An off-color comment does not in itself create a lawsuit.

Del Tinto v. Club Com, LLC et al., 2012 WL 5615257, (W.D.Pa. Nov. 15 2012) is an employment discrimination case. The case examines what is required for a plaintiff to meet the “regarded-as” prong of disability as well as what is necessary for hostile work environment claims. The case came before the court on summary judgment by the defendants, meaning the Court was tasked with deciding whether there were any genuine issues of material fact.

The Plaintiff filed a complaint after learning another employee referred to her as a “retard.” Both parties agreed that in 2011, the Plaintiff worked for the defendant as a local data entry sales employee. Her primary job duty was to input data from advertising sales contracts into a computer system maintained by Defendants. She worked for the defendant from February 2011 through September of 2011, at which time she resigned.

The plaintiff had no actual learning disability. Her allegation of disability arose after she learned that another employee had called her a “freaking retard” following a disagreement over a sales contract. The plaintiff took particular offense to this term because her niece and cousin both suffered from varied developmental disorders. The employee who made the comment was not the plaintiff’s supervisor and did not work anywhere near the plaintiff.  When the plaintiff learned of the insult from another employee, she informed her supervisor about the insult. There was no evidence submitted which showed the plaintiff ever complained to any other management-level employees. The Plaintiff’s supervisor, and several other employees, including the one who had insulted the Plaintiff later held a meeting concerning the conflict. The plaintiff did not attend this meeting.

On Septembr 13, the Plaintiff did resign from the defendant. The only connection between the employee and Plaintiff was an email with a contract number that Plaintiff had requested from a different employee.

Since the Plaintiff brought the complaint as a “regarded-as” disability the Court had to define not only disability but also “regarded-as.” The term disability under theADAincludes people with physical or mental impairment substantially limiting one or more major life activity; a record of such impairment; or being regarded as having such impairment. Here the plaintiff admitted there was no disability which is also why the court went straight to “regarded-as.”

In order to be regarded as having a disability, a plaintiff must prove the defendants mistakenly believed that she had an impairment or that the plaintiff had a non-limiting impairment the defendants mistakenly believed substantially limited a major life activity or has no such impairment but is treated by a defendant as having a substantially limiting impairment. Plaintiff bears the burden of showing specific, record facts that her employer believed her to be disabled.

This case involved another employee believing her to be mentally disabled. The employee was not her supervisor, but rather an employee who the Plaintiff came in contact with on an as-needed basis. The Court felt the employer did nothing to show they believed the employee was mentally disabled, but the Plaintiff termed the discrimination as hostile work environment.

The court believed this case was not even prima facie hostile work environment. In such a case, the Plaintiff must show first they have a disability for a hostile work environment claim. Under hostile work environment claims, a Plaintiff must show they are a qualified individual with a disability under the ADA; was subject to unwelcome harassment; the harassment was based on a disability or request for accommodation; the harassment created an abusive work environment; and the employer knew or should have known of the harassment and failed to take any remedial action.

Because the hostile work environment claim requires a plaintiff to first be disabled, the employee /plaintiff was thus unable to move forward with the claim. Additionally, the court’s interpretation of theADAwould determine whether the state-related PHRA claim was successful. Since theADAdetermination was against the Plaintiff, so to the PHRA interpretation went against the plaintiff. Based on this analysis, the court ruled against the Plaintiff.

This case shows the danger in not understanding the case-law. This plaintiff was doomed to fail from the initiation of the lawsuit because she was not disabled. Thus her only chance of success was to succeed under the “regarded-as” prong of the ADA. When the insult came from a non-managerial supervisor, and there was a resignation it further made the case a difficult one for the plaintiff.

About Matthew Weisberg

Matthew B. Weisberg, Esquire, Managing Partner of Prochniak Weisberg, P.C. (www.ppwlaw.com), focuses his practice almost exclusively on the representation of consumers who are victims of mortgage, real estate and auto purchase/financing fraud, as well as in foreclosure/debt collection defense and civil rights representation (employment discrimination and excessive police force). Five years ago having “switched sides,” Mr. Weisberg formerly represented exclusively commercial and residential lenders in the prosecution of mortgage foreclosure and distressed debt collection litigation, lender liability and real estate speculator defense, and tort defense for financial injury defendants. Matthew welcomes all attorney inquiries and especially referrals: 610-690-0801 & mweisberg@ppwlaw.com.
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