Now comes a plaintiff with bladder disease who must use the restroom as often as every twenty minutes and sought the ability to do so as an accommodation.
Upon her return from a two week medical leave, plaintiff’s desk had been moved and her duties reassigned. Three days later, she was terminated. She claimed this was due to her disability, asserting that her supervisor would call her on her desk phone when she was in the restroom, would send a co-worker into the bathroom for her, and would “shake his head disapprovingly” when she returned to her desk. The supervisor denied doing so but admitted asking plaintiff about her whereabouts since she was away from her desk without explanation on several occasions.
Concerning her termination, plaintiff’s employer—the U.S. Department of Commerce (DOC) —argued that it had decided to terminate plaintiff before she went on leave but that she went on leave before that decision could be implemented. The DOC did not produce any documents to support its pre-leave decision argument. In denying summary judgment to the DOC, and in words every employer should heed, the court observed that “[i]n this age of connectivity, this lack of contemporaneous documentation is unusual for such a serious matter.” The court noted that while plaintiff had performance issues, a jury could find that the DOC “artificially inflated the severity of these deficiencies” as a pretext to terminate her due to her disability or her request for frequent bathroom breaks. Akerson v. Pritzker and U.S. Department of Commerce (D. Ma. November 4, 2013).