Jottings By An Employer's Lawyer

Sunday, January 02, 2005

Hostile Environment Claim Under ADA - Possible

But just showing that some of your fellow employees teased you, even when they did so using mental health terms was not enough to allow a former deputy to defeat the County's motion for summary judgment. Lanman v. Johnson County (10th Cir. 12/30/04).

Although having been a deputy since 1987, Lanman testified that beginning in March 2001 several of her co-workers begin treating her as if she were mentally ill. Among the things that she complained about:
[They would]call her "nuts" or "crazy." ... When someone "hyped up on drugs" or "hostile" would be placed in a special holding cell (1A4), Deputy Judd Brungardt would tell her "Lanman, there is someone like you. Go get your relative out of 1A4. They act just like you." She also testified Deputy Bernie Beletsky made comments like the following approximately once a week: "Oh Lanman, you are going off the deep end again," or "Let's give her some chocolate and let's see her go off the deep end," and "Are you off your medication?," or "Why don't you try a different medication."
After some other incidents and a mistake in classifying prisoners, she was suspended pending a psychological fitness for duty exam, which she passed. She returned and was assigned to another position. On her first day she was suspended for three days after a confrontation over whether she needed to work with a training officer in the new position. When she heard it was announced at roll call that she would be returning and if anyone had any problems with it they should talk to the supervisor in private, she chose to resign.

Her suit claimed all of this created a hostile environment in violation of the ADA. While the Court agreed that such a cause of action existed, it also held that Lanman must first establish that she was disabled before she could bring such a claim. Since she claimed nothing was wrong with her, she was forced to rely on the "perceived as" prong of the disability definition. That required that she show both that the employer believed she had an impairment and that it believed the impairment substantially limited a major life activity. The limited comments of co-workers and even the request for psychological exam were not nearly enough to meet that burden. No disability, no ADA claim, even for a hostile environment.

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