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Now, the 3rd US Circuit Court of Appeals has revived Shellenberger's retaliation claim, finding that even if she couldn't prove that she was disabled or entitled to an accommodation, the jury still had enough evidence to find that she was punished for complaining.

Shellenberger was hired by Summit in January 1997 as a customer service representative at the company's call center in Bethlehem, PA. Nine months later, she started complaining to management that she was experiencing adverse physical reactions to fragrances in the work environment that gave her nausea and allergy-like symptoms. Over the next few months, Shellenberger complained repeatedly to her manager, who allowed her to change seats several times in order to get away from workers whose cosmetics were triggering her symptoms.

But when Shellenberger also asked permission to 'sniff' new employees who might be stationed next to her, the manager denied the request. Shellenberger also told another supervisor not to approach her because of a fragrance she was wearing, and the woman complied, calling her on the phone rather than approaching her in person.

A doctor later diagnosed Shellenberger as suffering from toxic encephalopathy, a condition that is also known as Toxicant Induced Loss of Tolerance (TILT), Multiple Chemical Sensitivity (MCS), or Environmental Illness.

The plaintiff claims her doctor sent letters to Summit describing her condition and requesting an accommodation, but that management responded by forwarding the letters to lawyers who were unable to reach any agreement with her doctor.

In July 1998, Shellenberger filed an EEOC complaint against Summit. Less than 1 month after the company received the complaint, Shellenberger claims she met with her manager and others to discuss possible accommodations. No suitable accommodation was reached, and she claims that all discussion of possible accommodations ended. Summit's account states that in the meeting, Shellenberger was insubordinate, accused the company of 'poisoning' her, and that she framed her request for accommodations as an ultimatum rather than an inquiry or request. Less than 2 weeks later, Shellenberger was told she was being fired.

After examining the case, 3rd Circuit Court found that 'a reasonable jury could conclude that she was fired in retaliation for her protected activity rather than (or in addition to) her insubordinate behavior.'

Shannon P. Duffy is the US Courthouse Correspondent for The Legal Intelligencer.

Shellenberger v. Summit Bancorp Inc. is a case that illustrates how a retaliation claim can often be more powerful than the discrimination claim that preceded it. When the case went to trial, plaintiff Sally Shellenberger was pursuing two claims under the Americans with Disabilities Act ' a discrimination claim and a retaliation claim.

Shellenberger's lawyer, Kimberly D. Borland, told the jury that Summit had refused to even consider accommodating her client's hypersensitivity to chemicals by establishing a fragrance-free work environment or giving her an enclosed cubicle with a special air filtration device. And, Borland argued, soon after Shellenberger complained to the EEOC, she was fired.

The jury never deliberated, however, because the trial ended when US District Judge Herbert J. Hutton granted a directed verdict to Summit on both claims.

Now, the 3rd US Circuit Court of Appeals has revived Shellenberger's retaliation claim, finding that even if she couldn't prove that she was disabled or entitled to an accommodation, the jury still had enough evidence to find that she was punished for complaining.

Shellenberger was hired by Summit in January 1997 as a customer service representative at the company's call center in Bethlehem, PA. Nine months later, she started complaining to management that she was experiencing adverse physical reactions to fragrances in the work environment that gave her nausea and allergy-like symptoms. Over the next few months, Shellenberger complained repeatedly to her manager, who allowed her to change seats several times in order to get away from workers whose cosmetics were triggering her symptoms.

But when Shellenberger also asked permission to 'sniff' new employees who might be stationed next to her, the manager denied the request. Shellenberger also told another supervisor not to approach her because of a fragrance she was wearing, and the woman complied, calling her on the phone rather than approaching her in person.

A doctor later diagnosed Shellenberger as suffering from toxic encephalopathy, a condition that is also known as Toxicant Induced Loss of Tolerance (TILT), Multiple Chemical Sensitivity (MCS), or Environmental Illness.

The plaintiff claims her doctor sent letters to Summit describing her condition and requesting an accommodation, but that management responded by forwarding the letters to lawyers who were unable to reach any agreement with her doctor.

In July 1998, Shellenberger filed an EEOC complaint against Summit. Less than 1 month after the company received the complaint, Shellenberger claims she met with her manager and others to discuss possible accommodations. No suitable accommodation was reached, and she claims that all discussion of possible accommodations ended. Summit's account states that in the meeting, Shellenberger was insubordinate, accused the company of 'poisoning' her, and that she framed her request for accommodations as an ultimatum rather than an inquiry or request. Less than 2 weeks later, Shellenberger was told she was being fired.

After examining the case, 3rd Circuit Court found that 'a reasonable jury could conclude that she was fired in retaliation for her protected activity rather than (or in addition to) her insubordinate behavior.'

Shannon P. Duffy is the US Courthouse Correspondent for The Legal Intelligencer.