FedEx employee suffering from anxiety, meds withdrawal did not show bias based on actual or perceived disabilities

By Kathleen Kapusta, J.D. — Finding no evidence that anyone at FedEx knew about an employee’s severe anxiety and adjustment disorder until he objected to placement in the company’s drug testing program, and that most of the alleged harassment occurred before this disclosure, the Tenth Circuit affirmed summary judgment on his ADA disability discrimination claim.

Nor could he show FedEx erroneously regarded him as a drug addict and discriminated against him on that basis. Because the district court did not address, however, whether FedEx improperly required him to disclose his use of legally prescribed prescription drugs, the court reversed summary judgment in part, remanding this claim to the lower court. Finally, the court found that Aetna, the administrator of FedEx’s short-term disability plan, did not breached its fiduciary duty under ERISA when it reported to FedEx that the employee filed a disability claim for substance abuse (Williams v. FedEx Corporate Services, February 24, 2017, McHugh, C.).

When FedEx realigned its sales territories in 2010, the long-term employee complained about his doubled workload to unsympathetic supervisors who ignored his requests for help, purportedly belittled and berated him, called him Mr. Secondary, and accused him of whining and “being a baby.” Around this same time, he failed to record sales calls in the iSell database. When his supervisor tried to contact him, he explained he had been in the ER and would be out of the office for several days. The employee had started taking OxyContin in 2008 for chronic neck pain and was later diagnosed with “addiction to narcotics.” He was prescribed Suboxone to replace the OxyContin, which he took for about a year. On the day his supervisor attempted to contact him, he had gone to his doctor to discuss Suboxone withdrawal. Throughout the rest of the month, he visited his doctor multiple times due to withdrawal symptoms.

The employee ultimately took a leave of absence during which he called Aetna to initiate a claim for short-term disability benefits for work-related stress and anxiety. Because he also disclosed that his withdrawal from Suboxone was preventing him from working, Aetna notified FedEx that he had filed a disability claim for substance abuse. As a result, he was given a mandatory referral to a drug treatment program and was required to agree to undergo a post-treatment drug screen before returning to work. Upon his return, he was disciplined for his failure to record the calls in iSell. He subsequently sued, asserting claims under the ADA against FedEx and Aetna; the district court granted summary judgment in favor of both companies.

Actual disability. Affirming summary judgment on his traditional ADA claim, the appeals court found no evidence showing the employee was subjected to a hostile work environment. At most, the evidence showed he struggled under a heavy workload, he received no relief when he asked for help, and he experienced mistreatment by and disciplinary action from his supervisors. Nor was there any evidence FedEx’s conduct was based on his disability as there was nothing indicating anyone at FedEx knew about his anxiety and adjustment disorder until he objected to placement in the drug testing program on the ground his medical leave was for his anxiety, not substance abuse. Indeed, the court observed, most of the conduct on which he relied occurred before this disclosure, and there was no evidence that his post-disclosure discipline for failing to complete iSell entries was due to his disability.

Regarded as. As for his regarded-as claim, the employee argued that FedEx’s proffered reason for requiring him to pass a drug test and to remain in the drug testing program for five years—its policies require mandatory enrollment in a drug testing program if an employee seeks treatment for drug or alcohol abuse, and Aetna reported that he had taken leave for substance abuse—was pretext because he sought disability benefits for stress and anxiety. While he focused on the accuracy of Aetna’s report and on whether he was in fact drug-dependent, he failed to show that FedEx lacked a good-faith belief, as Aetna had informed it that he suffered from substance abuse, and FedEx acted on that belief when it placed him in its drug testing program.

Disability-related inquiry. The employee also claimed that FedEx violated the ADA when it required him to submit to monthly drug tests and disclose his use of legally prescribed medications. Noting that it has recognized that requiring disclosure of prescription drugs may violate the ADA, the court observed that the district court did not address whether FedEx improperly required him to disclose his use of legally prescribed prescription drugs. On that basis, the court reversed in part the grant of summary judgment in FedEx’s favor, remanding to the lower court to address this claim in the first instance.

Nor did the lower court address FedEx’s argument that it could not be liable even if it required medical examinations and made disability-related inquiries because it had a legitimate business reason for doing so: Its drug testing policy ensures that employees who seek assistance for drug abuse or dependence are no longer abusing the drug when they return to work. Because it did not have an adequate record to decide this issue on appeal, the court remanded this to the lower court as well.

ERISA claim. Finally, the court found Aetna did not breach its fiduciary duty under ERISA. While the employee claimed Aetna acted arbitrarily and capriciously when it provided him benefits for only 13 weeks, rather than 26, pursuant to a finding of chemical dependency, he overlooked the fact that in addition to telling Aetna about his stress and anxiety, he also disclosed that “he was in the process of suffering from withdrawal from legally prescribed Suboxone.” Further, his medical records showed that in the weeks preceding his call, he visited multiple medical providers to whom he expressed concerns about Suboxone withdrawal.

Nor did Aetna breach it duty by reporting to FedEx that he filed a claim for substance abuse and by later failing to correct its report. When Aetna concluded that he suffered from a chemical dependency, it had a duty under the FedEx’s drug abuse policy to report his condition. Further, the employee agreed that Suboxone withdrawal was one of the medical conditions preventing him from working. Thus, Aetna did not provide inaccurate information when it reported to FedEx or when it declined to change its report upon receiving additional information about his condition.

Source: FedEx employee suffering from anxiety, meds withdrawal did not show bias based on actual or perceived disabilities