By: Loyd Willaford and Brittany Torrence
In Pasqualetti v. Unified Gov’t of Athens-Clarke County, the U.S. District Court of Georgia dismissed a former police officer’s claims that the Athens-Clarke County Police Department discriminated against him based on its perception that he suffered from a mental disability and that the Department retaliated against him when he filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).
Former Officer Pasqualetti was employed by the Athens-Clarke County’s Police Department since 2001, and worked as a uniformed patrol officer and as part of the Strategic Response Team (SRT). On October 29, 2010, then Officer Pasqualetti (“Pasqualetti”) fatally shot an assailant to protect the life of another citizen. After this event, Pasqualetti was transferred to a different unit in the police force, required to undergo three fitness-for-duty exams, placed on administrative leave, forced to choose between a non-sworn government position and resignation, denied the ability to return early from leave, and removed from his position on the police department’s Strategic Response Team. On November 6, Pasqualetti underwent his first Fitness for Duty Exam (FFDE) with a licensed clinical psychologist, to assess his current psychological status, emotional status, and ability to return to duty as a police officer. Pasqualetti was cleared and returned to the police force. He was later assigned to the Property East Investigative Unit in January, 2011. Pasqualetti remained in Property West for five months. The County placed Pasqualetti on administrative leave in June, 2011 based on reports of his negative attitude and Pasqualetti’s negative comments about his supervisor made while in Property West.
From June, 2011 through June, 2012, Pasqualetti had three more separate FFDEs. Pasqualetti underwent one FFDE in June, 2011, for which the doctor concluded that Pasqualetti was not mentally ill or suffering from a severe mood disturbance or delayed symptoms of posttraumatic stress disorder, but ultimately found that Pasqualetti was not fit for duty. He had another FFDE on August 1, 2011, where an independent doctor concluded Pasqualetti was fit for duty. And finally, he had another FFDE on June 14, 2012, where the department’s doctor found Pasqualetti suffered from no frank psychopathology and that he was fit for duty as a police officer.
Pasqualetti submitted an independent FFDE with an outside doctor which found him fit for duty. The Department denied Pasqualetti’s request to be reinstated. On December 1, 2011 Pasqualetti filed a charge of discrimination with the EEOC, claiming the County denied his request for an early return to work despite being cleared by another doctor because the County perceived he had a disability. In August, 2012, Pasqualetti had returned to active duty in the Property West Investigative Unit, but was not re-assigned to the SRT. In March, 2014, Pasqualetti resigned from the police department and filed suit against the County asserting that it unlawfully took actions against him based on its perception Pasqualetti suffered from a mental disability.
First, Pasqualetti claimed the County’s actions violated Title I of the ADA and §504 of the Rehabilitation Act. Pasqualetti alleged that the County discriminated against him based on the County’s perception he suffered from a mental disability when the County (1) continued Pasqualetti ‘s assignment to Property West for months after the shooting; (2) placed him on administrative leave in June 2011; (3) required him to submit to a second FFDE with Dr. Williams; (4) forced him to choose between the non-sworn Code Enforcement position and resignation; (5) denied his request to return early from his requested one-year leave of absence; (6) delayed his return to work for six weeks after he passed the third FFDE; (7) returned him to the Property West position after his return from his one-year leave of absence; and (8) removed him from the SRT. The County, on the other hand, contended that these actions were legitimate business decisions based on Pasqualetti ’s negative attitude, demonstrated hostility toward and inability to get along with his supervisors, and poor performance.
The Court found that, even assuming Pasqualetti’s delayed return to work and assignment to Property West after his return from the requested one-year leave of absence qualified as adverse employment actions, no reasonable juror could find the County’s reasons for these actions were illegitimate or motivated by discriminatory intent. Rather, Pasqualetti failed to create any genuine issue of material fact that the County’s decisions regarding Pasqualetti’s employment were merely pretext for disability discrimination.
Pasqualetti claimed that the County delayed his return to work after his one-year leave of absence, reassigned him to Property West, and removed him from SRT in retaliation for filing the December 1, 2011 EEOC complaint The ADA’s general anti-retaliation provision provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter.” Ultimately, Pasqualetti had to show that the County’s reasons for the adverse actions were pretext for retaliation and retaliation was the “but-for” cause of the adverse action, and that the proximity between protected expression and adverse action is “very close.” The Court agreed with the County’s contention that Pasqualetti could not satisfy a sufficient causal connection between Pasqualetti’s EEOC complaint and the alleged adverse employment actions. Here, the Court reasoned that:
Even assuming Pasqualetti satisfies causation, no reasonable jury could find the County’s reasons for its actions were pretext for retaliation. Pasqualetti could not point to a genuine issue of material fact that legitimate reasons were not what actually motivated the County’s conduct.
This case illustrates the difficulty in proving intent to discriminate and the importance of independent evidence beyond simply that a person is in a protected class and suffers an adverse employment action. Here, Pasqualetti offered evidence that other officers who had been involved in fatal shootings had been treated differently: they had been returned to unrestricted duty. Because those officers had not had a doctor recommend different duty, and circumstances of their shootings were different from Pasqualetti, the Court found they were not similarly situated enough to make them comparators to Pasqualetti.
Courts often use this rationale to ignore evidence in cases that are close calls. The Court’s reasoning here was that in the absence of more direct evidence of discrimination, it was required to defer to the employer’s reasoning. Frankly, courts usurp the role of the jury in making determinations like this. However, some courts will do this in cases where the facts in an employment discrimination case do not clearly point to discrimination.
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