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Ok for lower court to independently evaluate two distinct ADA hostile environment claims

By Robert Margolis, J.D.

Agreeing with every other circuit to have addressed the question, the Seventh Circuit also held that hostile work environment claims are permitted under the ADA.

The Seventh Circuit affirmed summary judgment dismissing most claims and a jury verdict in favor of the Marion County (Indiana) Sheriff’s Office on other ADA claims brought by a former deputy who alleged she suffered disability-based harassment by coworkers, refusal to make reasonable accommodations, and discrimination in promotion decisions. In doing so, the court held that partial summary judgment is available in employment discrimination cases, joined other circuits in holding that employees may assert hostile work environment claims in the context of disability discrimination, and agreed with the district court’s findings on several other issues (Ford v. Marion County Sheriff’s Office, November 15, 2019, Hamilton, D.).

The employee worked as a deputy until her hand was injured in a car accident while on duty. She was assigned light duty for about a year following the accident, after which the employer told her she must either transfer to a permanent position, which would be a demotion with a pay cut, or be terminated. She accepted a civilian visitation clerk position, working in that capacity for several years, during which time she alleged that coworkers harassed her, the employer refused to accommodate her scheduling needs, and she was denied several promotions for discriminatory reasons. She brought claims under the ADA. The district court dismissed several of her claims on summary judgment, and the remaining two claims were tried to a jury, which found for the employer on both.

Partial summary judgment. On appeal, the employee’s main argument challenging the district court’s summary judgment ruling was that the court improperly divided the issues in her case and granted partial summary judgment on what was an indivisible claim for a hostile work environment. She argued that in National R.R. Passenger Corp. v. Morgan, the Supreme Court held that each unlawful employment practice should be evaluated as a distinct but indivisible claim.

The appeals court rejected the employee’s argument, however, holding that the district court correctly applied the Morgan principle by (1) recognizing that hostile work environment claims offer a distinct legal theory denoting an independent unlawful employment practice that may be addressed separately from other ADA theories, and (2) that because within that claim there were two separate acts bearing no relation to each other, those could be ruled on separately without violating Morgan.

Single employment practice. First, the appeals court made clear that while partial summary judgment is generally permitted by the Rules of Civil Procedure, the employment discrimination context limits the use of partial summary judgments. Title VII’s enforcement provisions authorize suits based on an “unlawful employment practice,” and in Morgan the Supreme Court held that all events belonging to a “single unlawful employment practice” must be considered as a single claim (even where some fall outside the relevant limitations period). This has led courts to hold that district courts “may not splinter a single employment practice,” according to the appeals court. Thus, partial summary judgments as to incidents forming a single unlawful employment practice are not permitted, but partial summary judgment remains viable where different employment practices are at issue.

Here, the Seventh Circuit first made clear that district courts may properly separate claims based on “specific adverse employment actions, retaliation, denial of reasonable accommodation, and hostile work environment,” and that the district court properly did so here. Since those types of actions lead to distinct legal theories, they may be addressed separately.

Two separate claims. In this case, the district court went further, dividing the hostile work environment claim into two separate unlawful employment practices—each perpetrated by different coworkers and separated by roughly 18 months in time—and granting summary judgment as to one but not the other. The court noted that Morgan taught that while the “entire hostile work environment” will constitute a single unlawful practice, acts bearing “no relation” to one another do belong to separate practices. It also noted that corrective action by an employer can sever a hostile work environment claim. Thus, Morgan leaves open the possibility that separate hostile work environment employment actions can exist if not sufficiently related to each other.

The appeals court then cited the facts in this case that (1) a gap of 18 months separated the actions of two coworkers from the later actions of a third, (2) a change in supervisors occurred in between the two periods of harassment, and (3) in between the two periods, the employer permanently removed the two initial harassers. Each of these facts supported treating the harassment periods as two separate claims of hostile work environment.

Right result. In discussing the timing factor, the court noted that the employee indicated her harassment was continuous for the entire time but there was a gap from the employer’s perspective because she waited 18 months after the initial two harassers were removed to complain about the new harassment. Thus, from the employer’s perspective, there was a gap, and that was the proper perspective to consider. The court also noted that the fact the coworkers were different did not mean that the episodes should be considered separate—only the change in supervisors supports separate consideration. While the district court improperly divided the claim based on the different identities of the harassing coworkers, because the court reached “the right result,” the appeals court affirmed.

ADA hostile work environment. As part of its partial summary judgment analysis, the appeals court “as a threshold matter,” held that hostile work environment is a cognizable claim under the ADA, joining several other Circuits in reaching that conclusion—indeed every other circuit that has decided the question, the court noted. Prior Seventh Circuit decisions had “assumed” that to be the Circuit’s law, but not had expressly held that.

Reasonable accommodation. The court also affirmed the district court’s finding that the employee did not establish the failure to make reasonable accommodation. She argued that the visitation clerk position was not a reasonable accommodation but failed to establish that better vacancies she was qualified to perform were available. The fact that this position was a demotion was not dispositive.

Notice. The court also held that the district court properly found the employee failed to show that three incidents put the employer on notice of a hostile work environment related to her disability. Two involved coworker comments (1) that the employee should have to prove her disability to avoid certain shifts, and (2) questioning whether she really was in as much pain as she claimed. These were “offhand comments” not sufficiently obvious to give the employer constructive notice of the claims, the court held. Further, when she reported to a manager that a coworker insinuated she was faking her disability, the employer transferred the coworker who made that comment. This “prompt action” defeated any claim that the employer negligently addressed disability harassment.