Suggesting Medical Treatment Does Not Mean an Employee is ‘Regarded As’ Disabled

A recent decision by the U.S. District Court for the District of Columbia analyzes and illuminates the specific allegations that employees must assert in order to survive a motion to dismiss for claims of retaliation and disability discrimination under the Rehabilitation Act. See Douglas v. D.C. Hous. Auth., CV 13-0610 (ESH), 2013 WL 5764842 (D.D.C. Oct. 25, 2013). As the district court held, an employer’s request that an employee seek a mental or physical health evaluation is not sufficient to support an inference that the employee was regarded as disabled under the Rehabilitation Act, and, in any event, a lateral transfer to a more dangerous employment site is not, by itself, an adverse employment action.

Background

In 2010, Rayshawn Douglas, an employee at the District of Columbia Housing Authority (DCHA), became involved in heated and ongoing altercations with another DCHA employee, Leslie Bilbrue. The confrontations between the two escalated, and Douglas was eventually arrested and prosecuted for throwing antifreeze in Bilbrue’s face. As Douglas alleged in her subsequent suit against the DCHA, upon returning to work, she met with DCHA Executive Director Adrianne Todman and informed her that the arrest, prosecution, and return to an unfriendly workplace climate made Douglas feel as though she was “going crazy.” Todman allegedly responded that “[n]o one just goes crazy.” Douglas’s suit also alleged that, after her return and throughout 2011, her supervisor observed her in various states of visible distress. After a subsequent altercation with Bilbrue, Douglas was instructed not to visit the office in which Bilbrue worked and to otherwise stay away from her.

A few months later, Sabrina Hayes, DCHA’s Deputy Director of Human Resources called Douglas in for a meeting. Hayes informed Douglas that another DCHA employee, Alicia Robinson, had filed a written complaint against Douglas, alleging that Douglas had rolled her eyes and gritted her teeth at Robinson—and threatened her in front of over a dozen co-workers.

That same day, Douglas called another co-worker, Aaron Prue, to discuss her meeting with Hayes. After the telephone call, Douglas wanted to continue the conversation in person and went to a parking lot where she believed she would find Prue. Douglas allegedly approached the vehicle in which Prue was sitting, but—due to the vehicle’s tinted windows—could not see that it was in fact Bilbrue who was in the driver's seat. Seconds after Douglas approached the vehicle, Bilbrue sped away. Later that day, Bilbrue filed a written complaint with DCHA police alleging that Douglas stalked and harassed her in the parking lot by screaming while approaching the car and then beating on the car’s windows until she sped away. Bilbrue further alleged that Douglas had been stalking her since January 2011.

The next day, Douglas was suspended from work without pay and was removed from the DCHA premises by DCHA police officers. For the next few weeks, Douglas could not enter the DCHA premises without specific authorization, and when she was required to enter, she could only do so with an escort from the DCHA police.

Three weeks later, Paulette Campbell, DCHA’s Director of Human Resources, called Douglas in for a meeting. Campbell told Douglas that “everyone was disappointed by [her] actions” and that “everyone had given up on” her. Douglas asked Campbell which actions she believed Douglas had taken, and Campbell responded that the fact that Douglas did not know which actions she meant “scared her” because it signaled that Douglas would do “it” again. Campbell then asked Douglas whether she “had seen a mental health professional recently, because a medical condition might possibly be triggering  [her] individual action.” After the meeting, Douglas was instructed not to contact any offices where Bilbrue, Robinson, or Prue worked.

A month later, DCHA issued Douglas a notice of detail to Stoddert Terrace, a housing project in Southeast Washington that Douglas considered to be in a dangerous part of town. Prior to that detail, Douglas’s responsibilities included bringing receipts to the payroll department, handling budgets, and completing timesheets. At Stoddert Terrace, Douglas alleged that she primarily answered telephones. In December 2011, Douglas was reassigned from Stoddert Terrace to the DCHA Regional Office. On February 2, 2012, she was demoted several grades, effective December 6, 2011. The demotion did not decrease her salary, but it did leave her ineligible for future step increases.

On April 30, 2013, Douglas filed a complaint alleging that DCHA violated the Rehabilitation Act by discriminating and retaliating against her on the basis of a perceived mental disability—to wit, Campbell’s belief that Douglas was “mentally deranged or otherwise mentally ill.”  Douglas claimed that the retaliation arose when DCHA detailed her to Stoddert Terrace—a “dangerous housing project”—in September 2011. She also alleged that DCHA retaliated against her in violation of the D.C. Whistleblower Protection Act.

The Court’s Decision

The court explained that the two “essential elements” for a Rehabilitation Act discrimination claim brought pursuant to 29 U.S.C. § 794 are that “(i) the plaintiff suffered an adverse employment action (ii) because of the plaintiff’s . . . disability.” Under the Rehabilitation Act, unlike Title VII or the Americans with Disabilities Act (“ADA”), a plaintiff ultimately must prove that disability was the sole or but-for reason for the adverse employment action.

In its motion to dismiss, DCHA argued that Douglas failed to plead facts sufficient to establish either that she was disabled or that her detail to Stoddert Terrace constituted an adverse employment action. An individual is “disabled” under the Rehabilitation Act (and also the ADA) if she can show that she (1) has “a physical or mental impairment that substantially limits one or more major life activities,” (2) has “a record of such an impairment,” or, as Douglas alleged, (3) has “been regarded as having such an impairment.” 

The district court determined that Douglas could not satisfy the “regarded as” test because she had not pleaded facts sufficient to establish that she was “regarded as” disabled by Campbell. The court concluded that Campbell’s verbal request that Douglas be evaluated by a mental health professional did not, by itself, expose DCHA to liability under the Rehabilitation Act. Relying on case law predating the ADA Amendments Act of 2008, in which the circuit courts were in agreement “that an employer’s request or even requirement that an employee seek a mental or physical health evaluation would not alone support an inference that the employee was regarded as disabled,” the court found no reason to depart from that standard. Accordingly, Douglas’s allegation that Campbell asked her whether she “had seen a mental health professional recently, because a medical condition might possibly be triggering” her actions was insufficient, even under liberal pleading standards, to raise the inference that Campbell regarded Douglas as disabled.

Additionally, the court held that Douglas had failed to adequately allege the existence of an adverse employment action. For purposes of a discrimination claim, an employment action is adverse if it causes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” The court explained that Douglas had not alleged that her September 2011 transfer to Stoddert Terrace led to any loss of salary, grade level, or benefits. Accordingly, her transfer would properly be characterized as a “lateral transfer,” which, standing alone, is not sufficient to support the finding of an adverse employment action. Moreover, the court held that the allegation that Stoddert Terrace is a “dangerous housing project” did not serve to render the otherwise valid lateral transfer adverse. As the court held, lateral transfers to more dangerous, less desirable employment locations “without more, do not constitute adverse employment actions.” The same logic doomed Douglas’s retaliation claim.

Conclusion

The Douglas case confirms that at least in the District of Columbia, the courts will examine claims of “regarded as disabled” and retaliation very carefully to determine if they survive a motion to dismiss for failure to state a claim. For more information, please contact the authors or any other member of the Arent Fox Labor and Employment practice group.