Suit against FBI for hostile work environment cleared to proceed

• Date: 01 May 2020
• Published date: 01 May 2020
• DOI: http://doi.org/10.1002/nba.30764

NONPROFIT BUSINESS ADVISOR MAY 2020

10 © 2020 Wiley Periodicals, Inc., A Wiley Company • All rights reserved

DOI: 10.1002/nba

Employment Law

Here’s a look at several recent notable lawsuits involving nonprots. Nonprots should regularly review

employment laws and their compliance efforts to avert similar issues.

Hostile work environment

Suit against FBI for hostile work

environment cleared to proceed

The plaintiff became a management and program

analyst at the Federal Bureau of Investigation in 1987.

In 2012, he was diagnosed with a major depressive

disorder and severe anxiety that limited his ability to

sleep, concentrate and communicate.

Still battling the same disability in 2017, the plain-

tiff asked the FBI to accommodate him in the form

of additional time to work on projects, and to work

at home one day a week.

However, the bureau allegedly denied his request.

The plaintiff led two separate formal complaints

with an Equal Employment Opportunity counselor in

April 2017 and March 2018. Although the allegations

underpinning each of those complaints differed, he

essentially asserted in both that the FBI had failed

to accommodate his disability, created a hostile work

environment, discriminated against him because of

his known disability and retaliated against him for

engaging in protected activity.

The plaintiff led a suit in 2019 that made several

claims.

One was a hostile work environment in violation

of the Rehabilitation Act. In support of that claim,

the plaintiff alleged a slew of incidents involving

various supervisors that concerned: (1) denying his

repeated accommodation requests, (2) wrongfully

demoting him, (3) ignoring his request to leave work

for a medical appointment, (4) delaying a promotion,

(5) downgrading his duties, (6) requiring him to alert

a supervisor whenever he arrived at—and before

he left—work and (7) intimidating a colleague for

serving as a favorable witness in the investigation

involving his 2017 EEO complaint.

The defendant led a motion to dismiss the hostile

work environment claim, arguing that the allegations

didn’t establish conditions that were sufciently severe

or pervasive to state a claim.

The district court judge said the Rehabilitation Act

barred the government from discriminating against

its employees with respect to their “terms, conditions,

or privileges of employment” because of a disabili-

ty. He also explained that the U.S. Supreme Court

had decided that the phrase “terms, conditions, or

privileges of employment” evinced a congressional

intent to strike at the entire spectrum of disparate

treatment in employment, which included requiring

people to work in a discriminatorily hostile or abusive

environment.

The judge said the D.C. Circuit had extended that

reasoning by holding that a hostile environment could

also amount to retaliation under the antidiscrimina-

tion laws. He also said the plaintiff was required to

show that the bureau had subjected him to discrim-

inatory intimidation, ridicule and insult sufciently

severe or pervasive to alter the conditions of his em-

ployment and create an abusive working environment.

EMPLOYEE WINS ➔ The judge refused to dis-

miss the claim, ruling that the allegations had indeed

cleared the high bar required to establish a hostile

work environment.

[Gulakowski v. Barr, U.S. District Court for the

District of Columbia, No. 19-32, 09/18/2019].

Hostile work environment

Judge rules against union employee

in ADA suit

The plaintiff was a lobbyist and organizer with the

New York State Public Employees Union.

In August 2014, he was involved in a motor vehi-

cle accident that allegedly caused serious traumatic

injuries to his brain, back, spine and neck. He also

purportedly sustained double vision that required

him to wear special glasses.

Upon returning to work full time in March 2015,

the plaintiff was allowed to take frequent breaks and

also to attend physical therapy once a week.

Starting in August of that year, the chief of staff

allegedly harassed him by: (1) suggesting that the

plaintiff wasn’t really hurt; (2) repeatedly making

negative comments about his continued physical

therapy; (3) once stating “I used to make fun of

people with disabilities all the time, does that bother

you?” (4) sometimes saying “I don’t like handicapped

people”; (5) moving him to another ofce to isolate

him so he wouldn’t have access to the ofcers “who

think you are so great and impressed because of

your car accident”; (6) screaming at him; (7) calling