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Shellenberger v. Summit Bancorp Inc. is a case that illustrates how a retaliation claim can often be more powerful than the discrimination claim that preceded it. When the case went to trial, plaintiff Sally Shellenberger was pursuing two claims under the Americans with Disabilities Act — a discrimination claim and a retaliation claim. Her lawyer, Kimberly D. Borland, told the jury that Summit had refused to even consider accommodating her client’s hypersensitivity to chemicals by establishing a fragrance-free work environment or giving her an enclosed cubicle with a special air filtration device. And soon after Shellenberger complained to the EEOC, she was fired, Borland argued. The jury never deliberated, however, because the trial ended when U.S. District Judge Herbert J. Hutton of the Eastern District of Pennsylvania granted a directed verdict to Summit on both claims. Now the 3rd U.S. Circuit Court of Appeals has revived Shellenberger’s retaliation claim, finding that even if she couldn’t prove that she was disabled or entitled to an accommodation, the jury still had enough evidence to find that she was punished for complaining. The unanimous three-judge panel found that Hutton erred when he ruled that Shellenberger was unable to refute the company’s explanation that she was fired for insubordination. Borland argued that there were inconsistencies in Summit’s explanation about why Shellenberger was fired, and that a reasonable jury therefore could have found that she was fired because of retaliatory animus. Judge Theodore A. McKee agreed, saying “there is clearly enough here to allow that decision to be made by a jury.” Shellenberger was hired by Summit in January 1997 as a customer service representative at the company’s call center in Bethlehem, Pa. Nine months later, she started complaining to management that she was experiencing adverse physical reactions to fragrances in the work environment that gave her nausea and allergy-like symptoms. Over the next few months, Shellenberger complained repeatedly to her manager, Jane Fungard, who allowed Shellenberger to change seats several times in order to get away from workers whose cosmetics were triggering her symptoms. But when Shellenberger also asked permission to “sniff” new employees who might be stationed next to her, Fungard denied the request. Shellenberger also told another supervisor not to approach her because of a fragrance she was wearing, and the woman complied and called Shellenberger on the phone to discuss business matters rather than discuss them with her in person. A doctor later diagnosed Shellenberger as suffering from toxic encephalopathy — a condition that is also known as Toxicant Induced Loss of Tolerance (TILT), Multiple Chemical Sensitivity (MCS) or Environmental Illness. Shellenberger claims that her doctor sent letters to Summit that described her condition and requested an accommodation, but that company management responded by forwarding the letters to lawyers who were unable to reach any agreement with her doctor. In January 1998, Shellenberger began communicating with the EEOC about her work conditions, and she filed an EEOC complaint against Summit in July of that year. Less than one month after Summit was served with notice of the complaint, Shellenberger claims she met with Fungard and other supervisors to discuss possible accommodations. But Shellenberger claims that when she asked about the possibility of Summit adopting a perfume-free policy in the workplace or giving her an enclosed cubicle with a special air filtration device, Fungard responded: “I know that you’re taking the legal route, so you probably just want to consider — just continue in that vein.” According to Shellenberger, all discussion of possible accommodations stopped after that comment, and the meeting ended. Summit’s account of the meeting is different. Supervisors testified that Shellenberger was insubordinate, accused Summit of “poisoning” her, and that she framed her request for accommodations as an ultimatum rather than an inquiry or request. Less than two weeks later, Shellenberger was told she was being fired. According to Shellenberger, the human resources manager told her “we can’t get along with you or we — we just can’t work out our relationship with you.” When Shellenberger asked if her termination had anything to do with her ability to get along with co-workers, she says the manager insisted it did not. And when Shellenberger asked if she was being terminated due to her disability, she claims the manager responded: “According to the bank’s attorneys, you do not have a disability.” Hutton found that Shellenberger did not have enough evidence to go to the jury on her retaliation claim because she had not shown a “causal link” between her protected activity and her termination. Hutton found there was no evidence that Summit or Fungard ever received notice of the EEOC complaint; that Fungard’s statement about “taking the legal route” was never confirmed as referring to Shellenberger’s filing of the EEOC complaint; and that there was no evidence that Fungard was a decisionmaker in Shellenberger’s termination. The 3rd Circuit disagreed, saying that while Shellenberger may have fallen short on proving that she suffered from a true disability, she had sufficient evidence of retaliation. McKee found that Fungard’s remark — and its timing — was enough evidence for a jury to find that Shellenberger was a victim of retaliation. “Fungard’s statement clearly evinces an awareness that Shellenberger had started legal action against Summit, and a jury could easily conclude that the remark referred to the EEOC complaint,” McKee wrote in an opinion joined by 3rd Circuit Judge Walter K. Stapleton and visiting 9th Circuit Judge J. Clifford Wallace. McKee said there was also evidence that Fungard “was involved in the decision to terminate Shellenberger” because she was present when the firing occurred. As a result, McKee found that Hutton erred in finding that there was “no evidence that Ms. Fungard was a decision maker in plaintiff’s termination.” Summit’s lawyer, Gary W. Flanagan of Edwards & Angell in Providence, R.I., argued that the mere fact that Shellenberger’s termination occurred 10 days after Fungard’s alleged comment about “taking the legal route” was not enough by itself to create a causal link between engaging in the protected activity and the termination. McKee disagreed, saying the jury should have decided that issue since “there is more than temporal proximity here.” Flanagan also argued that Summit had solid proof that Shellenberger was fired for insubordination because Shellenberger herself had speculated in a letter to her doctor that Summit fired her because the company was “pissed off” that she had raised her voice to Fungard during the September meeting. But Borland argued that there were inconsistencies in Summit’s explanation, quoting the manager who told Shellenberger that “according to the bank’s attorneys, you do not have a disability.” McKee found that the jury should have been allowed to decide whether Shellenberger had proven that the company’s explanation was a pretext. The manager’s “choice of words,” McKee said, “could reasonably be viewed as proof that Summit no longer wanted to be bothered with persistent requests for ‘baseless’ accommodations, and that it was upset that Shellenberger had filed an EEOC complaint against it.” As a result, McKee concluded that “a reasonable jury could conclude that she was fired in retaliation for her protected activity rather than (or in addition to) her insubordinate behavior.”

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