Jacobs v. N.C. Admin. Office of the Courts, 13–2212.

• Decision Date: 12 March 2015
• Docket Number: No. 13–2212.,13–2212.
• Citation: 780 F.3d 562
• Parties: Christina Lynn JACOBS, Plaintiff–Appellant, v. N.C. ADMINISTRATIVE OFFICE OF THE COURTS; Jan Kennedy, in her official capacity as New Hanover County Clerk of Superior Court, Defendants–Appellees, and Brenda Tucker, New Hanover County Clerk of Superior Court; Melissa Griffin; Debra Excell, Defendants. The National Disability Rights Network; National Alliance on Mental Illness North Carolina; The Bazelon Center for Mental Health Law; Mental Health America; National Alliance on Mental Illness, Amici Supporting Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

780 F.3d 562

Christina Lynn JACOBS, Plaintiff–Appellant,

v. N.C. ADMINISTRATIVE OFFICE OF THE COURTS; Jan Kennedy, in her official capacity as New Hanover County Clerk of Superior Court, Defendants–Appellees,andBrenda Tucker, New Hanover County Clerk of Superior Court; Melissa Griffin; Debra Excell, Defendants.The National Disability Rights Network; National Alliance on Mental Illness North Carolina; The Bazelon Center for Mental Health Law; Mental Health America; National Alliance on Mental Illness, Amici Supporting Appellant.

No. 13–2212.

United States Court of Appeals, Fourth Circuit.

Argued: Dec. 9, 2014.

Decided: March 12, 2015.

ARGUED:Vanessa Katherine Lucas, Edelstein & Payne, Raleigh, North Carolina, for Appellant. Kathryn Hicks Shields, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees.

ON BRIEF:Lisa Grafstein, Mercedes Restucha–Klem, Disability Rights North Carolina, Raleigh, North Carolina, for Appellant. Roy Cooper, North Carolina Attorney General, Grady L. Balentine, Jr., Special Deputy Attorney General, North Carolina Department of Justice, Raleigh, North Carolina, for Appellees. Brian East, Disability Rights Texas, Austin, Texas, for Amici Curiae.

Before KEENAN, FLOYD, and HARRIS, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Judge FLOYD wrote the opinion, in which Judge KEENAN and Judge HARRIS joined.

FLOYD, Circuit Judge.

Christina Jacobs worked as a deputy clerk at a courthouse in New Hanover County, North Carolina. Although she allegedly suffered from social anxiety disorder, her employer assigned her to provide customer service at the courthouse front counter. Believing that her mental illness hindered her ability to perform this inherently social task, Jacobs requested an accommodation—to be assigned to a role with less direct interpersonal interaction. Her employer waited three weeks without acting on her request and then terminated her.

Jacobs brought suit against her employer under the Americans with Disabilities Act (ADA). The district court granted summary judgment to the employer on all counts. Because the district court erred by resolving disputed facts in favor of the movant and for the reasons that follow, we reverse the grant of summary judgment in part and remand for trial.

I.

Christina Jacobs has suffered from mental illness since childhood.¹ At ten, Jacobs was diagnosed with severe situational performance anxiety. At twelve, she was hospitalized for several days after threatening harm to herself and others. During her hospitalization she was diagnosed with mood disorder and selective mutism, and prescribed antidepressants. At the age of 18, she received an additional diagnosis of social anxiety disorder for which she has been treated intermittently by several physicians.

Social anxiety disorder is characterized by a “marked and persistent fear of ... social or performance situations in which [a] person is exposed to unfamiliar people or to possible scrutiny by others.” Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 456 (4th ed.2000) [hereinafter DSM–IV ].² A person suffering from social anxiety disorder either “avoid[s]” the feared social or performance situations, or “endure[s them] with intense anxiety or distress.” Id. A person can only be diagnosed with social anxiety disorder when the “avoidance, anxious anticipation, or distress in the feared social or performance situation(s) interferes significantly with the person's normal routine, occupational ... functioning, or social activities or relationships....” Id. The American Psychiatric Association (APA) notes that social anxiety disordercan create a “vicious cycle of anticipatory anxiety leading to fearful cognition and anxiety ..., which leads to actual or perceived poor performance ..., which leads to embarrassment and increased anticipatory anxiety....” Id. at 451. “A job promotion to a position requiring public speaking may result in the emergence of [social anxiety disorder] in someone who previously never needed to speak in public.” Id. at 453.

