By Emily Nelson
Plaintiff Leif Henry, a police officer for the City of Allentown, Pennsylvania, filed suit against the City alleging, among other things, disability discrimination and retaliation under the Rehabilitation Act after a superior officer complained about Henry’s request for a medical accommodation, and Henry was then subjected to an internal affairs investigation. The district court dismissed both claims in Henry v. City of Allentown, finding that Henry had not shown that he suffered an “adverse employment action” by his superior officer, Chief Roger MacLean.
Henry began working as a police officer for the City of Allentown in 1998. Eventually, he started working in the police department’s K-9 unit, where he handled day-to-day operations and trained animals. Henry began having problems with Chief MacLean after one of the K-9 unit’s dogs was euthanized in December 2010. Soon after the dog’s passing, a local businessman donated a new dog to the police union. Henry initially took the dog home after he was unable to speak directly with the Chief about what to do with the dog. The Chief was unhappy with how the donation transpired, and opened an investigation into the matter. He later suspended Henry from several K-9 training sessions, eventually ordering him to give the dog to another officer. Henry was then reassigned to a new platoon and given steady night shifts, “purportedly because his presence might undermine the new dog’s obedience to his assigned officer.”
After he started working the night shifts, Henry’s health began to deteriorate and he started suffering from migraines, fatigue, delays in cognition and dexterity, weakness on his right side, high blood pressure, and disorientation. After consulting his doctor, Henry submitted his doctor’s recommendation to the Chief that he be reassigned to the day shift. The Chief then started complaining to other people about having to make the accommodation for Henry, questioning its validity. He finally granted Henry’s request two months later, but in the meantime, Henry was subject to another internal affairs investigation, which Henry believed was intended to harass him. Henry sued the City for discrimination and retaliation under the Rehabilitation Act.
The court explained that in order to show that he was retaliated against, Henry needed to demonstrate (1) he engaged in a protected activity; (2) his employer took adverse action against him either after or while Henry was engaged in the protected activity; and (3) a causal connection between the protected activity and the employer’s adverse action. The district court dismissed the retaliation claim “with prejudice” after determining that Henry had failed to show that the City had taken any “adverse action” against him:
The only alleged consequences that occurred contemporaneously with or subsequent to the request for medical accommodation are the chief’s derogatory comments, the later internal affairs investigation…and the chief’s disclosure to third parties of Plaintiff’s medical situation…Plaintiff has failed to allege any injury or harm based on Chief MacLean’s comments that “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
The court found that internal investigations generally do not constitute “adverse employment actions,” and disagreed with Henry’s argument that Chief MacLean’s sharing of his private medical information with third persons should be considered adverse employment action:
Plaintiff in the present case has not alleged any harm as a result of the extremely minimal and general disclosure of his medical issues. In fact, the disclosures he complains of seem to have involved Chief MacLean discussing Plaintiff’s accommodation request either with attorneys, as was inevitable, or with Plaintiff’s ex-girlfriend, who appears to have cooperated with Plaintiff in bringing this suit. These are not circumstances under which the disclosures constitute substantial, injury-causing, adverse action.
Editor’s Note (Jim Cline): A successful discrimination claim requires a legally sufficient “adverse action.” Normally, this requires some material harm to the employee and this court’s ruling that simply being subject to investigation is not sufficient to constitute an “adverse action,” is consistent with other case law. We recently discussed a Ninth Circuit ruling, holding that being placed on administrative leave could be deemed an “adverse action.” But, even that ruling seems to represent an outer boundary of where courts have gone on this question. Merely being investigated, while stressful for the officer, falls short of the material impacts created by administrative leave.
Officer Henry’s medical confidentiality claims might be actionable, but it doesn’t seem as if they were “pled” the right way. The court’s ruling that release of such information isn’t an “adverse action” seems sound, but it seems that Henry could have presented a possible violation of the ADA. The ADA restricts the release of employer held medical information, so any claim he would have for that should have been brought under that statute, rather than the retaliation section he cited.
