The fact that an employee is terminated as part of a reduction in force does not preclude an employee from prevailing in a disability discrimination case where he can show that he was chosen to be part of the reduction due to a disability. In Swiatek v. Bemis Company, Inc., 2013 U.S. App. LEXIS 21024 (3rd Cir. October 17, 2013), the Third Circuit Court of Appeals reinstated a jury verdict in favor of an employee. After the trial, the jury returned a verdict, finding in one of the employee’s favor on a perceived disability claim; however, the District Court granted a motion for judgment notwithstanding the verdict which the 3rd Circuit reversed.
In Swiatek, the Court held that the Plaintiff employee had proven a prima facie case of disability discrimination and that the reduction in force could have been a pretext for his termination because the facts supported a jury finding that the Plaintiff employee was perceived to be disabled and that he was discharged under circumstances that prove that the perceived disability was a determinative factor in the termination. The Court found that a reasonable jury could conclude that the plant manager perceived the employee as having a disability because of the employee’s persistent knee problems which immobilized the employee and caused him problems walking from his car to his office. As such, the Court found that the employer could have concluded that the employee was not fit to work at a plant in a job that involved physically taxing work and the denial of the use of a golf cart to travel in the plant and a request for use a closer parking space, as well as a suspect decision to terminate could show that the plant manager resented the employee because of his knee injury and wanted to terminate his employment as a consequence. The court also found that another manager’s comment in which he asked the Plaintiff “why he had so many medical problems when other, older, employees did not” was not an inadmissible stray remark by a non-decision maker because it was made by the second in command and was not temporally remote. and given the speaker’s position, could fairly be considered with other evidence to prove the alleged discrimination.
For more information on the Americans with Disabilities Act, Disability Discrimination and Abramson Employment Law see http://www.job-discrimination.com/lawyer-attorney-1126511.html