Attorney Sues Former Employer: Interactive Conversation, Failure to Accommodate

Erica Serine is an attorney with a 4 year record of successful employment in the practice of law in the Commonwealth of Pennsylvania. In the fall of 2012 Serine sought a reasonable accommodation to address a disability triggered by an impairment she identified as being claustrophobia-related. The results of a recently released partially successful motion to dismiss her case give us background to the case and, important to each of the visitors to this blog space, the ADA Title I actions involved in her claim. The next four paragraphs are taken, more or less, from the court record.

Erica Serine sued her former employer, a legal firm with eight offices in the area surrounding Philadelphia, alleging a failure to reasonably accommodate a disability in violation of the Americans with Disabilities Act (“ADA”), unlawful termination in violation of the ADA, and intentional infliction of emotional distress.

 In June 2012, Serine requested and received a transfer to the firm’s Philadelphia or Invisible DisabilitiesCherry Hill office, as she required little face-to-face supervision and her family preferred living in the Philadelphia area. She reported to her new office, located on the twenty-fourth floor of a Philadelphia high rise on October 1, 2012.

Serine’s experience of riding the elevator reportedly resulted in extreme nervousness at work, particularly while riding the elevator or while away from a window. This resulted in her being unable to sleep or eat. Further, it was reported that she obsessively researched evacuation plans for high building floors. Although her symptoms ranged widely, Serine generally referred to her condition as “claustrophobia.”

After one day working at the 24th floor location, she began working from home. Approximately a week later, Serine advised her supervisor and the Director of Human Resources that she could not return to the Philadelphia office due to her symptoms. Her supervisor allowed her to work from home while she sought treatment with a psychologist.

Referring to the partial record above, and other details of the court record, my attention is drawn to the chronology that triggered Title I issues.  In order of occurrence they are:

  1. Not noted in the record is the creation of a formal Request for Accommodation.

The employer should have created an electronic (see: reasonableaccommodation.com) or paper trail of the Request for Accommodation and all conversations or actions that followed.

  1. Serine met with supervisors to discuss her situation further. One supervisor questioned the sufficiency of her medical documentation.

The employer has the right to request sufficient documentation of the employee’s impairment that supports her disability. The response from a physician should be retained in a private, individual medical file.

  1. In the course of this meeting, her supervisor informed Serine “that there was no place for her in the firm other than in the Philadelphia or Scranton offices”.

This comment runs contra to the foundation of the law’s concept of the good faith “interactive conversation”. There is no record of an attempt to identify an opportunity for Serine to continue her successful practice of law with the firm. At issue here is her ability to execute the essential functions of her positon. This conversation should focus on the company’s good faith attempt to remove the barriers to that continuation of service. In other words, an off-hand dismissal of a solution is a significant red flag to an EEOC investigator as an aberration of the intent of the law.

If the hidden issue had been the plaintiff’s desire to work from home, the employer should have exercised the right to identify an accommodation that did not present an undue hardship while removing the barrier to the enjoyment of the benefits of employment with the law firm. The employer does not have to accept a suggested or requested accommodation.

  1. Several months later a partner in the firm gave Serine a highly favorable performance review and a $5,000 raise, noting that her work performance had not suffered as a result of her health issues.

This is a positive step on the employer’s behalf. An issue that sometimes follows emotionally charged situations is the tendency to retaliate against the employee. That seems to wisely have been avoided here.

The Court’s decision relative to the motion to dismiss the suit runs for 8 pages. The above is a brief, but important, primer on how these cases develop. Here is a no-exhaustive list of the opportunities for learning in this case:

  • Listen for a request for accommodation.
  • As soon as a request is received, create a time log of all that follows.
  • Assign one person to the request: this individual must be capable of carrying out the response to the request from an informed, non-emotional position.
  • If necessary, request “official” documentation of the underlying impairment. Keep this information in a private medical file.
  • Acting in good faith, explore the opportunities for accommodation. Document the process.
  • If a potential accommodation is turned down due to a perceived productivity, financial, or morale factor, perform and document an undue hardship defense.
  • As a last resort, transfer the individual to a position for which he is qualified.
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Reference: SERINE v. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN et al Case Number: 2:14-cv-04868 – United States District Court for the Eastern District of Pennsylvania

Roy Matheson

http://reasonableaccommodation.com/about/

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