Court Says Worker With Depression, ADHD Didn’t Prove She Was ‘Disabled’ Under Law
By Chris Opfer
Nov. 12 –A fired university administration worker in Pennsylvania who claimed she was depressed and had attention deficit hyperactivity disorder failed to show she was disabled under the Americans with Disabilities Act and state law, a federal judge in the state ruled Nov. 8 (Fuoco v. Lehigh Univ., 2013 BL 311461, E.D. Pa., No. 5:11-cv-06117, 11/8/13).
Although the 2008 amendments to the ADA require “a less searching analysis of whether a plaintiff is substantially limited” than under the pre-amendment law, the U.S. District Court for the Eastern District of Pennsylvania held that D’Anna Fuoco didn’t provide enough evidence to show her impairments limited a major life activity or impacted her ability to do her job at Lehigh University. The court granted summary judgment to Lehigh on Fuoco’s ADA and Pennsylvania Human Relations Act disability discrimination claims.
Judge J. William Ditter said Fuoco’s attorney acknowledged during oral argument that her depression “had nothing to do with” the performance issues for which she was fired. The judge also said Fuoco didn’t present evidence showing that she was actually diagnosed with depression or that she mentioned any such diagnosis to anyone at the university.
While Fuoco was apparently diagnosed with attention deficit disorder and attention deficit hyperactivity disorder, the court said these diagnoses came after she was fired. Fuoco didn’t explain how the impairments affected a major life activity or her ability work, according to the court, nor did she show that the university regarded her as disabled prior to her termination based on the ADD and ADHD.
First Performance Dip Stress-Related
Fuoco began working at Lehigh in 1997 and was employed as a secretary in the admissions office before taking a coordinator position in multicultural affairs in January 2008.
According to the court, her performance was satisfactory until late 2005. In May of that year, she apologized for a string of absences during the prior six months in a letter to supervisor Lisa Dubreuil. Fuoco explained that she had missed work because of “health and personal problems” and said she was seeking medical treatment in order to get her “life back on track.” She also referenced “depression and anxiety” in the letter.
In September 2005, Fuoco was given additional responsibilities when a co-worker was fired and she quickly became overwhelmed by the increased workload. Dubreuil denied Fuoco’s request to be relieved from phone answering responsibilities in order to focus on her other work.
Dubreuil and another supervisor reprimanded Fuoco for poor performance the following month, focusing in particular on communication, organization and attention to detail deficiencies. Dubreuil began meeting with Fuoco on a weekly basis to assess her performance and later placed her on probation after Fuoco received a poor annual performance review in December 2005.
Fuoco testified that her work was impacted during this time because of significant stress at home–she was caring for her daughter, whom the court said nearly died from an overdose–as well as that caused by the increased workload. She took a four-month leave of absence in early 2006 in order to take care of her daughter.
Fuoco admitted in a deposition that she “might have lied” to Lehigh by saying that she needed the time to deal with depression. She said she submitted a note from her doctor to the school, which she believed–but couldn’t definitely recall–stated that she was suffering from depression.
Nevertheless, Fuoco maintained that she was indeed diagnosed with depression at some point during this time and that she was prescribed an antidepressant while she was out on the leave of absence. She also said she was treated for migraines during this time. In October 2007, Fuoco was injured in a car accident and underwent surgery to treat a related back injury roughly two years later.
Fuoco began working in the multicultural affairs office Jan. 3, 2008. She was tasked with coordinating events and meetings, maintaining an office calendar and making arrangements for student activities.
Although her performance review for the first year was satisfactory, Fuoco’s supervisors expressed concerns about her frequent absences in 2009. These absences were for doctor’s appointments and physical therapy sessions related to the car accident injuries, her continuing bout with migraines and a heart murmur, according to Fuoco. Her performance was rated as “needs improvement” in December 2009.
Fired for Continued Mistakes
After taking leave for the back surgery in April 2009, Fuoco also missed significant time on the job in order to address her own medical needs, as well as those of her family. She was eventually fired in September 2010 following a string of botched assignments.
In August 2010, for example, Fuoco failed to reserve tickets for a student trip to a local amusement park, an oversight that cost the school money because it had to buy the tickets individually at the gate on the day of the trip. She also failed to enter a mandatory breakfast meeting on two department officials’ calendars, causing them to miss the event. Fuoco had also been instructed to attend the meeting, but did not do so.
Even though she had been placed on a performance improvement plan, her work continued to falter. On Sept. 22, 2010, Fuoco neglected to order food and decorations for the office’s Hispanic Heritage Days event, which the school said was one of the office’s most important events of the year. Fuoco was on vacation at the time, and didn’t make the arrangements prior to leaving.
