New Fifth Circuit Disability Harassment Case Again Emphasizes The Importance Of Complying With An Employer’s Complaint Policies And Procedures

In Patton v. Jacobs Eng’g Group, Inc., ____F.3d ____, No. 16-30879, 2017 WL 4784586 (5th Cir. Oct. 24, 2017) the Fifth Circuit again emphasized the importance of employer complaint policies and procedures, and demonstrated the impact they can have on the outcome of a harassment case when the plaintiff fails to comply with them.

Patton had childhood onset fluency disorder, which caused him to stutter and have anxiety. Coworkers and even his supervisor relentlessly mocked him over his stuttering – calling him names and imitating him in insulting ways. Noise made his condition worse. His workplace was noisy, and he asked to be moved to a less noisy area, which he said would reduce his stuttering and anxiety. The Company did nothing, and the resulting stress from the harassment and the noise caused Patton to have a panic attack while driving, resulting in a car wreck that he never returned to work from. Instead, Patton sued Jacobs for harassing him because of disability. The district court dismissed his case on summary judgment, and the Fifth Circuit affirmed.

Many harassment cases are thrown out because the alleged harassment is not severe or pervasive – meaning it is not bad enough to be illegal. But, here, the Court found that the alleged harassment Patton suffered was severe or pervasive – meaning it was bad enough to actually be illegal. But, the Court agreed the claim was properly dismissed anyway because the district court determined that Patton failed to show that Jacobs did not take prompt, remedial action addressing the harassment, in that he unreasonably failed to follow Jacobs’ handbook’s instruction to report any such harassment to the Human Resources Department. Patton did not challenge the district court’s determination on that point on appeal, and thus he “forfeited his objection to this determination.” Thus, Patton’s case was thrown out and he obtained no recovery at all.

This case teaches that, while there are some narrow exceptions, in most circumstances, if the employee fails to follow their employer’s complaint policies and procedures for reporting harassment, they will be unsuccessful suing for harassment in court, even if they really did suffer severe or pervasive harassment.

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