ADA & Disabilities, Leave Management, Policy, and Compliance

Manager Claims Disability Bias after Employer Requires Psychological Evaluation

The U.S. 6th Circuit Court of Appeals—which covers Kentucky, Michigan, Ohio, and Tennessee—recently heard from a former Home Depot manager, claiming that he was discriminated against based on a “perceived” disability. The manager claims he was put on medical leave and required to undergo a psychological evaluation. The manager had made “threatening remarks” that could be perceived as dangerous. Was this a case of disability discrimination?

KentuckyFacts

“Sherman” worked as a store manager for Home Depot in Louisville. In November 2013, he complained that his supervisor, “Calvin,” had engaged in abusive behavior. Home Depot terminated Calvin a month later for allegedly bullying employees.

According to Sherman, Home Depot’s regional vice president began micromanaging him. On April 4, 2014, the district manager allegedly informed Sherman that he would be fired in the next 3 weeks. Two weeks later, Sherman asked the district manager when his termination would occur. The district manager allegedly said they could discuss it the following Monday.

Sherman replied, “This is bullsh*t.” The district manager interpreted the comment as a threat of violence and reported the conversation to Home Depot. The same day, Home Depot placed Sherman on administrative leave and said he had to undergo a psychological evaluation before he could return to work.

On April 23, 2014, Sherman completed the mandatory psychological evaluation, and he was deemed not to constitute a threat to anyone. When he asked when he could return to work, he did not get a response. He began requesting the terms of his leave multiple times a day and was ultimately told he was being terminated for violating the company’s “respect” policy.

Sherman filed a lawsuit alleging discrimination based on a “perceived disability,” retaliation, and a hostile work environment. He alleged that Home Depot regarded him as being of unsound mind, forced him to take medical leave, and terminated him because he reported bullying and its mistaken belief that he was insane. Home Depot asked the trial court to dismiss the lawsuit. The trial court agreed with Home Depot, and Sherman appealed the ruling to the 6th Circuit. The court of appeals, however, agreed with the trial court.

Court’s Ruling

According to the court of appeals, Home Depot’s requiring Sherman to undergo a psychological examination and placing him on leave failed to show that the company “perceived” him as disabled. At best, it indicated that Home Depot considered him dangerous, which is not a disability.

The court of appeals also rejected Sherman’s retaliation and hostile work environment claims. According to the court, a retaliation claim requires the employee to show he was terminated because he engaged in protected activity by opposing or complaining about an unlawful employment practice.

Sherman reporting his former supervisor for making abusive remarks did not constitute protected activity because the supervisor’s conduct was not unlawful. Making generic abusive remarks is not illegal under Kentucky law, and thus, making a complaint about such remarks isn’t protected conduct, which is necessary to support a retaliation claim. Likewise, the use of generic abusive remarks could not establish an illegal hostile work environment. Krueger v. Home Depot USA, Inc., No. 16-5174, 2017 WL 24751 (6th Cir., Jan. 3, 2017).

Bottom Line

This case is helpful for employers. Many employees mistakenly equate any mention of medical conditions or examinations with an illegal belief by their employer that they are impaired or disabled; link postcomplaint discipline with retaliation, based solely on temporal proximity; and equate workplace behavior they dislike with an “illegal” hostile work environment. This case demonstrates that not all medical conditions satisfy disability discrimination laws, not all complaints constitute protected conduct, and not all unpleasant work conditions create an illegal hostile work environment.

To the contrary, routine fitness-for-duty exams should not mean an employer views an employee as disabled or “unfit.” Likewise, this case protects employers from employees who constantly complain about others as a defense to their own misconduct. Finally, this case recognizes that employment laws do not establish a “code of manners” but instead address and prohibit behavior made illegal by statute.

Jennifer Bame, contributor to Kentucky Employment Law Letter, can be reached at jbame@fbtlaw.com.