Facebook Message Leads to Disability Claim

Posted by Molly DiBiancaOn April 20, 2012In: Disabilities (ADA), Social Media in the Workplace

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Can a Facebook friendship between an employee and her supervisor lead to a claim of disability discrimination under the Americans With Disabilities Act (ADA)? Have a look at the facts in a recent case from a federal court in Seattle, Washington and you can decide for yourself.

The plaintiff, Ms. Peer, was employed by F5 for just a month when she told the company that she was experiencing chronic pain and, as an accommodation, requested that she be permitted to work a reduced schedule. The employer obliged and Peer began working 30 hours per week, using paid and unpaid time off to cover the 10 hours per week that she needed to retain her full-time status.

After two months on a reduced schedule, Peer was diagnosed with major depression. The following month, she was released to return to her 40-hour week. A few weeks later, she was assigned to an early shift--6 am to 3 pm. She emailed her supervisor:

this shift is really stressing me out and exhausting me . . . [and] . . . the thought of having to do it for another 6 or 8 months or longer is making me really depressed.

The following day, she sent a Facebook message to her boss, apologizing for her email the day before and stating:

. . . I start crying the instant my alarm goes off in the morning and don't stop until I finally get to sleep at night. All I do all day at work for the past week is dream up practical ways to kill myself that won't require the people I love to clean up the mess. I've thought about going to the hospital, but don't think it would do me much good since I'm allergic to most psychotropic drugs, and that's really all they could do for me anyway . . .

A few days later, she posted on her Facebook page that "work feels like a war zone. I have some serious PTSD. Walked in the building and automatically started puking this morning."

HR met with the employee and told her that she was being placed on paid leave for two days to enable her to meet with her doctor. HR also told her that she would not be permitted to return to work until obtained a "valid work release" from her doctor. Peer provided a letter the next day from her doctor confirming that Peer was released to return to work full time. She was told she was not allowed to return to work due to her "suicidal thoughts."

Over the next three weeks, Peer attempted to return to work unsuccessfully. She spoke to HR several times in an attempt to clarify what exactly she was required to do to be cleared to return. HR's response was a confusing one (and, dare I say, sounds like it was written by a lawyer), telling Peer only that she needed to participate in the "interactive process" but not telling her how exactly she could fulfill that obligation.

Eventually, she was fired because she had failed to "address the issue of whether [she]remained a threat of harm." She filed suit under the ADA. After discovery was complete, the employer filed a motion for summary judgment. The court denied the motion, finding that there was a triable issue as to whether the employer satisfied its duty to engage in the interactive process with the employee to determine if an appropriate reasonable accommodation could be made.

So what can we learn from this case?

First, this case serves as an excellent reminder of what the ADA requires. The key to the interactive process" is that it must be interactive. Here, the employer gave vague and ambiguous answers to the plaintiff's requests for information about how she could return to work.

Second, I can't help but wonder how much of this case could have been avoided altogether if the employee had not been Facebook friends with her supervisor. Because of this online connection, she was able to send the supervisor the message that seems to have triggered the employer's actions.

In short, put this case in the column of "cons" when it comes to supervisors and their direct reports being Facebook friends.

Peer v. F5 Networks, Inc.,
No. C11-08790-JCC (W.D. Wash. Mar. 19, 2012)

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