Why it matters: Granting summary judgment to an employer in a Fair Employment and Housing Act (FEHA) suit claiming disability discrimination, failure to accommodate, and failure to engage in the interactive process, a California federal court judge wrote that a new boss is not a reasonable accommodation. An employee alleged that her new boss treated her in “a negative and devaluing manner,” including inappropriate sexual comments, triggering a recurrence of mental health problems. While on medical leave, she told human resources she needed to have a new supervisor. The interactive process was unsuccessful and the plaintiff filed suit. The court tossed the discrimination claim, finding that the plaintiff was unable to prove she was otherwise qualified to perform the essential functions of her job because of her stated inability to work with her supervisor. Further, her failure to accommodate claim failed because her requested accommodation – a new supervisor – was unreasonable as a matter of law, the court said.
Detailed discussion: Marlene Alsup worked for U.S. Bancorp for several years as a regional manager before rising to the level of vice president and “performed her duties in a highly satisfactory manner.” In September 2012, however, Alsup was assigned a new boss. From the beginning, Alsup said he treated her “in a negative and devaluing manner” and made comments she found offensive and of an unwelcome sexual nature.
The new boss caused her history of mental illness to resurface, and she began to suffer panic attacks not only at work but also during off hours, as well as experiencing sleeping problems, inability to concentrate, and a feeling of hypervigilance.
A December 2013 write-up from her boss triggered serious problems, and her therapist placed her on a medical leave of absence. The doctor also informed the employer that Alsup had a diagnosis of Bipolar II and should be accommodated with “a switch in supervisors.”
Over the next few months, a human resources employee repeatedly reached out to Alsup. In multiple conversations and e-mails, Alsup said she could only work with a transfer away from the boss or a new supervisor in her existing position. U.S. Bancorp denied her requests.
Alsup filed suit under FEHA, claiming that the employer discriminated against her on the basis of her disability, failed to accommodate her disability, and failed to engage in the interactive process.
U.S. District Court Judge Kimberly J. Mueller disagreed.
“[I]n order to make out a prima facie case for disability discrimination under the FEHA, plaintiff must allege she could perform the essential duties of the job with or without reasonable accommodation,” the court said. “Because the plaintiff’s claimed disability stems from her inability to get along with her supervisor, and the only effect it had on her job was to render her unable to work with that supervisor, she has not and cannot allege she could perform the duties of her job with or without reasonable accommodations.”
Turning to Alsup’s failure to accommodate claim, Judge Mueller held that the request for a new boss was unreasonable as a matter of law. Lacking California precedent on the issue, the court looked outside the state and found “the overwhelming majority of courts have held a plaintiff may not couch a request for transfer as an accommodation for her disability, and many specifically hold that a transfer is an unreasonable accommodation as a matter of law,” citing decisions from the Third U.S. Circuit Court of Appeals and federal courts in the District of Columbia, Florida, Georgia, Illinois, and Pennsylvania.
Even without the case law, the court said the plaintiff failed to state a claim. “Plaintiff’s work environment could not have been modified or adjusted in a manner that would have enabled the plaintiff to perform the functions of her job,” the judge wrote. “Because the plaintiff here alleges the only possible accommodation would have been her transfer to a different supervisor, and has made no allegations that her workplace could have been modified or adjusted such that she could perform the essential functions of her job, she does not state a claim for failure to accommodate.”
Finally, Judge Mueller dismissed the plaintiff’s failure to engage in the interactive process claim. An HR employee repeatedly attempted to engage the plaintiff in the process, the court said, and tried to explore options for accommodations like applying for vacant positions with the bank. Reviewing the facts in the light most favorable to the plaintiff, “it may be an issue of fact whether the plaintiff refused to engage with defendant to determine a reasonable accommodation; however, defendant fulfilled its duty to engage in a timely, good faith interactive process with plaintiff for the purposes of determining effective reasonable accommodations,” the court concluded.
The judge also rejected Alsup’s implications that due to her mental illness, the employer should have engaged in the interactive process with someone other than her.
While the court dismissed the suit in its entirety, it did so with leave to amend.
To read the order in Alsup v. U.S. Bancorp, click here.