ADA Disability Discrimination: Employee Who Requests Reasonable Accommodation & is Terminated has ADA & Age Discrimination Claims

While it is often difficult for an employee only employed for a brief period of time to proceed with an employment discrimination claim, under certain circumstances, particularly where the claim centers around a perceived disability, it may be possible as illustrated in Palish v. K&K RX Services, L.P (E. D. Pa. June 13, 2014), 2014 U.S. Dist. LEXIS 80606 Sitarski M. J.), where the Plaintiff employee filed claims under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). The Plaintiff, a licensed Pharmacist, 53 years of age with more than 25 years of pharmaceutical experience, suffered from Spondylolisthesis, Degenerative Disc Disease, and Retrolisthesis, all of which affect the vertebrae of his back, previously requiring spinal fusion surgery. The employee contended that back pain still results in certain limitations in his ability to do work-related activities, namely his ability to stand.

In Palish, the employee was a Pharmacy Manager, supervising employees, ensuring that all prescriptions were accurately filled, providing information on medications and their proper indications and maintaining records. On his first day of work, he informed his manager of his back issues and asked that he be allowed to sit occasionally. Defendants told Plaintiff they could not provide him with a stool or let him sit because they would have to allow other employees to sit. During his 15 days of employment Plaintiff testified that he was able to do his job, albeit with pain. According to Defendants, there were several issues with Plaintiff’s job performance. Defendants ultimately decided to put together an action plan for Plaintiff to use as a guide to improve his performance to meet the requirements that Defendants wanted, setting forth deadlines for Plaintiff to improve in specific subject areas, such as product knowledge, the work flow system and how to order inventory. However, only a few days late, the decision was made to terminate Plaintiff’s employment. When Plaintiff was notified that he was being terminated, his supervisor stated “you’re just not — you’re not a good fit. But it’s not your fault. It’s my fault. I should have hired somebody younger and more energetic.” Defendants then hired a 31-year-old to replace Plaintiff. The Court found that the Plaintiff could proceed to trial with claims for disability discrimination, retaliation for requesting a reasonable accommodation and age discrimination.

A prima facie case of disability discrimination requires that the employee show that: the employee is disabled within the meaning of the ADA; is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodation by the employer; and was subject to some adverse action as a result of his disability. Even if an employee cannot show he was disabled within the meaning of the ADA, the “disabled” requirement can be met by showing that the employee was “regarded as” disabled, where the question is not the actual condition, but rather how the condition was perceived by his employer, including the reactions and perceptions of the persons interacting or working with him; so that an employee may establish a genuine issue of fact for “regarded as” disability by showing that a decision maker knew of the impairment.

In Palish, it was undisputed that Plaintiff’s supervisor, who was involved in the decision to terminate him, was aware of Plaintiff’s back pain and the fact he had spinal fusion surgery, which the court held provided a basis to establish that he was “regarded as” disabled. While the Defendants contended that Plaintiff did not possess certain subjective qualifications for the job, the court held that the objective evidence, that Plaintiff has over 25 years experience as a pharmacist, a Doctorate of Pharmacy degree, and had previously held a position supervising at least one individual, created a genuine issue of material fact that would allow a reasonable juror to conclude that he was sufficiently qualified for the job from which he was terminated.

In considering the ADA retaliation claim, a prima facie case of retaliation requires an employee to show: (1) engagement in a protected activity; (2) an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link between the adverse action and the protected activity. In Palish, the court held that the Plaintiff could establish a prima facie case because he requested a reasonable accommodation which constitutes protected activity, the employee suffered an adverse action when he was terminated, and the temporal proximity (two weeks) between his protected activity and his termination is sufficient to establish the requisite causal link. The Court also held that Defendants proffered a legitimate non-discriminatory reason for terminating Plaintiff’s employment, numerous alleged performance issues during his 15 days of employment. Thus, the burden shifted to plaintiff to show that the defendants’ proffered reason is pretextual by submitting evidence sufficient for a fact finder to either (1) disbelieve the employer’s articulated legitimate reason; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In finding pretext in Palish the court held that there was evidence that a similarly situated individual who was not disabled and did not request an accommodation was treated differently where the other employee had the same supervisor, held the same position as Plaintiff (Pharmacy Manager), had the same duties, did not request an accommodation and was also confronted at the onset of her employment because the same supervisor was also not satisfied with her managerial skills, the primary reason for terminating Plaintiff. The court held that the similarly situated employee was treated more favorably because she was not terminated within two weeks of requesting a reasonable accommodation, and was instead given an opportunity to improve performance, which would allow a reasonable fact finder to conclude that Defendants’ proffered reason for termination Plaintiff was pretextual.

As to the age discrimination claim, to establish a prima facie case of age discrimination, an employee must present evidence that (1) the employee was 40 years of age or older, (2) was subject to an adverse employment action such as termination (3) was qualified for the job from which he was terminated, (4) and was replaced by a substantially younger employee. In Palish, the court found that since Plaintiff’s supervisor directly referenced age as a reason for terminating Plaintiff, and then actually replaced Plaintiff with somebody over 20 years younger, a reasonable juror could conclude that age discrimination was a “but for” cause of Plaintiff’s termination.

In Palish, the court did grant summary judgment on one ADA claim, finding that the Plaintiff could not proceed to trial with his failure to accommodate claim finding that there is no evidence in the record that would allow a reasonable juror to conclude that Plaintiff’s back pain substantially limits him in a major life activity.

For more information on the Americans with Disabilities Act, disability Discrimination, age discrimination and Abramson Employment Law, see,


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Filed under Age Discrimination, Americans with Disabilities Act - Disability Discrimination, Retaliation

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