A federal appeals court has ruled that an employer waived any objection to a jury verdict resulting from a woman's argument that although she could not prove she was dyslexic, she was entitled to a workplace accommodation because she was “regarded as” such.

The U.S. Court of Appeals for the Third Circuit affirmed a Delaware federal jury's award of $22,500 in favor of plaintiff Tamra Robinson in her lawsuit against her employer, First State Community Action Agency.

According to Third Circuit Judge Julio Fuentes' opinion, “Robinson was told by her manager Karen Garrett that her work performance was so poor that 'you either don't know what you're doing, or you have a disability, or [you're] dyslexic.'”

“Taking Garrett's words seriously,” Fuentes continued. “Robinson, who had never before considered the possibility she might have a disability, decided to undergo testing for dyslexia. She sent Garrett an evaluation that concluded that Robinson had symptoms consistent with dyslexia, and requested certain accommodations from the manager of human resources. She was told that any diagnosis she received would not prevent her from performing her work in a satisfactory matter, and she was advised to focus on improving her performance. Weeks later, she was fired.”

After the lawsuit had commenced, Robinson acknowledged that she couldn't prove she was dyslexic, and instead argued that because she was perceived as such, she was entitled to reasonable workplace accommodations under the 2008 amendments to the Americans With Disabilities Act.

First State argued that the under the act a person “regarded as” disabled, but who fails to demonstrate that he or she is actually disabled, is not entitled to a reasonable accommodation, according to Fuentes. It also argued that the court's jury instruction that jurors needed only find that Robinson was regarded as disabled was erroneous.

The question, Fuentes said, was whether the Third Circuit should examine the error or treat the issue as waived, since First State did not object to the theory during trial.

“Despite the fact that Robinson discussed her position that she need only prove she was regarded as dyslexic as early as 2016, when she filed her motion for summary judgment, First State never addressed the effect of the 2008 amendments until its briefing before this court,” Fuentes said. “It contends that its failure to raise this argument is best understood as a failure to object to an erroneous jury instruction and should therefore be reviewed under our plain error standard. We disagree because, although First State focuses narrowly on how this error manifested in the jury instructions, it was more broadly a flaw in Robinson's theory of the case that dated back to summary judgment briefing, and First State at no time objected to that theory despite numerous opportunities to do so. Thus, we view the argument as waived, and we decline to consider it for the first time on appeal.”

Anthony Delcollo of Offit Kurman, Attorneys at Law in Wilmington represents Robinson and did not respond to a request for comment. Nor did First State's lawyer, Tasha Stevens of FWSS Law in Georgetown.