her impairments purportedly caused her, together with Congress’s intention in passing the ADAAA to broaden the definition of what constitutes a disability, a reasonable jury could find she was disabled.

Knowledge. And a reasonable jury could also find, despite Crain’s argument to the contrary, that it had some knowledge of the extent of her impairments at the time she was fired. The EEOC presented evidence that on Tuesday, the employee told her supervisor she had experienced chest pains the day before; on Wednesday, she told her supervisor she had anxiety, depression, and had suffered a panic attack; and on Friday, she emailed her supervisor before leaving work, saying “I can’t do this” because she was “still hurting too bad,” emailed another supervisor explaining that she had had a heart catheterization and included a doctor’s note in the email, and emailed the same supervisor that she had left early because she “was having another panic attack.”

Direct evidence of discrimination. Further, said the court, the EEOC provided direct evidence of discrimination in the alleged comment by the supervisor that due to the employee’s health, it wasn’t going to work out and she should take time for herself. If a jury found the employee was disabled, and it believed these facts, it could draw the inference that her disability actually motivated her firing. Not only was the comment made during the meeting in which the employee was fired, it was made by her supervisor, and it related directly to the termination decision.

Failure to accommodate. While Crain next argued that the employee never requested an accommodation, and thus this claim could not advance, the employee claimed she emailed a doctor’s note to her supervisor stating that she needed three weeks off. Further, she produced the email in which an attached note was visible, but unclear. The supervisor admitted receiving the email but claimed no doctor’s note was attached.

Assuming at this stage that the supervisor received the doctor’s letter, and given that Crain did not follow up whatsoever on what was contained in that letter before the employee was fired, the court found that the EEOC established a fact dispute on whether she requested an accommodation and thus that claim also survived Crain’s motion.