The Blame Game: Disability Accommodation Edition

Predicting verdicts in cases involving injured employees

September 23, 2020 Photo

This edition of The Blame Game addresses a topic that is on the rise as baby boomers come closer to retirement, and vast numbers of aging workers begin experiencing age-related disabilities: requests for accommodation. We recently searched for jury verdicts that involved disability accommodation, and we have compiled a few cases so that you can test whether your assessment of disability-accommodation claims is on point with verdict outcomes.

As you review each case, consider the probable outcomes. Will the particular disability affect the outcome? If so, how? Should the case end in a plaintiff or defense verdict? If you expect a plaintiff verdict, how much do you predict the verdict will be? Are punitive damages a risk? Joining the discussion is Flavia Pemberton, vice president, environmental claims, for Ascot Group, who will chip in and share her assessment of the outcome of each case before the actual verdict is revealed. Let’s play The Blame Game!

Case One: Emotional Support in Texas

Our first case was venued in the U.S. District Court, Western District of Texas, in San Antonio, and involved a worker who wanted to bring his emotional support dog to work. The plaintiff, a mechanic technician for a technology company who worked in a maintenance facility, had a severe panic attack at work. He had served three tours of combat duty in Iraq with the U.S. Marines and was diagnosed with post-traumatic stress disorder (PTSD). When he returned to work after the panic attack, he asked to bring his service dog with him because the dog created a general calming effect and helped prevent him from feeling crowded or startled. The company granted the accommodation but placed restrictions, including requiring the employee to use a side door and barring the dog from the office area, locker room, and break room.

The employee brought suit, claiming violations of the Americans with Disabilities Act. The plaintiff’s counsel argued that the accommodation was not unreasonable and would not have compromised safety, contending at least one other maintenance facility in Texas had a mascot dog that was allowed to freely roam the facility, and that the company had full access to medical records to confirm the disability.

The employer argued that the employee did not provide complete information on either his PTSD diagnosis or the need for accommodation, but the company granted the accommodation anyway, albeit with restrictions. The company claimed that allowing a dog in the facility posed a safety risk, and that restrictions placed on the accommodation were reasonable, necessary for business operations and employee safety, and were not punitive.

As far as damages go, the employee claimed the restrictions placed on the accommodation made it more difficult for him to perform essential job functions and caused additional stress. Also, company management denied him the opportunity to work overtime due to the accommodation. The employee sought $5,400 for past lost income, $30,000 for emotional distress, and an unspecified amount for punitive damages. It appears no claim for future lost income was made.

Evaluation and Verdict: “A former Marine with PTSD in Texas may be very sympathetic under these facts,” says Pemberton. “I expect the total verdict was likely close to $100,000.”

Pemberton’s estimate was spot-on. After a four-day trial and 14 hours of deliberation, the five men and three women jurors found for the employee. The jury awarded $5,400 for past lost earnings, and $23,200 for past pain and suffering. Since the jury found that the employer had specifically violated the ADA, and the ADA allows for attorney fees, the employee’s attorney is likely to receive attorney’s fees that total several times the amount of the award.

Case Two: Disabled Employee in New Jersey

Our second case comes from Mercer County Superior Court in New Jersey. The plaintiff, an administrative specialist in her early 30s, had been working for the state agency for several years. She fractured her ankle, which resulted in her developing complex regional pain syndrome. After being out of work for months, the employer created a sedentary job for her, and the employee returned to work in the accommodated position. Before starting the accommodated position, and then again a week after, the employee met with the employer’s ADA coordinator to discuss limitations. A doctor’s note said the employee could not flee from a dangerous situation and that walking could exacerbate her condition.

A few months later, during a fire drill, the employee attempted to use an elevator but was told by her supervisor that she had to use the stairs. The employee struggled down the stairs with her supervisor behind her. In the middle of the second of five staircases, she told the supervisor to go around her. He did so despite seeing that she was in obvious pain. The employee eventually made her way down the five flights of stairs and outside the building.

According to the employee’s counsel, evidence showed that the employer acknowledged the staff had not been properly trained to address a staff member with physical limitations during a fire drill. The employer contended the employee was not as disabled as she claimed, and that she never informed the employer she was unable to walk down stairs. The defense further argued that, since exiting the building is not an essential function of her job, the employer had no duty to accommodate her. Additionally, assistance was offered to the employee during the fire drill, but she declined it.

Within days of the fire drill, the employee presented to her physician with a new onset of pain in her upper left thigh, left hip, rib cage, and left shoulder blade. She had already been treating with pain management for her complex regional pain syndrome. In the following months, she received additional treatment, including physical therapy and pain management, which consisted of nerve-block injections, ketamine infusions, and pain medication. At the time of trial, the employee alleged that the new onset of pain caused her to suffer psychiatric injuries, including depression. A psychiatrist prescribed antidepressants, and she was eventually hospitalized for psychiatric treatment, where she underwent electroshock treatment. The employee’s expert in neurology causally related her exacerbation of complex regional pain syndrome to the fire drill and concluded the exacerbation was permanent in nature.

