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Refusal to Return Officer to Active Duty Not Adverse Action

By Kathryn P. Roberts  5/30/2014
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The city of Philadelphia did not discriminate against a police officer when it refused to return her to active duty because of persistent mental impairments, the 3rd U.S. Circuit Court of Appeals ruled.

Plaintiff Elisa Diaz, a police officer, claimed that her employer discriminated against her in violation of the Americans with Disabilities Act (ADA) when it failed to accommodate her psychological injury, treated her differently from officers with physical rather than mental injuries and terminated her based on her disability.

The city hired Diaz as a police officer in June 2003, and she was assigned to the position of patrol officer. Early in her employment, Diaz filed a sexual harassment complaint against her supervisor. The city transferred Diaz and disciplined her supervisor, but she continued to suffer from the resulting anxiety and depression. In February 2007, Diaz was injured in the line of duty and placed on injured on duty (IOD) status. During this period, she received wages and medical benefits under the Heart and Lung Act (HLA), a Pennsylvania statute that provides payments to officers injured in the line of duty.

Diaz returned from medical leave in 2008 and was put back on patrol. Shortly thereafter, she requested accommodation for anxiety and was assigned to work in the closed circuit television (CCTV) unit. Diaz had problems in the CCTV unit–she was often absent and fought with a co-worker, for which she received a seven-day suspension. In March 2009, the city wanted to put Diaz back on patrol, but she asked to stay in the CCTV unit. Diaz argued that her anxiety and depression medications could slow her reaction time, putting her and other officers at risk. She requested limited duty until her health improved. The city denied Diaz’s request and, instead, initiated an evaluation of her fitness for duty.

After the evaluation, Diaz was placed on “no duty” status. Diaz again sought IOD status and benefits under the HLA, arguing that her disability was the result of the earlier on-the-job sexual harassment. The city, however, determined that Diaz’s injuries were not job-related and declined to place Diaz on IOD status. Diaz unsuccessfully challenged this finding before the city’s Civil Service Commission but did not appeal the adverse decision. Diaz took paid leave until June 2009, at which time she took unpaid medical leave. When Diaz did not seek an extension of her leave, the city terminated her in February 2010.

Diaz filed a lawsuit in the Eastern District of Pennsylvania, alleging discrimination under the ADA. The court granted summary judgment in favor of the city on Diaz’s discrimination claim, finding that the city reasonably accommodated Diaz and that she was terminated because she failed to seek an extension of her leave.

The 3rd Circuit affirmed the dismissal on three grounds. First, Diaz could not state a prima-facie case, because she suffered no adverse employment action. Second, even if Diaz could state a prima-facie claim, she could not show the city’s legitimate nondiscriminatory reason for her termination was a pretext. Diaz argued that she had suffered an adverse employment action when the city denied her a reasonable accommodation, subjected her to disparate treatment because her impairments were mental and not physical, and failed to place her on IOD status.

Regarding accommodation, the court concluded that the city acted reasonably when it granted her requests for leave, observing that an employer is not required to give an employee his or her preferred accommodation. The court deemed Diaz’s request to return to CCTV “not necessarily reasonable” in light of her prior difficulties there. Finally, the court concluded that it was reasonable for the city to require Diaz to resolve her mental health issues before returning to active duty.

Next, the court rejected Diaz’s disparate treatment argument, because the ADA does not require equal coverage of employee benefits. It cited Ford v. Schering-Plough Corp., 145 F.3d 601 (3rd Cir. 1998), in which the 3rd Circuit ruled that an employer’s health insurance plan need not provide equal coverage for all disabilities. The court held that, here, the city did not violate the ADA by offering different duty assignments to officers depending on their disabilities. The court also rejected Diaz’s attempt to “relitigate her IOD status,” recognizing the preclusive effect of the Civil Service Commission’s determination.

Finally, the court reasoned that, even if Diaz had been able to establish an adverse employment action by the city, she failed to raise a question of fact as to pretext. The court validated the city’s decision to place Diaz, and other officers with psychological injuries, on “no duty” status, reasoning that such status gave them an opportunity to seek treatment. It also ensured the safe and efficient operation of the department, because officers prematurely returned to duty with psychological injuries often developed physical injuries.

Diaz v. City of Philadelphia, 3rd Cir., 12-2593 (May 2, 2014).

Professional Pointer: Employers need not provide employees with their preferred or requested accommodation, so long as the accommodation given is reasonable. Even so, employers should carefully articulate and document their reasons for offering an alternative accommodation.

Kathryn P. Roberts is an attorney in the Portland, Ore., office of Ogletree Deakins, an international labor and employment firm representing management.

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