An employer did not discriminate against an employee by firing her for misconduct she attributed to post-traumatic stress disorder, the 1st U.S. Circuit Court of Appeals has ruled.
Plaintiff Kirstie Trahan allegedly referred to certain co-workers as “bitches” on more than one occasion, threw her headset, slammed her phone down before walking off, and engaged in other behavior that violated her employer’s rules of conduct.
When Trahan learned her employer, defendant Wayfair Maine, planned to terminate her, she disclosed for the first time that she was a veteran with PTSD. She further claimed that mistreatment by co-workers triggered her condition and caused her outbursts.
Trahan asked either to be moved or to telecommute, but the employer denied her request and terminated her the next day.
The plaintiff argued that Wayfair violated the Americans with Disabilities Act by failing to accommodate her condition.
But the 1st Circuit disagreed, affirming a U.S. District Court judge’s summary judgment for Wayfair.
“Trahan made both of the proposals that she seeks to classify as accommodation requests after committing the fireable misconduct that prompted her discharge,” Senior Judge Bruce M. Selya wrote for the court. “Where, as here, an accommodation request follows fireable misconduct, it ordinarily should not be viewed as an accommodation proposal at all.”
The 1st Circuit also rejected Trahan’s claim that the employer punished her more severely than non-disabled employees, finding that comparator evidence she provided did not resemble her own situation.
The 28-page decision is Trahan v. Wayfair Maine, LLC.
Plaintiff’s counsel Brett D. Baber of Bangor, Maine, said he was disappointed with the decision but understood the court’s perspective on the law pertaining to persons with disabilities.
Wayfair’s attorney, Katharine I. Rand of Portland, Maine, could not be reached for comment prior to deadline.
But Massachusetts employment attorney Tracey E. Spruce said the decision reinforces that when bad behavior is the product of an employee’s disability, the employer may still require compliance with its professional conduct policies, provided it does so neutrally and consistently.
“Sometimes I see employers retreat from a disciplinary or termination decision because they think they can’t move forward after an employee discloses a disability,” said Spruce, who practices in Andover. “This decision confirms employers need not revisit decisions made before such disclosure, as long as they would take the same action with respect to a non-disabled employee.”
“This decision confirms employers need not revisit decisions made before [a disability] disclosure, as long as they would take the same action with respect to a non-disabled employee.”
— Tracey E. Spruce, employment lawyer
Matthew H. Parker of Providence said the ruling is consistent with the federal Equal Employment Opportunity Commission’s position on reasonable accommodation in situations such as the one at Wayfair.
“If someone has a disability, it may warrant a break on the conduct rules, but only prospectively, never retroactively,” he said. “Otherwise, employers would be set up to fail, getting caught off-guard after the fact with employees trying to blame their misconduct on disabilities the employer never knew about.”
Providence attorney Alicia J. Samolis said she found noteworthy the court’s finding that even if Trahan had requested her accommodation earlier, working at home was an undue burden because the employer had no work-at-home policy at the time and lacked the technical capability.
“This defense may not exist for many employers going forward, now that they’ve implemented work-at-home policies to deal with coronavirus,” Samolis said. “Even when this is over, it will be hard to tell the courts such a request can’t be accommodated, since the employer found a way to make it work during the coronavirus period.”
Evan M. Fray-Witzer of Boston said the case represented a “nightmare scenario” for employers that was averted by the defendant’s documentation.
However, he continued, employers should not rely too heavily on language in the opinion that Wayfair did not have to engage in the interactive process because doing so would be futile.
“That holding is going to be rather narrowly construed to the facts of this case,” he said.
Meanwhile, David E. Belfort of Cambridge, who represents employees, thought the court was too quick to discount a comment the plaintiff made to a workplace mentor prior to her alleged offending conduct that mistreatment by colleagues “triggered a PTSD flashback,” concluding instead that the comment was made and taken in a “casual or colloquial,” not clinical, manner.
“Certainly the plaintiff’s comment might have put Wayfair on notice to, at the very least, inquire further about what was going on with her, or to otherwise engage in the statutorily mandated interactive process,” he said. “I wonder whether this evidence was read in favor of the plaintiff as required.”
Trahan was diagnosed with PTSD following a sexual assault while serving in the military and received a medical discharge in 2010.
In August 2017, Wayfair hired her to work in its call center in Bangor, a job that required her to work collaboratively on a team while complying with “rules of conduct” that mandated employees treat each other professionally.
Trahan, who did not disclose her PTSD to Wayfair when she was hired, said she felt excluded during the training period by a “tight-knit” group of fellow trainees.
The trainees were subsequently moved to the sales floor for “nesting” before being placed on permanent teams. During that time, Trahan perceived the group acting “cliquey” and making her feel similar to how she felt in the Army.
At one point, Trahan apparently suffered a PTSD episode following an uncomfortable encounter with another employee. She told her “nesting coach” that the episode triggered a PTSD flashback, but apparently said nothing to suggest she was using the term clinically and not colloquially.
On Sept. 20, 2017, Trahan directed a comment toward one “clique” member when another joined the exchange. Trahan apparently called the person “ignorant,” threw her headset, and slammed down the phone before allegedly suffering a PTSD flashback.
Trahan subsequently told a manager investigating the incident that she was “sick of the clique” that was “always talking about her” and that the group was composed of a “bunch of bitches.” During the meeting, she also crossed her arms, faced the wall, and rolled her eyes, which management interpreted as unprofessional and rude. Apparently she did not say a disability was manifesting itself.
During HR’s follow-up investigation, Trahan again apparently referred to her co-workers as “bitches.” She later texted an uninvolved co-worker that she anticipated “getting shafted” because of the incident.
Ultimately, the defendant concluded Trahan should be terminated for violating the conduct code. That night, before learning of the decision, Trahan left the HR manager a voicemail explaining that she was a veteran with PTSD and that the treatment by her co-workers triggered her condition.
In a follow-up conversation the next day, Trahan asked to be moved away from the co-workers in question or to work from home.
Instead of engaging in the interactive process, Wayfair proceeded with the termination.
Trahan filed suit in U.S. District Court, where Judge Lance E. Walker granted Wayfair’s motion for summary judgment.
Matter of timing?
The 1st Circuit found that Wayfair did not discriminate against Trahan.
First, Selya said, Trahan admitted engaging in behavior that was plainly unprofessional.
“It cannot be gainsaid that acting unprofessionally and in a disrespectful manner transgressed the Conduct Rules,” the judge said.
Additionally, Selya said, Wayfair enforced the rules consistently despite Trahan’s assertions to the contrary.
“It is uncontroverted that Wayfair fired other employees when it learned that they had indulged in emotional outbursts in the workplace or given vent to fits of anger there,” Selya wrote. “Trahan tries to make an end run around these comparators by pointing to other types of behavior [but] Trahan’s misconduct was far more blameworthy than that of any co-worker she identified. Trahan called her co-workers ‘bitches’ in the course of a turbulent workplace incident that involved throwing and slamming things [and] doubled down on the epithet during a later meeting with management.”
Regarding Wayfair’s alleged failure to accommodate Trahan’s disability, Selya said that “[g]iven the timing of the requests, implementing them would have required forgiveness of her fireable misconduct and a fresh start at Wayfair. Nothing in the ADA demands that an employer accord an employee — even an employee with a disability — such a second chance.”