The employee alleged that she was unable to return to work with the employer, who terminated her employment eventually, and that she was permanently disabled. The plaintiff’s expert in economics testified that the employee sustained $389,281 in back pay and approximately $4.1 million in future lost earnings, lost pension benefits, and health care costs. The employee testified that the fire drill significantly increased her pain, which caused sitting in a chair or in a car, lying down, or standing for long periods to be extremely painful. She claimed she is unable to sit upright for more than two hours without feeling excruciating pain.

The defense questioned whether the employee was as injured as she alleged. The employer played surveillance video in which the employee was seen driving a car, dancing at her wedding, and climbing stairs to attend a church service on Easter—all in the year in which the case went to trial. The defense expert in neurology, who examined the employee, acknowledged her complex regional pain syndrome and associated limitations, but disputed that the fire drill exacerbated her condition. The defense expert in employability determined that despite her physical limitations, she was able to continue working in her job or a similar sedentary-type position. The defense expert in economics testified that the employee actually sustained $465,000 in back pay, which was more than her economist had calculated. (Likely not a good sign for the defense!) However, the defense contended that given the employee was able to work, she sustained no future lost earnings.

Evaluation and Verdict: “The case has a value of up to $2 million, assuming the plaintiff makes a good witness,” says Pemberton. It appears this plaintiff did make a good witness, as the employee was awarded $1.8 million after an eight-day trial. The court also awarded $606,000 in counsel fees and court costs in favor of the employee, so this award exceeded $2 million once these are factored in.

Case Three: Teaching a Lesson in Florida

Our third case comes from Palm Beach County Circuit Court in Florida. The plaintiff, a 57-year-old teacher, was fired from her job with the defendant school district and sued for violation of a state whistleblower act, retaliation, failure to accommodate, and wrongful termination. The employee, a teacher since 1978, contended that the school district began retaliating against her after she reported alleged unethical hiring practices and health violations at schools. She claimed to have a pulmonary condition, and said she was reassigned to a dusty, termite-infested portable trailer classroom following her whistleblower charges. The employee claimed that the school district was aware she had asthma, and that the room aggravated it; she requested a transfer to a different classroom but the district refused to accommodate her. She was later suspended for 10 days without pay for sending inappropriate emails. The employee claimed she merely sent emails to co-workers and school administrators with words highlighted in caps.

The school district denied all of the allegations. The defense claimed that the school district offered to reassign the employee to another classroom but she refused, and that there were more teachers than available classrooms. Also, the employee only spent four weeks in the classroom that she claimed was dusty and termite-infested. The defense further claimed that the employee was suspended for insubordination, unprofessional conduct, ethical misconduct, and misuse of district technology. The defense claimed that the employee had a history going back as far as 10 years prior of sending bullying and harassing emails to fellow employees as well as administrators, and that she misused district technology, including telephone voice messages, to harass and threaten fellow employees. The defense claimed that the employee was ultimately terminated for sending abusive, vitriolic, and threatening emails, and her termination was based on a legitimate, non-discriminatory, and non-retaliatory reason.

Addressing damages, the employee claimed that her teacher certification was taken away as a result of her termination. She claimed that she suffered aggravation of a pre-existing asthmatic condition while teaching in the dusty classroom, which also caused emotional distress. She sought to recover damages for lost wages and benefits, and mental pain and anguish.

The defense argued that the school district had nothing to do with the revocation of the employee’s teacher certification, citing an outside agency independent of the school district that rendered the decision. The school district also argued that the employee was not entitled to lost wages and benefits because her termination was based on a legitimate reason.

Evaluation and Verdict: “This case could have significant value if the teacher makes a good witness, and this case is hard to estimate without an assessment of the impression the plaintiff makes as a witness,” says Pemberton. “With that said, if the plaintiff makes a good witness, then the verdict could exceed $1 million.”

After a seven-day trial, the jury deliberated for just 90 minutes. The employee was awarded $337,000, which included $265,000 for lost wages and benefits, and $72,000 for pain and suffering. Notably, the jury found that the school district did not terminate the employee because of her disability, but that the employee engaged in activity protected by the law by filing charges of discrimination, making internal complaints of discrimination, and requesting a reasonable accommodation. The jury also found a reasonable accommodation existed that would have allowed the employee to perform the essential functions of the job, and that the school district failed to provide a reasonable accommodation. As such, the employee is likely to be able to recover attorney’s fees, which would render this a verdict approaching or exceeding $1 million.

Overall, in these cases, the attorney’s fees awarded after a verdict often paled in comparison to the net judgment. When combined with the payment of fees to defense counsel, these cases suggest more effort can be made toward early dispute resolution. Yet, defense verdicts are still possible, and in the right cases, when the employee continues to work for the employer, failure to accommodate cases may be harder to prove

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About The Authors
Teresa M. Beck

Teresa M. Beck is co-chair of California litigation, chair of Arizona litigation, at Buchanan Ingersoll & Rooney LLP.  teresa.beck@bipc.com

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