Seyfarth Synopsis: The First Circuit recently sided with an employer in a disability discrimination suit in Trahan v. Wayfair Maine, Inc., Civil Action 19-1961.
The former employee plaintiff claimed that her employer discriminated against her when it terminated her employment and failed to honor her accommodation request after the employer made the decision to terminate her employment. In disagreeing with the plaintiff, the Court issued strong language in favor of employers, noting that employers have a right to consistently enforce their policies and that a request for an accommodation cannot be used as a mechanism to ask for forgiveness for wrongdoing.
The Plaintiff’s Troubled Work History
Plaintiff Kirstie Trahan, who was the victim of sexual assault while a member of the US Army, suffers from PTSD. She was diagnosed with this condition in 2010, approximately seven years before Defendant Wayfair Maine, LLC hired her as an employee at its call center in Bangor, Maine. Trahan did not inform Wayfair of her PTSD diagnosis at the time it hired her.
Wayfair’s call center operated on an open floor plan and employees sat in close proximity to one another. Due to this, Wayfair’s General Rules of Conduct (the Conduct Rules) require employees to treat one another professionally and cooperatively. Wayfair had discharged employees for what it deemed were unprofessional interactions.
In her complaint, Trahan claimed that she had complaints with her working environment almost immediately after she began. She believed that the other employees had created a “clique environment” and were making fun of her. Wayfair denied these allegations or that any other employees made fun of her and the Court ultimately found there was no proof of these allegations.
During her initial training, Trahan had an outburst directed at her co-workers and “threw her headset and slammed down her phone.” Trahan admitted that she remembered calling her co-workers “bitches” during this outburst.
Concerned with Trahan’s unprofessional behavior, Wayfair subsequently investigated the incident. As part of the investigation, Wayfair interviewed Trahan. Trahan did not elaborate on why she had the outburst but did reiterate that she thought her co-workers formed a “clique” and were “a bunch of bitches.” In addition to this, during the interview, Trahan “crossed her arms, faced the wall, and rolled her eyes repeatedly,” which the Wayfair investigator thought was rude and unprofessional. Trahan later testified that her behavior was a coping mechanism because she was suffering from a panic attack. However, she never informed Wayfair she had a disability or that this behavior was a result of the disability. As a result of the investigation, Wayfair placed Trahan on a leave of absence pending further investigation. When informed of this, Trahan again referred to her co-workers as “bitches.”
Wayfair subsequently determined that it would terminate Trahan’s employment for rude and unprofessional behavior. Notably, Wayfair did not believe Trahan was treating her co-workers with the professionalism and respect that it expects of its employees.
After Wayfair made the termination decision, but before it expressed that decision to Trahan, Trahan raised her PTSD diagnosis for the first time, citing it as playing a role in the incident that led to her leave of absence. Trahan also requested that her work position be moved away from the co-workers with whom she quarreled or, alternatively, that she be permitted to work remotely.
The Court’s Analysis
In affirming the trial court’s grant of summary judgment on Trahan’s disability discrimination claim, the First Circuit proceeded to the third step in the McDonnell Douglas framework, pretext. Before doing so, the Court noted that “Trahan’s misconduct was patent” and that Trahan had unambiguously committed a terminable offense. This strong language preceded the Court’s disagreement with each of Trahan’s pretext arguments.
In an effort to demonstrate pretext, Trahan argued that other, non-disabled employees had engaged in misconduct but whom Wayfair did not terminate. The Court made short work of this argument. Trahan admitted that Wayfair had terminated other employees for misconduct and had terminated all employees who had angry outburst. In other words, the Court found that Wayfair consistently ensured that its employees treated one another with professionalism and respect.
In addition, Trahan’s claim that Wayfair did not discipline employees for using the company chat system to make fun of other employees, “snapping” at employees, or using profanity was met with derision. The Court noted that Trahan was “comparing plums to pomegranates.” Trahan had no proof, and Wayfair denied, that employees had used the company chat system to make fun of other employees, much less her. Similarly, the one employee who Trahan alleged “snapped” at another employee did so, even according to Trahan’s allegations, without the use of profanity, unlike Trahan. Thus, the two types of behavior were dissimilar. Furthermore, while Trahan claimed some other employees may have used profanity, a fact Wayfair also denied, Trahan did not allege that those employees directed their profanity at another employee as Trahan did. Therefore, even under Trahan’s allegations, the two behaviors were not the same.
The Court also affirmed the trial court’s grant of summary judgment with respect to Trahan’s failure-to-accommodate claim. Ultimately, the Court found that Trahan’s post-incident request for an accommodation was, in the words of the Second Circuit in McElwee v. County of Orange, 700 F.3d 635, 641 (2d Cir. 2012), “[a] requested accommodation that simply excuses past misconduct [that] is unreasonable as a matter of law.” The Court proceeded to give a strong pronouncement for employers: “Where, as here, an accommodation request follows fireable misconduct, it ordinarily should not be viewed as an accommodation proposal at all.”
In addition to finding Trahan’s request for an accommodation disingenuous, the Court found that the requested seat transfer or ability to work remotely was unreasonable. These items were not feasible for Wayfair’s business and would not have completely assuaged the concerns about Trahan interacting with her co-workers. Also, Trahan’s PTSD triggers were unpredictable and could have occurred anywhere. Consequently, these accommodations would not have permitted her to perform her position in a professional manner.
Lastly, the Court dismissed Trahan’s claim that the record deficiencies regarding the reasonableness of her disability were due to Wayfair’s failure to engage in the interactive process. The Court noted that liability for failure to engage in an interactive process depends on a finding that the parties could have discovered and implemented a reasonable accommodation, but there was no such possibility here.
Key Learning Points
While the First Circuit does not break any new ground in Trahan, the holding reminds employers of the importance of documenting performance issues. If Wayfair had not properly documented the plaintiff’s disciplinary issues, especially in a timely manner and before Trahan sought an accommodation to cover for her misdeeds, then the Court may not have found in its favor. Similarly, employers should remain resolute in enforcing their company policies even when confronted with a request for an accommodation that comes across more of “a plea either for forgiveness or for a second chance.” Employers have the right to maintain and enforce their company policies and should not shy away from doing so due to an after-the-fact request for an accommodation. However, employers must be careful and ensure that they enforce their policies consistently.
For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Counseling & Solutions or Absence Management and Accommodations Teams.