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Inability to deal with boss not a disability; getting a new boss not reasonable

By Lisa Milam-Perez, J.D.

Adding to a long line of disability cases holding that being assigned to a new boss is not a reasonable accommodation for a mental disability, a federal district court in California granted an employer’s motion to dismiss an employee’s FEHA claims alleging disability discrimination, failure to accommodate, and failure to engage in the interactive process (Alsup v. U.S. Bancorp, January 13, 2015, Mueller, K.).

“Belittled and ridiculed.” The employee, a U.S. Bancorp regional manager was performing well on all accounts—rising to hold a vice president position—until she was assigned a new boss in September 2012, who almost immediately began to treat her in “a negative and devaluing manner” and made unwelcome comments of a sexual nature, she alleged. She had a history of mental health problems which immediately resurfaced due to being “belittled and ridiculed” by her supervisor. Namely, she experienced severe depression, acute anxiety, and she was diagnosed with bipolar disorder and PTSD. She began to see a psychologist and was placed on medication, but nevertheless started to have panic attacks, trouble sleeping, and other manifestations of her condition.

After being written up by her boss, her mental impairment went “out of control,” prompting her to seek an emergency appointment with her psychiatrist, who placed her on a medical leave of absence and told the employer that she should be accommodated with “a switch in supervisors.” While on leave, the employee emailed an HR official and indicated she could no longer work under her supervisor, that she wanted to transfer out—and she had identified two alternative positions at the company to that end. The HR official immediately reached out, trying to contact her by email and by phone, but the employee said she didn’t want to discuss the matter while she was out on leave, and she’d contact HR once she “felt up to it.” Rejecting the HR official’s request that they discuss the matter in person, the employee noted that she’d suffered several panic attacks in recent weeks and said that communicating with HR wasn’t “conducive” to her health. As such, she preferred to communicate solely by email. Undaunted, the HR official responded that a face-to-face conversation would be necessary, and that she stood “ready to assist” once the employee felt capable of having one.

Transfer or bust. Eventually, the HR official was able to speak with the employee by phone. In their conversation, the employee was told that if she couldn’t work for her supervisor, she’d need to continue her disability leave; moreover, if that leave was not extended, she would be terminated for vacating the job. The HR official also asked the employee to request specific restrictions that could allow her to continue working under her boss; she would not, however, discuss a transfer at all, according to the employee. The HR official refused to offer an example of what such a restriction might look like, and the employee could not visualize one, aside from a transfer. The boss’s “voice, mannerisms, physical stature, age, looks, domineering personality, and behavior exasperate[ed] and trigger[ed” her disability, she insisted.

The employee’s physician weighed in again, too, insisting to the HR official that his patient could not be “in the same proximity nor have any communication whatsoever” with her current supervisor. Her current work environment was “unhealthy” and “not conducive to her recovery,” and until she was placed under a new boss, she would continue to have problems, both physical and emotional. The employee’s transfer request, nonetheless, was denied. The (now-former) employee filed disability discrimination-related claims under California law.

Disability discrimination. The employer argued that because the employee’s mental illness arose from her inability to get along with the boss—and the only effects of her condition on the job itself was to render her unable to work with him—she did not have a disability within the meaning of the FEHA, citing two prior FEHA cases on point.

For her part, the employee endeavored to distinguish from these and many cases holding an employee is not disabled if she cannot get along with her supervisor because, in those rulings, the plaintiffs relied on “working” as a major life activity—and they were decided under the ADA, not the FEHA. However, courts have looked to ADA decisions and regulations that have interpreted the ADA to guide their application of the FEHA if the FEHA provision at stake is similar to the one in the ADA, the court noted. And the California Supreme Court has ruled that “the FEHA requires employees to prove that they are qualified individuals under the statute just as the federal ADA requires.”

At any rate, the employee still had to prove she was otherwise qualified to perform the essential functions of her job (with or without reasonable accommodations) in order to make out a prima facie claim. And given her stated inability to work with her supervisor, she could not (and had not) alleged she was so qualified, the court found, rejecting her contention that she was not required to make this showing. Given this failing, along with the fact that her asserted disability merely precluded her from working for a particular supervisor, the employee’s disability discrimination claim lacked merit.

Failure to accommodate. Nor could the employee state a failure to accommodate claim. She sought either a job transfer or a new supervisor (functionally equivalent requests, as the court saw it) but, looking to the “considerable persuasive authority on this question, the court found such a requested accommodation was unreasonable as a matter of law.

Although she cited no relevant California case, outside the state, “the overwhelming majority of courts have held a plaintiff may not couch a request for transfer as an accommodation for her disability, and many specifically hold that a transfer is an unreasonable accommodation as a matter of law.” And precedents cited by the employee, ostensibly to the contrary, were unavailing.

Moreover, even without the benefit of these cases, the court noted that the employee’s work environment could not have been modified in such a manner as to enable her to perform the essential job functions. While she now contended the employer should have offered her other accommodations (such as telecommuting, an extended leave of absence to seek treatment, or changes to the manner in which she was supervised), these were too little, too late, as she did not raise these options during her discussions with HR (nor in her court complaint). The employee “has not alleged the reasonable accommodations she now suggests were unavailable to her at the time of the interactive process,” the court wrote. The employer “fulfilled its duty to engage in the interactive process. Plaintiff is not now permitted to raise these new potential accommodations for the first time.”

Interactive process claim. Nor could the employee evade dismissal of her claim alleging the employer failed to engage in the interactive process. After resolving a spat over the “incorporation by reference” doctrine and admitting four emails and another document (all alluded to in the employee’s complaint and submitted by the employer), the court observed that the employer made repeated efforts to engage the employee in the interactive process, and asked to have a live conversation with her to that end, while the employee wanted to communicate solely by email (on account of her precarious mental state). A Seventh Circuit decision advises that, “[i]n a case involving an employee with mental illness, the communication process becomes more difficult. It is crucial that the employer be aware of the difficulties, and help the other party determine what specific accommodations are necessary. Whether the court found this persuasive was unclear; it was enough, though, that the employer put forth the extra effort recommended. A review of the documents confirmed that the employer sought to explore potential other accommodations, including three possible courses of action.

The court also rejected the employee’s contention that the employer should have attempted to engage in the interactive process with someone other than her. Cases on point, however, do not require the employer to do so; rather, they “allow the practice in certain limited circumstances.” And the employee here did not identify a third-party that would fit the bill, and never requested that the employer talk to her attorney.