42 U.S.C. § 12203(a) prohibits retaliation against an individual opposing any act or practice that violate the ADA or because the individual made a charge, testified, assisted, or participated in any manner an investigation, proceeding or hearing. Over the last few weeks, I have come across a few cases in the retaliation area that deserve mentioning. In the first, the Southern District of Texas found that retaliation can include a subsequent employer retaliating against a prospective employee for actions that occurred in a prior employment. Shepherd v. Goodwill Industries of South Texas, Inc. 827 F. Supp. 2d 569 (S.D. Texas 2011). In this case, the plaintiff had worked for the South Texas lighthouse for the Blind based at the Corpus Christi Naval Air Station. The plaintiff alleged that after a period of harassment and discrimination at the hands of her supervisors she was terminated 23 days after starting. The plaintiff contended that she became so sick and stressed that she passed out and lost consciousness. When she regained consciousness, her supervisor told her to go home. When she walked to her car, she found herself surrounded by military police with their guns drawn. They ordered her to put up her hands saying that her supervisors had reported she made a terrorist threat and then the military police scraped off the plaintiff’s decals from her car. She then filed an EEOC charge against both supervisors (a reading of the opinion, suggests that this claim was ultimately settled). A year later, the plaintiff received an email regarding a position of Junior Editor by her job for defendant Goodwill. That job was also based at the Naval Air Station at Corpus Christi. It turns out that the job was basically the same as what she had done before because her prior job had subsequently been outsourced to Goodwill Industries. Also, it turns out that one of her supervisors was now working for Goodwill Industries. Plaintiff filled out the application, but she did not answer the required question of whether she’d ever been terminated from employment position and when asked about the missing information wrote on her application, “unable to disclose per legal agreement.” She also did not indicate either the date of her prior employment as an editor for the military or her reason for leaving that position.*
*I have been thinking for some time that applying the traditional principles of legal writing whereby you cite any time it is not your idea is not something that comes off the best in a blog. I would love to hear the reader’s views on this to see if my guess is correct. Accordingly, I am going to experiment with just citing at the end of a paragraph, especially when it comes to the recitation of facts, and see how that goes. I do believe that citing is important, but in the context of the blog, classic citing is probably overkill (I have not seen other blogs such as the ones on my blogroll, do it).
For the preceding paragraph the recitation of the facts can be found at Shepherd v. Goodwill Industries of South Texas, Inc. 872 F. Supp. 2d 569, 571-573 (S.D. Texas 2011).
Nevertheless, she was invited to come in and test for the position. However, the testing became a bit of a mess because Goodwill Industries did not have the equipment and software necessary for a blind individual like the plaintiff to effectively take the test. Nevertheless, she used the fallback option of using software built into Microsoft to take the test. That option was nowhere near optimum for her to be able to take the test effectively. The second thing that went wrong was that when the person taking the plaintiff’s employment application mentioned to the manager they had another person interested in the Junior Editor job, that manager contacted the plaintiff’s former supervisor, who now worked as a project manager for Goodwill, and asked her if the plaintiff had previously worked at the Corpus Christi naval base. Her former supervisor said she had worked at the military base and that she had problems with the military police resulting in her base security pass being taken away, her decals being stripped from her vehicle, and the plaintiff being escorted off the base. Based on these comments, the plaintiff was rejected from the job at Goodwill, and the lawsuit followed.
The information for the preceding paragraph may be found at Id. at 572-573.
The court held that a question of fact existed as to whether the plaintiff was qualified to perform the job of Junior Editor for Goodwill in light of the fact that she may not have been reasonably accommodated during the testing process. Id. at 576. With respect to retaliation, the court said her former supervisor’s involvement in the hiring decision was sufficient to raise a fact issue as to motive and causation on the part of Goodwill not hiring her for the job. Id. at 579.
Preventive tips: The first preventive tip is rather obvious I suppose. That is, if a person has to go through testing to apply for a job, make sure that the testing process is set up in such a way so that an individual with a disability is reasonably accommodated. Again, the whole purpose of reasonable accommodations is to get the person with a disability to the same starting line as the person without a disability. Second, whenever a law firm takes on a new client, they have to do a conflict check. The lesson to take from this case is that when a company is looking to hire an employee and something negative comes up with respect to people influencing that process in terms of how that applicant is being perceived or rated, it would behoove the company to make sure that none of the evaluating personnel has a conflict of interest, i.e. a prior existing relationship with that individual. If so, the person with the conflict of interest should be removed from the process.
The second case comes out of the Fifth Circuit. In this case, the plaintiff was an operator for Jacobs Field Services North America, a company performing general construction and construction-related services, industrial maintenance, and plant operations for chemical refining companies throughout the Gulf Coast region. The job of an operator meant working on the high-speed gallon line most often. The job duties involved climbing, balancing, stooping, kneeling, pulling, pushing, lifting, grasping, and using tools. In the year leading up to his termination, the plaintiff experienced numerous health problems including carpal tunnel syndrome, neck pain, back pain and weakness in the legs thereby making it not possible for him to perform his job. After an extended sick leave, the plaintiff tried to return to work with a limited duty release but the superintendent informed the plaintiff that no limited or light duty work was available at that time and that he could not return to work until he obtained a full medical release. The plaintiff after receiving this notification return to the plan and attempted to enter the plant but since his badge had been deactivated he could not enter. Instead, he followed another vehicle into the plant (the plaintiff knew that such a practice was against company policy). A subsequent meeting between the plaintiff and two employees of the defendant led to the plaintiff being terminated for violating this company policy. He filed suit alleging discrimination based on the ADA as well as retaliation.