The university decided to fire Fuoco the same day. One day later, however, Fuoco left a voicemail message for her supervisor in which she said that she wouldn’t be coming to work because she was concerned for her well-being. In a deposition, Fuoco said she told the supervisor that she was “going to call my doctor and make an appointment to be seen immediately, possibly even go to the hospital.” The school informed Fuoco that she had been terminated that afternoon.
According to Fuoco, she spoke to supervisors in the month leading up to the incident, advising them of her concerns about her physical and mental health. Saying that she wasn’t sure it if was her “disability or menopause,” Fuoco told the supervisors that a medical condition might be to blame for her poor performance. She also testified that she probably referenced menopause, her age and a supposed ADD or ADHD diagnosis during these conversations, but wasn’t entirely sure.
Fuoco said she was diagnosed with ADD shortly after her termination, based on testing that she underwent prior to the firing. In April 2012, another doctor determined that she met the criteria for ADHD and indicated in an accompanying report that she also suffered from “depressive disorder.”
Fuoco later sued the university for disability discrimination under the ADA and the PHRA.
‘Individualized Assessment’ Shows No Disability
Granting summary judgment to Lehigh, the district court held that Fuoco didn’t show that she was “disabled” for purposes of the ADA and state law.
“While the terms of the ADA are interpreted broadly, the determination of whether a plaintiff’s impairment ‘substantially limits’ a major life activity will require an individualized assessment that compares the person’s ability to perform the activity as compared to most people in the general population,” Ditter wrote.
While her claims were “characterized by uncertain and contradictory assertions,” the judge said Fuoco did establish that she was hampered by a variety of physical and mental impairments, including the migraines, back injury, heart murmur, stress-related anxiety, menopause and substance addiction. The only impairments that she claimed rose to the level of disabilities, according to the court, were her depression and ADD.
The court said Fuoco’s counsel conceded during oral argument that the depression “had nothing to do with” the performance problems cited by the university leading up to her termination.
“Fuoco offers no documentation of a depression diagnosis,” Ditter wrote. “Moreover, nothing in the record indicates Fuoco experienced symptoms of depression, sought treatment for it, mentioned it to anyone at Lehigh, or herself believed she suffered from depression after 2006.”
Similarly, the court said Fuoco didn’t provide enough evidence to show that she actually experienced ADD or ADHD before her termination or that these impairments may have impacted a major life activity during this time. Indeed, the evidence showed that she didn’t learn of the supposed diagnoses until after she was fired.
“Since Fuoco did not provide any documentation of these diagnoses, there is no way to know if they were accompanied by treatment-recommendations for ADD–and if they were, whether or not she acted upon them and whether or not they were effective, nor did she testify about these matters,” Ditter said. “What we do know is that she reported nothing about them to Lehigh.”
While a physician determined roughly 18 months after the termination that Fuoco then met the criteria for ADHD, the court noted that this conclusion was based in part on Fuoco’s self-reported medical history, including her claim that she had previously been diagnosed with ADD. The doctor didn’t indicate that he reviewed documentation supporting that diagnosis and, because he wasn’t Fuoco’s treating physician, the court said his findings were not entitled to the same weight.
Ditter said Fuoco made “contradictory” claims that she “knew” she had ADD “all of her life,” but that she didn’t seek treatment until she became “really concerned” that “something was going on” after she began to make mistakes at work in 2010.
“If Fuoco contends that she has always had ADD, then her claim of having an impairment that substantially limited the major life activities of working, thinking, and learning, is defeated as she clearly managed to cope with the undiagnosed ADD all her life without considerable difficulty–that is, she managed to work for Lehigh for nearly 13 years (including almost five years after her 2005 discipline) and to hold down prior jobs,” Ditter wrote.
On the other hand, the judge said Fuoco failed to show how any of the performance problems that led to her firing were linked to the alleged disability. “Fuoco offers nothing other than her speculative and subjective belief that her problems were the result of her ADD,” the judge wrote.
The court further found that Fuoco offered no evidence showing that she was “regarded” as having a disability by the university or that the perception prompted the decision to fire her.
Donald P. Russo of Bethlehem, Pa., represented Fuoco. Lehigh was represented by Kathleen M. Mills of Center Valley, Pa.
By Chris Opfer
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/FUOCO_v_LEHIGH_UNIVERSITY_Docket_No_511cv06117_ED_Pa_Sept_28_2011.