Category Archives: Americans with Disabilities Act – Disability Discrimination

Pennsylvania School District Employee Forced to Resign has Age & Disability Discrimination Claims

When an employee “voluntary resigns”, an employee may still prevail in an employment discrimination claim based on age, disability, or other protected criteria. Some employers who have already made a decision to terminate an employee use a tactic where the employer calls an employee to a meeting and the employer states that we are going to terminate if you do not immediately resign. In such instances, when the underlying reason for the termination is protected by the law, courts can find that the “voluntary resignation” is a constructive discharge, which is in effect the same as the termination of employment. In Sorlini v. Wissahickon School District (E., D. Pa. no. 16-1837) (April 5, 2017) (Tucker, C. J.), the court denied the employer’s Motion to Dismiss, found that there was evidence to support a constructive discharge of employment and held that the employee could proceed with his age and disability discrimination claims.

In Sorlini, the employee was a 58-year-old building supervisor for a school district who suffered from heart and knee problems that affected his ability to walk or stand without pain for extended periods of time, which culminated in a heart attack and two knee surgeries. The employee took a significant amount of time off from work. The employee was terminated within 2-3 months after another employee informed him that she overheard the school principal, and a supervisor, discussing the need to terminate his employment due to his illness and numerous sick leaves. The principal met with the employee and expressed concern that he had allowed another employee’s boyfriend on school premises without authorization; the employee denied that he had any knowledge of the boyfriend being present. Prior to the principal’s meeting, the employee had never had his work performance questioned and he had no disciplinary history. The day after the principal’s meeting, the employee was called to a meeting with the employer’s human resources director, chief financial officer, and his supervisor and informed that if he did not resign immediately, he would be terminated for allowing the co-worker’s boyfriend on school premises and that he would not be eligible for disability pension benefits if he was terminated. The employee then signed a resignation letter during the meeting under the threat of immediate termination. The employee was replaced by an employee who was less than 40 years of age. The employee also alleged that there was a liberal practice of allowing individuals who were not school employees on school premises and two custodians, a secretary, and a teacher allowed individuals who were not school employees on the school premises, yet they were not disciplined.

In Sorlini, the employee filed a lawsuit against the school district alleging age discrimination in violation of the Age Discrimination in Employment (ADEA), disability discrimination in violate of the Americans with Disabilities Act (ADA) and violations of the Pennsylvania Human Relations Act (PHRA). The employee, alleged that the employer constructively discharged him because of his age and disabilities, and subsequently replaced him with a younger employee.

An employer’s Motion to Dismiss will be denied if the employee alleges a prima facie case of discrimination. To establish a prima facie case of age discrimination an employee must show: (1) the employee is older than 40; (2) the employee was qualified for the position; (3) the employee suffered an adverse employment action; and (4) the employee was replaced by a sufficiently younger person or some other evidence to support the inference of age discrimination.

In Sorlini, the employee was 58 years old, he was qualified for the job he performed for 7 years and he was subsequently replaced by a substantially younger person. Thus, the question centered around whether he suffered an adverse employment action despite the fact that he voluntarily resigned. When an employee voluntarily resigns, an adverse employment action exists if the employee was constructively discharged. A constructive discharge is established when a reasonable person in the employee’s position would have had no choice but to resign. When considering whether an employee was constructively discharged, courts look for indicia of coercion, such as threats of termination, suggestions to resign or retire, demotions or reductions in pay or benefits, alterations in job responsibilities, unfavorable performance evaluations, and false accusations of stealing or misconduct.

In Sorlini, the court found that the employee was constructively discharged because he alleged that he was subject to false accusations of misconduct and threats of discharge, he was falsely accused of letting unauthorized personnel on school premises and then told that he would be terminated for his misconduct if he did not resign. The court found that given the time constraint, the employee did not have the opportunity for due deliberation before making the decision to sign a resignation letter, thus, there was evidence that would raise a reasonable expectation of constructive discharge and the court found that the employee had sufficiently raised a claim of age discrimination to survive the motion to dismiss.