In January 2009, Jacobs was hired by Brenda Tucker, the elected clerk of court, as an office assistant in the criminal division of the North Carolina Administrative Office of the Courts (AOC). As an office assistant, Jacobs's job duties included microfilming and filing. Less than a month after Jacobs started working, Tucker promoted her to the position of deputy clerk.³

At the time of Jacobs's employment, 30 total deputy clerks worked in the criminal division. Four or five of the deputy clerks provided customer service at the division's front counter. The remaining deputy clerks performed other filing and record-keeping tasks, many of which do not require face-to-face interaction with the public.⁴ AOC supervisors typically assigned the most junior deputy clerks to the front counter. However, all deputy clerks—regardless of assignment and seniority—had the same title and job description.

In March 2009, Jacobs began training to work at the front counter. She was assigned to work four days a week at the front counter and one day a week microfilming. Jacobs soon began to experience extreme stress, nervousness, and panic attacks while working at the front counter. She became particularly panicked when she was asked a question to which she did not immediately know the answer—a common occurrence when working behind the counter. She attributed these symptoms to her diagnosed social anxiety disorder.

On or about May 5, 2009, Jacobs went to a supervisor, Debra Excell, and told Excell that she had social anxiety disorder and was not feeling healthy while working at the front counter. Jacobs told Excell that she had received treatment (including medication) for mental health issues while in college, but that she was not currently under a doctor's care. Excell encouraged Jacobs to seek treatment from the doctor who had helped her in college. After her meeting with Excell, Jacobs went to a doctor and began receiving treatment for anxiety and depression.

Excell subsequently told Tucker about her conversation with Jacobs. Tucker took handwritten notes on Excell's oral account of her conversation with Jacobs, which included the phrases “too stressful,” “nerve issues,” “anxiety disorder,” and “might have to go back to [the doctor].” J.A. 823. Tucker's assistant placed the notes in Jacobs's personnel file.

During the course of her employment, Jacobs was never written up for any disciplinary infraction or performance issue. There are no notes in her personnel file indicating any problems with her performance. Yet the AOC now alleges, inter alia, that Jacobs was a slow worker, impermissibly disclosed information to members of the public, and had outbursts with coworkers and supervisors. The AOC has produced no documentary evidence (such as e-mails) corroborating these allegations.

On September 8, 2009, Jacobs sent an e-mail to her three immediate supervisors (Excell, Jan Kennedy, and Melissa Griffin) in which she disclosed her disability for a second time and requested an accommodation. Specifically, Jacobs requested that she be “trained to fill a different role in the Clerk's Office and perhaps work at the front counter only once a week.” J.A. 798. The next day, Jacobs followed up in person with Kennedy. Kennedy told Jacobs that only Tucker had the power to act on Jacobs's request and, because Tucker was currently on a three-week vacation, Jacobs would have to wait until Tucker returned. Soon after her meeting with Kennedy, Jacobs forwarded her e-mail request to Tucker.

While she was waiting for Tucker to return and address her accommodation request, Jacobs sought to use some accrued leave. Kennedy questioned Jacobs about why she wanted leave and denied her request. Jacobs's previous leave requests were not questioned and had always been approved.

Tucker alleges that while she was on vacation, she did not check her e-mail and asked to be called only in the event of an emergency. She allegedly received a call from her assistant, Alice Radewicz, informing her that Jacobs had been spotted sleeping at her desk. Tucker testified that this was the only call she received during her three-week absence.

Upon returning to the office on September 29, 2009, Tucker called Jacobs into her office for a meeting. Excell, Kennedy, and Griffin were already in Tucker's office when Jacobs arrived, where they had just concluded a meeting regarding Jacobs. Jacobs also saw a copy of her e-mail requesting an accommodation on Tucker's desk, annotated in someone's handwriting. Tucker later testified that she had written the notes on the e-mail printout. Jacobs assumed that the meeting was about her request for an accommodation and recorded the meeting on a small personal audio recorder.

Jacobs told Tucker that she had wanted to meet regarding “just what the e-mail said.” ⁵ J.A. 827. Tucker did not inquire as to what e-mail Jacobs was referring. Instead, she told Jacobs that she was being fired because she was not “getting it” and Tucker did not “have any place [that she could] use [Jacobs's] services.” Id. She did not mention Jacobs's alleged sleeping on the job. When Jacobs asked Tucker whether she was being fired “because of the e-mail,” Tucker responded that “it doesn't have anything to do with the e-mail.” Id.

After her termination, Jacobs timely filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC). During the EEOC investigation, Tucker denied that she knew of Jacobs's disability and that she had read the e-mail before deciding to terminate Jacobs. After Jacobs received a favorable determination from the EEOC, the Department of Justice issued a Right to Sue letter.

Jacobs then timely filed suit against the AOC and against Jan Kennedy (Tucker's successor) in her official capacity as clerk of court. Jacobs's amended complaint alleges five causes of action,⁶ three of...