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Third Circuit Refuses Sanctions against Employee Caught Behaving Incompatibly with ADA Accommodation Request

    Client Alerts
  • February 15, 2008

Employers sometimes believe that employees request disability-related accommodations more to achieve personal preferences at work rather than to deal with an actual medical problem.  In Weisberg v. Riverside Township Board of Education, the Third Circuit Court of Appeals affirmed a district court holding that an employee was not “disabled” under the Americans with Disabilities Act, but denied the employer’s request for attorneys’ fees and sanctions.  In 1998, the plaintiff suffered an injury while at work when a large wooden speaker fell and struck him in the head.  The injury caused post-concussion syndrome, which the plaintiff claimed left him fatigued and impaired his concentration, memory, and other mental functions.  The plaintiff asked his employer for a number of accommodations, including a noise-free area, a 40-hour work week, and no attendance at after school events, such as basketball games and school dances, due to his sensitivity to loud noises.  A dispute over these accommodations arose and the plaintiff filed suit under the ADA.


Despite the plaintiff’s alleged fatigue and sensitivity to loud noises, evidence at trial indicated that he and his wife ate out roughly three nights a week and that he also attended Atlantic City casinos.  Additionally, the plaintiff was videotaped by a private investigator attending a New York Giants football game where he tailgated in the parking lot, stayed for the entire game, exited after midnight, and returned home around 2 a.m.  When asked in his deposition about that evening, the plaintiff stated that he watched the Giants game at home alone and because of his disability, he could not have attended the game.  At trial, however, the plaintiff was shown the surveillance video and attributed his prior testimony to his false memory syndrome.


The district court held that the plaintiff failed to show that he was disabled under the ADA as he was not substantially limited in any major life activity.  The court, however, denied Riverside’s request for attorneys’ fees and sanctions, finding that the lawsuit was not frivolous, unreasonable, or without foundation.  Riverside appealed the denial of its request for attorneys’ fees and sanctions.


The Third Circuit Court of Appeals affirmed the lower court’s denial, holding that although the evidence was inadequate to establish a disability, the plaintiff likely suffered from some sort of medical condition affecting his concentration, vision, mood, and energy, and therefore, his claim was not wholly without foundation.  The court noted that while the plaintiff’s excuse strained credulity, there was no compelling reason to disturb the district court’s discretion not to impose sanctions.