The ADA prohibits employers from discriminating against an individual with a disability in regard to termination or the terms, conditions, and privileges of employment. To establish a prima facie case under the ADA, an employee must show that he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations and the employ suffered an otherwise adverse employment decision as a result of discrimination based on a disability. An employee may be qualified to perform the essential functions of a job based on job experience. A discriminatory adverse employment decision due to a disability may be established by a constructive discharge.

In Sorlini, the court found that the employee qualified for protection under the ADA as he alleged several musculoskeletal and cardiovascular physical impairments that limit major life activities, including heart and knee problems that affected his prolonged ability to walk or stand without pain. The court also held that the employee was qualified for the position of bundling supervisor in that he had performed the job for 7 years. Further, as with the age discrimination claim, the court found that there was evidence that could support a constructive discharge of employment which raises the reasonable expectation that Plaintiff suffered a discriminatory adverse employment action due to his disability

Andrew Abramson is a Pennsylvania employment discrimination attorney who represents employees who have been discriminated against based on their age, a disability and other legally protected criteria. For more information on age discrimination see https://www.job-discrimination.com/age-discrimination.html; for more information on disability discrimination see our website at http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Pennsylvania Employee Denied Request to Work From Home Has ADA Disability Discrimination, Reasonable Accommodation & Retaliation Claims

Employers are required to provide reasonable accommodations to employees who are unable to perform certain work duties. Determining what constitutes a reasonable accommodation is highly fact intensive and requires consideration of a job’s essential requirements. In Slayton v. Sneaker Villa, Inc., E. D. Pa. no. 15-0074 (Goldberg, J.) (March 20, 2017), an employee filed an action under the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA), alleging that her employer unlawfully terminated her employment by discriminating based on her disability, failing to provide a reasonable accommodation, and retaliation against the employee for requesting a reasonable accommodation. The court denied the employer’s motion for summary judgment and held that the Plaintiff could proceed to a jury trial.

In Slayton, the employee was hired as a Corporate Recruiter; 80 days into her employment, the employee was seriously injured in an accident and hospitalized for 5 days, suffering fractures of multiple vertebrae in her neck and back, and a head injury. The employee was out of work for approximately 2 months and then requested the reasonable accommodation of working full-time from home for 4 weeks or until her physical therapy was complete and she was released back to full-time status without restrictions. The employee’s restrictions included no driving, lifting anything heavier than five pounds, no bending or walking, and no sitting or standing for long periods of time. The employer responded to the reasonable accommodation request by asserting that the restrictions prohibited the employee from meeting the job’s requirements and that the employer could not hold her job any longer. The employee then presented another request, to work part-time in the office 10-15 hours per week and the other 25-30 hours from home, noting that she could perform all of the essential functions of the duties with the exception of the job fairs. A dispute then arose as to whether the employee was told that she was terminated (as the employee contested), or if the employer never stated that the employee was terminated and instead was requested to provide a doctor’s note outlining her restrictions. Ultimately, the employer terminated the employee claiming that the employee needed to be in the office full-time, as the job required face-to-face interviews, traveling, attendance at job fairs and other responsibilities that the employee could not perform the job given her physical condition.

An employee may prove disability discrimination by indirect evidence through the McDonnell Douglas burden-shifting framework. First, the employee must establish a prima facie case by showing that the employee is disabled within the meaning of the ADA; the employee is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and the employee suffered an adverse employment decision as a result of discrimination. Thereafter, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment decision. Then the employee must show that the employer’s reason is pretextual by pointing to evidence from which a factfinder could reasonably either disbelieve the employer’s articulated legitimate reason; or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In Slayton, the employer argued that the employee could not meet the essential functions of the job which it alleged required physical presence in the office and the ability to travel. Whether a particular function is essential, is a factual determination that is made on a case by case basis. In assessing whether a given job function is essential, courts look at the employer’s judgment as to which functions are essential; job descriptions prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the consequences of not requiring the employee to perform the function; and the work experience of past and current employees who perform the same or similar jobs. An employer may be required to restructure a job by reallocating or redistributing nonessential, marginal job functions; however, the employer is not required to reallocate essential functions.

