Harassment for Covid Mask Request Gets Review in Fifth Circuit

The Equal Employment Opportunity Commission will try to revive its lawsuit accusing a Texas pharmacy of disciplining, humiliating, and threatening an asthmatic worker for seeking to wear a mask at the start of the Covid-19 pandemic.

The EEOC is set to appear at oral argument Wednesday at the US Court of Appeals for the Fifth Circuit to challenge a lower court’s ruling that the former US Drug Mart Inc. worker experienced an isolated incident of verbal harassment that didn’t amount to a hostile work environment under the Americans with Disabilities Act.

The case gives the appeals court an opportunity to clarify what sort of employer conduct gives rise to a legitimate claim of a hostile work environment.

Almost all circuit courts have said hostile work environment claims are available for disability-related bias and follow the same legal standard as those brought under Title VII of the 1964 Civil Rights Act, said Nicole Buonocore Porter, a disability law scholar who directs the Martin H. Malin Institute for Law & the Workplace at Chicago-Kent College of Law.

The federal judge who threw out the EEOC’s lawsuit against US Drug Mart cited both ADA and Title VII cases.

The alleged facts leading to the agency’s 2021 complaint also highlight how the threat of Covid—and efforts to protect against the virus—can and did sow division in the workplace.

The EEOC alleged that US Drug Mart management responded to pharmacy technician trainee David Calzada’s March 2020 request to wear a mask as an accommodation for his asthma with a series of hostile acts. They included sending him home rather than let him work with a mask on, threatening to fire him, and peppering him with demeaning insults until he felt he had no choice but to resign, the agency said.

But US Drug Mart told the district court that the agency’s entire case was built on one recorded conversation between Calzada and two supervisors. Although a supervisor insulted Calzada and threatened to fire him, the transcript shows that the supervisor was responding to the worker’s insubordination and poor attitude, not his disability or accommodation request, the company said.

Single Interaction

In his 2022 ruling, US District Judge Frank Montalvo, a George W. Bush appointee, focused on that single interaction between Calzada and the two supervisors.

Although a jury could find that the incident was severe enough for a hostile work environment claim, it wasn’t enough to meet the Fifth Circuit’s high standard, the judge held. The Fifth Circuit hasn’t upheld such a claim based on one instance of verbal harassment, except in the context of extraordinarily offensive racial slurs, Montalvo said.

“COVID-19 raised extreme and unusual challenges, and pandemic-era harassment against frontline healthcare workers, like Mr. Calzada, should be viewed in that context,” he said. “But the court cannot escape the conclusion that, as a matter of law, the harassment here was not sufficiently severe to support Plaintiff’s hostile work environment claim.”

The EEOC will make its case to a Fifth Circuit panel of three judges installed by Republican presidents: Kurt Engelhardt and Cory Wilson, both Trump appointees; and Leslie Southwick, a George W. Bush appointee.

“Calzada sought to take basic precautionary steps to protect himself from COVID exposure because his disability gave him heightened susceptibility to the potentially fatal disease,” the EEOC said in its appellate brief. “In response, his supervisors accused him of showing a ‘complete lack of respect,’ told him he was ‘acting like a little kid,’ called him ‘stupid as [he] can be,’ taunted him for fear of the disease, and threatened him with termination, bringing him to tears.”

That verbal attack was the culmination of a series of harassing incidents over the courts of the preceding several days, the agency said.

But US Drug Mart said in its brief that the “single incident of yelling, criticism, and name-calling” didn’t rise to the extremely serious level necessary to create a hostile work environment. The Fifth Circuit has consistently thrown out such claims based on similar isolated conduct, the company said.

US Drug Mart’s lawyer, Cassie Dallas of Thompson, Coe, Cousins & Irons LLP, didn’t respond to requests for comment. The EEOC declined to comment.

The case is EEOC v. U.S. Drug Mart, Inc., 5th Cir., No. 23-50075, oral argument scheduled 11/8/23.