You’ll find the recitation of the facts in this case, which was not selected for publication in the federal reporter, at Hammond v. Jacobs Field Services 2012 WL 6033078 (5th Cir., December 5, 2012).
The court found that due to the nature of the operator position and the plaintiff’s disabilities, the plaintiff was not qualified for his position because he could not do the essential functions of the job with or without reasonable accommodations and granted summary judgment to the defendant. Id. at *3. However, retaliation matter was a completely different story. First, the plaintiff engaged in protected activity when he requested accommodation for a disability shortly before being terminated. Id. at *5. Second, while it is true that the plaintiff followed a car into the plant, the evidence was such that such a practice was not unusual and the company frequently looked the other way. Id. Accordingly, the court reversed the grant of summary judgment with respect to the ADA retaliation claim and remanded it for further proceedings. Id.
Preventive tips: In this situation, the employer moved a bit too fast. That is, they should’ve let the normal process of what happened with respect to a person who is unable to perform the essential functions of the job with or without reasonable accommodations pursue its course, rather than terminating the individual for violation of a policy that oftentimes did not result in termination. Also, this case means that just because a person may lose a disability discrimination claim on the ground that he is not otherwise qualified, doesn’t mean that such a person will also lose a retaliation claim. In short, an employer should be wary of doing things that may give the plaintiff an avenue to pursue a retaliation claim, and particularly where that plaintiff would not be otherwise qualified.
Our final case comes out in the Middle District of Tennessee, Coffman v. Robert J Young Company, Inc., 871 F. Supp. 2d 703 (M.D. Tenn. 2012).. In this situation, the plaintiff worked as a copy center operator at an engineering firm for 10 years. As part of her job, she provided customer service, made copies, and assisted with the repair of machines, kept machines stocked with toner and paper, made booklets, printed documents and scanned documents. Plaintiff was in an off-duty motorcycle accident, which led to surgery and physical therapy. She also took FMLA leave. While on leave, her position was covered by other employees of the defendant. In July 2009, she informed the defendant that she was only able to use one hand and one arm at that time (she had been giving the defendant regular notes after a medical status and complying with the defendant’s policies are providing medical documentation). The defendant offered her a sedentary job, but the plaintiff declined it because she did not feel physically or mentally capable of performing that job. On October 28 of 2009, the plaintiff provided defendant a note saying that she was going to be able to return to work on November 23 with minimal restrictions of no lifting of more than 10 pounds, limited overhead and limited pushing/pulling. Nevertheless, the human resources director and the General Counsel decided to terminate plaintiff anyway.Prior to that termination, the human resources director and the General Counsel proceeded to the termination: 1) without discussing with the plaintiff her impairment or condition or her intention to return to work on November 23, 2009; 2) without discussing with the plaintiff for conducting an interactive process with the plaintiff to determine whether any of plaintiff’s job functions could be accommodated; 3) by not requesting additional information from the health care provider or by consulting an occupational physician to determine whether plaintiff would be open to perform her job duties; and 4) by not considering the offering of additional leave from October 28, 2009 to November 23, 2009 as a reasonable accommodation. As if that wasn’t bad enough, the termination letter the plaintiff received said, “given that you are unable to perform the task of your job, we have found it necessary to hire someone to fill the vacancy created by your need to take long-term disability and due to your long-term disability we must terminate your employment.” It just gets worse from there for the defendant. In particular, the plaintiff’s job as a copy center operator did not categorize it duties into essential and nonessential functions. In fact, the human resources director was unaware that breaking down job functions into essential and nonessential functions was critical to deciding how to accommodate a person with a disability. Further, the HR director acknowledged that the jobs lifting requirements could have been modified and that allowing the plaintiff to remain employed until November 23, 2009 would not have resulted in an undue hardship.
The recitation of the facts in the preceding paragraph can be found at Id. at 708-709.
In light of all thie above the court found that the letter constituted direct evidence of discrimination, and a reasonable jury could find that the defendant decision to terminate the plaintiff was motivated, at least in part by her disability. Id. at 714-715. The court also found that the termination letter was evidence of retaliation as well and granted the plaintiff’s motion for summary judgment on the retaliation claim. Id. at 718.
Preventive tips: 1) this case in so many ways is a recipe for what not to do. First, prior to termination, there should be an interactive process discussing the employee’s medical condition as well as for figuring out whether the employee can perform the essential functions of the job with or without reasonable accommodations; 2) the employer should request additional medical information and/or consult an occupational physician, therapist or other experts in order to determine whether the employee can perform the essential functions of the position with or without reasonable accommodations; 3) the employer should consider offering the employee additional leave unless they can show that such an offering would be an undue hardship or is a situation where the plaintiff is asking for an indeterminate amount of leave. 4) the ADA is an extraordinarily complex law as well as extremely comprehensive, if people, attorneys or others, are not clear or comfortable with the law, they should not be afraid to get help (in fact, the ethical rules for attorneys generally demand that an attorney get assistance in such situations. Nevertheless, I am consistently surprised at how often mistakes seem to be made as a result of being unfamiliar with the ADA); and 5) a company needs to be sure that employees are continually trained by qualified people on the requirements of the ADA.