Subway Faces Trial on ADA Anxiety Disorder Claims

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By Kevin McGowan

Sept. 21 — A former Subway employee with an anxiety disorder and social phobia raised triable claims that the sandwich chain violated the Americans with Disabilities Act by terminating her after she had an anxiety attack at work, the U.S. District Court for the Middle District of Pennsylvania ruled Sept. 18.

The court said Kiera Barber, who worked as a “sandwich artist” at a Harrisburg, Pa., Subway store for about two weeks in 2012, produced sufficient evidence for a reasonable jury to find that rather than accommodate her disability, Subway fired her because of her anxiety disorder.

Subway argued Barber can't show any “adverse employment action” occurred when the franchise owner told her to leave after Barber experienced an anxiety attack on June 12, 2002, while making a sandwich in front of customers and wasn't able to control her symptoms after some time in the back of the store.

Employee's ‘Subjective Belief' Questioned

Although Barber said she believed shop owner Akash Patel was firing her, Subway said Patel actually was accommodating her by sending her home early. Barber was terminated for job abandonment only after she didn't show up for her subsequent scheduled shifts, Subway said.

Barber's “subjective belief” that she had been fired was insufficient to show adverse action, a necessary component of an ADA prima facie case, Subway contended.

The decisions Subway cited for that principle, however, all are distinguishable from Barber's claim, the court said. “[T]he record contains ample evidence from which a jury could reasonably conclude that Patel terminated Barber's employment immediately following her anxiety attack,” Judge Christopher C. Conner wrote.

At the summary judgment stage, the court must view the evidence in the light most favorable to Barber, the court said. Barber testified that while she was trying to recover in the back of the store, Patel said, “I don't see any reason to keep training you if you're going to keep having anxiety attacks.” Patel then “commanded” her to leave the store, Barber said. Patel and Barber didn't contact each other thereafter, the court said.

“An objective and reasonable juror could fairly construe Patel's words and actions as a termination of Barber's employment, and Barber's failure to return to work as proof of her belief that she was terminated,” Conner wrote. “At this phase, it is not the court's role to weigh the parties' competing evidence or make credibility determinations.”

Accommodation, Retaliation Claims Also Viable 

Barber also asserted ADA failure-to-accommodate and retaliation claims arising from the June 12 events.

During her job interview the previous month, Barber had informed Patel that she suffers from anxiety and might need to take a break if an “anxiety episode” occurred at work. Patel replied that her requested accommodation “wasn't a problem,” and Barber complied with Patel's request for medical documentation of her anxiety disorder, she said.

But after Barber had the anxiety attack and went to the back of the store, Patel made his remark about the futility of further training and “commanded” her to leave. Patel never told Barber she was “fired” or “terminated,” but Barber said she perceived his order to leave as a formal termination.

In seeking dismissal of Barber's failure-to-accommodate and retaliation claims, Subway reiterated that Patel didn't fire Barber June 12, but rather granted her request to leave work early because of the anxiety attack. But the court said that because material factual disputes exist about the parties' interchange that day, Subway isn't entitled to summary judgment.

Drawing all reasonable inferences in Barber's favor, a reasonable jury could find Subway failed to accommodate Barber's request for a break in the immediate aftermath of an anxiety attack and that she was terminated “in direct response” to her accommodation request, the court said.

Barber's claims under the Pennsylvania Human Relations Act also may go to the jury, as the state law is analyzed on the same terms as the ADA, the court found.

Karpf Karpf & Cerruti PC represented Barber. Law Offices of Mark K. Emery represented Subway.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Barber_v_Subway_No_114CV613_2015_BL_302952_MD_Pa_Sept_18_2015_Cou.