Fifth Circuit Reverses Summary Judgment

Originally published by Thomas J. Crane.

Many veterans have returned from the two wars with some degree of PTSD. I myself have some low level PTSD in limited situations. But, that does not mean we cannot perform our jobs. In Alviar v. Macy’s Inc., No. 17-1130 (5th Cir. 8/15/2019), the Fifth Circuit reversed an award of summary judgment. Plaintiff Alviar served three tours in Iraq and Afghanistan as an Infantryman. At Macy’s, he was assigned a new boss, John Lillard. Mr. Lillard spoke with the employee about his lack of emotion. The Asset Protection Manager explained that his medication for PTSD resulted in a lack of visible emotion. After that conversation, Mr. Lilliard asked Mr. Alviar if he could handle the store in Irving. He asked Mr. Alviar five times whether he was able to handle the demands of the Irving store. Mr. Alviar testified that his relationship with Mr. Lillard took a bad turn after he disclosed his PTSD diagnosis.

Those comments by the District Manger of Asset Protection should have been enough to prevent summary judgment. Yet, the Northern District of Texas granted the employer’s motion for summary judgment. On appeal, Macy’s said the employee was fired because his performance was deficient. The appellate court noted the comments by Mr.Lillard might qualify as direct evidence of discriminatory bias. But, noting the final decision was made at higher levels than Mr. Lillard, the Court found that under the burden shifting frame work, the plaintiff met his burden.

The Fifth Circuit panel found the remarks by Mr. Lillard were sufficient basis on which a jury could infer the District Asset Protection Manager was biased against persons with PTSD. One of his questions to the former soldier was whether with his “medical disability,” he could “even handle” the Irving store. The evidence showed that Lillard was the central source of information for the higher level managers who decided to terminate Mr. Alviar. Mr. Lillard was involved in the decision to terminate Alviar throughout the process. A reasonable jury could conclude that Lillard’s concern about Mr. Alviar’s PTSD was a leading basis for the termination. See the decision here.

It is unfortunate that folks still stereotype veterans with PTSD. Those employers are losing some wonderful talent.

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