Abusive treatment of subordinates, not employee’s PTSD, was cause of firing

By Joy Waltemath

By Kathleen Kapusta, J.D.

An employee fired shortly after telling his supervisor he had PTSD could not establish pretext for disability discrimination by pointing to, among other things, his recent positive performance evaluations or a relatively minor misstatement in the employer’s EEOC position statement. Nor did the fact that the decisionmakers questioned the veracity of his PTSD claim show that the stated reason for discharging him—creating a hostile and intimidating work environment for his subordinates—was pretextual, the Seventh Circuit ruled, affirming summary judgment against his ADA and Rehab Act claims (Monroe v. Indiana Department of Transportation, September 18, 2017, Williams, A.).

A long-time state transportation department employee was fired shortly after seven or eight of his subordinates complained to his supervisor that he screamed at them, treated them badly, threatened to fire them, and publicly ridiculed one subordinate who had a hearing impairment. When his manager informed the employee about the complaints, the employee told him that he had been diagnosed with PTSD. During a subsequent investigation by the HR manager, other employees confirmed he was intimidating, volatile, and demeaning. After discussing whether his PTSD diagnosis was legitimate given that it occurred right after the complaints against him, the employee’s manager, the HR manager, and two others decided to terminate him.

The employee then sued, claiming he was terminated on the basis of his disability in violation of the ADA and the Rehab Act, and the district court granted summary judgment against his claims.

Pretext. On appeal, the employee argued that the district court ignored evidence of pretext, including that he received positive performance evaluations for the three years leading up to his termination and therefore he could not have “consistently” exhibited hostile and intimidating behavior; his employer made a misstatement regarding the number of employees who complained about him; made inconsistent statements during discovery regarding whether his supervisor told the HR manager and other decisionmakers about his PTSD; and the decisionmakers discussed his PTSD before deciding to terminate him.

Performance evaluations. Rejecting this contention, the appeals court first pointed out that while he did receive positive performance evaluations for three years before his discharge, including his last evaluation that was completed less than one month before he was fired, his supervisor did not know of his continued and serious mistreatment of his subordinates before several of them complained. Upon learning of the complaints, the supervisor went to his supervisor and the HR manager, who then conducted an extensive investigation, which confirmed the complaints. Thus, the earlier positive evaluations did not call into question the employer’s proffered reason for discharge.

Misstatement. The employee next pointed to the misstatement in the employer’s position statement to the EEOC indicating that seven subordinates were present at a safety briefing that prompted the complaints and that all seven went to the employee’s supervisor to complain. The employee argued that he supervised 18 employees and thus, if none was absent, not all of them went to complain to his supervisor after the meeting. Here, said the court, while it is more compelling to say that all employees at the meeting went to complain about their supervisor, it was not significant that seven or eight out of 18 went to complain. In short, although the statement was careless, is was not significant enough to create a fact issue as to pretext.

Who told whom? The issue of whether the employee’s supervisor told other decisionmakers about the employee’s PTSD was similarly insignificant, said the court, noting that while there was some disagreement amongst the decisionmakers over this, it was undisputed the employee himself told the other decisionmakers about his diagnosis. Thus, he could not establish pretext by pointing to a disagreement between two defense witnesses regarding an insignificant detail.

Discussion of PTSD. Nor did the fact that the decisionmakers discussed the employee’s claim he had PTSD during the meeting at which they decided to fire him establish pretext. According to the HR manager, they discussed whether he actually had PTSD, given the fortuitous timing of his disclosure and his failure to submit any documentation from a health care provider confirming the diagnosis. Moreover, the court observed, even if they believed he had PTSD, and that this caused him to not be able to sleep and to be volatile toward his subordinates, an employer may, consistent with the ADA and the Rehab Act, terminate an employee for inappropriate behavior even when that behavior is precipitated by the employee’s disability.

Comparators. And while the employee also argued that three nondisabled employees engaged in similar misconduct but were not fired, they were not similarly situated. As to the first, there was very little evidence regarding his misdeeds and thus the employee failed to show his behavior was comparable. Nor were any of the supervisors involved in the employee’s discharge involved in the decision to take away the alleged comparator’s supervisory responsibilities.

Further, at the time the two alleged comparators engaged in arguably similar misconduct and were not fired, the state agency’s employees could be terminated only if it could show “just cause” for the discharge. When the employee, however, engaged in the misconduct for which he was fired, employees were employed “at will” and the employer no longer had to show just cause for discipline. Further, the second comparator was not discharged during the “just cause” time period but was given the option to resign or be fired during the “at will” time period after he angrily approached a former supervisor and yelled at him.

The court also rejected the employee’s assertion that, because he was fired on the basis of a disability, his termination fell under the public policy exception to the employment-at-will doctrine and therefore he should be considered a “just cause” employee. However, Indiana’s public policy exception has been narrowly construed to apply only to persons discharged for filing a workers’ compensation claim or for refusing to commit an illegal act and the employee failed to create a fact issue regarding whether he was fired on the basis of a disability.

Finally, as to the third comparator, the court found his misconduct—telling two coworkers to “get away from the f****** truck” he wanted to drive, throwing down a squeegee, and stomping his feet—was not as egregious as the employee’s. And while he was later demoted for putting his hands on a coworker, the two incidents occurred over a year apart whereas the employee created a hostile and abusive work environment for his subordinates over a lengthy period of time, including targeting an employee with a hearing disability. Thus the district court did not err in granting summary judgment.

Source:: Abusive treatment of subordinates, not employee’s PTSD, was cause of firing