The U.S. Court of Appeals for the Tenth Circuit recently affirmed summary judgment in favor of an employer who terminated an employee for insubordination. In Fisher v. Southwestern Bell Tel Co., Tonia Fisher was employed as a telephone customer service technician and was responsible for installing and repairing telephone equipment. She went out on disability leave for one year, and returned to light duty for two months. Once she was medically cleared to full duty, she was instructed that she would need to demonstrate her ability to climb a pole using hooks. She responded that she had never used hooks during her nine years of employment and was instructed to complete a retraining course on the safe method of climbing a pole using hooks. She refused to attend, claiming that the company was discriminating against her for an internal complaint she made three years earlier while serving a suspension, as well as for having called a hotline to protest the retraining.

She did not attend the class as directed and did not provide medical certification of any medical reason why she could not complete it and was terminated for insubordination.

Claiming that the training requirement was discriminatory and caused by her internal discrimination complaints, Fisher sued the company under Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act. Her ADA claim was premised on the theory that she was “perceived as” having a psychological impairment that substantially limited her major life activities “of being emotionally stable, thinking straight, eating, and working,” by her employer. the trial and appellate courts both disagreed with this claim.

As part of her suit, she claimed that she was entitled to damages for emotional distress. On appeal, she argued that the trial court erred by allowing her former employer to have access to her psychotherapy records, citing the well-founded psychotherapist-patient privilege. Although the court acknowledged the existence of the privilege, the court found that the privilege was not absolute and that “a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue.” The court held that she waived the psychotherapist-patient privilege by placing her medical condition at issue when she sought damages for emotional distress.

The trial court concluded that although Fisher established prima facie cases of gender discrimination and retaliation, the company had set forth a legitimate, nondiscriminatory reason for her termination, namely, insubordination, and that she had failed to establish that the proffered reason was a pretext for discrimination. The court also found that the company had presented evidence that it applied a gender-neutral practice of requiring re-training after a period of absence and that Fisher had failed to show that this, too, was pretextual.