Visible difference in 4th Circuit’s take on ‘invisible disability’

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A former deputy court clerk in North Carolina will be able to go to trial with her lawsuit alleging that her bosses violated the Americans with Disabilities Act by terminating her employment after she asked to be assigned different duties to accommodate her social anxiety disorder. A unanimous panel on the 4th U.S. Circuit Court of Appeals on March 12 overturned a federal judge’s ruling dismissing the lawsuit.

Christina Jacobs says that she was asked to work at the New Hanover County Clerk of Court office’s front desk after being promoted from office assistant to deputy clerk, and that this caused her to experience panic attacks. She sent an email to her supervisors requesting an accommodation, and when the county’s elected clerk returned from vacation three weeks later, she was let go.

The N.C. Administrative Office of the Court argues that Jacobs was fired for poor performance, but there was no documentation of poor performance in her employment file.

Jacobs sued the AOC for disability discrimination under the ADA. U.S. District Court Judge Terrence Boyle, of the Eastern District of North Carolina, granted the AOC’s motion for summary judgment, but the Fourth Circuit reversed and remanded the case with a strong rebuke to Boyle for misapplying the standards for summary judgment.

When considering a summary judgment motion, courts are expected to view all facts in the case in the light most favorable to the party opposing the motion—in this case, Jacobs—and grant the motion only if there is no genuine dispute over any of the relevant facts. The Fourth Circuit chided Boyle for, in several instances, viewing the facts in the light most favorable to the AOC, and drawing factual inferences that were contrary to evidence properly submitted by Jacobs.

Vanessa Lucas of Edelstein & Payne in Raleigh represented Jacobs, along with Lisa Grafstein and Mercedes Restucha-Klem of Disability Rights North Carolina. Lucas said that the court’s discussion of summary judgment would be valuable precedent to attorneys in a wide range of employment law cases beyond just ADA cases.

“I’m especially thrilled that the court took the time to really go over the summary judgment standard and point out how poorly the lower court had done on granting summary judgment,” Lucas said. “I certainly hope that every attorney who is responding to a summary judgment motion in the Eastern District of North Carolina is going to cite to this decision.”

A matter of dispute

The AOC argued—and Boyle accepted as a finding of fact—that Brenda Tucker, the elected clerk who fired Jacobs, did not know about Jacobs’ email requesting an accommodation before she fired her. The appeals court found no basis in the record to support such a finding and said that the record, taken in the light most favorable to Jacobs, actually demonstrated just the opposite.

Immediately prior to firing Jacobs, Tucker had met with three of Jacobs’ immediate supervisors, each of whom Jacobs had included in her email requesting the accommodation. Jacobs’ employment file also contained a printed copy of the email that had been annotated by Tucker, and Jacobs claims that this copy was on Tucker’s desk during their meeting. Tucker claims that she read the email only after firing Jacobs, but the appeals court held that given this evidence, a reasonable jury could credit Jacobs’ testimony over Tucker’s.

Helpfully for Jacobs, she had, unbeknownst to her supervisors, tape-recorded the meeting at which she was fired, a meeting she said she had expected would be about her request for an accommodation. During the recording, Jacobs mentioned an email and Tucker did not at any point ask what email she was referring to. The appeals court held that if Tucker were truly unaware of the contents of the email, it is unlikely that she would have responded in the way she did.

Lucas said that the existence of the recording was unusual, and that it was crucial to the case because it was the only direct evidence to impeach Tucker’s credibility.

“For most employees it is down to classic ‘he said, she said’ testimony with nothing but circumstantial support for credibility or lack thereof,” Lucas said. “There would still be many opportunities in Ms. Jacobs’ case to attack credibility, given the contradiction among even the defense witnesses, but the strength of being able to hear how the termination went down exactly is highly valuable and certainly made an impression on the Fourth Circuit.”

‘Invisible disabilities’

The appeals court also rejected the AOC’s argument that Jacobs’ social anxiety disorder did not qualify as a disability under the ADA, which defines the term as “a physical or mental impairment that substantially limits one or more major life activities.” Jacobs argues that her disorder qualifies as a disability because it impairs her ability to interact with others.

The text of the ADA provides a list of major life activities; social interaction is not included but the list is, by its own terms, not an exhaustive one. The U.S. Equal Employment Opportunity Commission has interpreted the ADA to include interacting with others as a major life activity, a reading that the AOC challenged and argued was improper.

The appeals court, citing amendments to the ADA passed in 2008 that were intended to make it easier for people with disabilities to gain protection, found the EEOC’s interpretation to be reasonable.

“Few activities are more central to the human condition than interacting with others. If ‘bending’ and ‘lifting’ are major life activities, it is certainly reasonable for the EEOC to conclude that interacting with others falls in the same category,” Judge Henry Floyd wrote for the court.

Lucas said that ADA challenges can be more difficult when the disability is mental, rather than a physical disability that can be easily observed. If an employer is told that an employee is, for example, deaf, Lucas said, they understand that to be a disability without any further explanation. An employee who provides notice of an underlying mental disability should be treated the same way, she said.

“These invisible disabilities, as some people call them, in this case led to [Jacobs’ employers] claiming that they didn’t know she was disabled, despite having a note in her file saying that she had anxiety issues and needed to see a doctor. That was not enough for them to say that she had told them she was disabled,” Lucas said.

The Fourth Circuit remanded the case back to the Eastern District for trial on Jacobs’ claims of ADA disability discrimination, retaliation, and failure to accommodate. Boyle will preside over the trial. Lucas said that “it will be interesting to see how the hearing plays out.”

The 46-page decision is Jacobs v. N.C. Administrative Office of the Courts (Lawyers Weekly No. 001-051-15). The full text of the opinion is available online at sclawyersweekly.com.

Follow David Donovan on Twitter @SCLWDonovan