In Slayton, the court found that there was a genuine dispute of material fact as to whether physical presence in the office was an essential job function, in part based on the employee’s testimony that despite her requests to do so, she never actually traveled to any job fairs during her employment. The employee’s pretext evidence consisted of the employee contending that she was fired before the employer ever requesting a doctor’s note and someone else being offered the job before the employee was asked for a doctor note. The court held that a jury could find that the employer’s claim that the reason for termination, the inability to travel and/or be physically present in the office, was unworthy of credence because it had already decided to terminate the employee before meaningfully assessing her inability to perform those functions.

The ADA requires an employer to make reasonable accommodations to the known physical or mental limitations of an employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business. To establish that an employer breached its duty to provide a reasonable accommodation, an employee must demonstrate: (1) that the employee was disabled and the employer knew it; (2) the employee requested an accommodation or assistance; (3) the employer did not make a good faith effort to assist; and (4) the employee could have been reasonably accommodated. Once an accommodation is requested, the employer is required to engage in the interactive process during which the employer and employee identify the precise limitations resulting from the disability and the potential reasonable accommodations. Employers may meet their obligation in a number of ways, such as meeting with the employee who requests an accommodation, requesting information about the condition and what limitations the employee has, and offering and discuss available alternatives when a request is too burdensome. A failure to communicate, either by way of initiation or response, may be bad faith.

The term reasonable accommodation is expressly defined to include part-time or modified work schedules. In Slayton, the court held that the fact that the employee modified her request for a temporary accommodation to include working part-time in the office once she was denied the initial request to work from home, created a factual dispute as to whether the employer engaged in good faith as an employer cannot merely dismiss such a request out of hand and a factual question existed as to whether the requested accommodations were facially reasonable, particularly given the temporary nature of the accommodation request.

Andrew Abramson is a Pennsylvania employment law attorney who represents employees who have been discriminated against based on a disability and denied requests for reasonable accommodations. For more information on workplace accommodations and disability discrimination under the Americans with Disabilities Act and he Pennsylvania Human Relations Act see our website at http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Employee with Chrohn’s Disease has Disability Discrimination, Failure to Reasonably Accommodate & FMLA Claims

Employees who suffer from documented disabilities, require medical leave from work and who are terminated by employers, may have claims for disability discrimination under the American with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA); as well as claims under the Family and Medical Leave Act (FMLA).

In Knight v. Callebaut USA Service Company, E. D. Pa. no. 15-6450 (December 19, 2016, Hart, M. J.), the employee was a production supervisor at a cocoa and chocolate factory diagnosed with Chrohn’s disease. The employee was hospitalized twice after experiencing abdominal pain; received treatment for bowel obstructions; and experienced diarrhea multiple times every day. Due to flare ups of his medical condition, the employee needed brief periodic breaks from ten minutes to one hour from zero to three times per shift while he was working to allow him to vomit outside. The employee had conversations with the employer’s Human Resources Manager and Site Manager to let them know what was going on. After a second three-day hospitalization, the employee was advised that his employment was terminated for an alleged theft of time and not doing his job by being on the plant floor for extended times during his work hours. The employer did not discipline the employee or allow him to explain why he was outside of the facility before terminating his employment. The employee alleged that the employer terminated his employment because of his actual/perceived disabilities and/or in retaliation for requesting reasonable accommodations; and that the employer never properly advised the employee of his FMLA rights and discouraged him from applying for FMLA leave.

To establish a prima facie case of disability discrimination, an employee must show that: (1) the employee is disabled within the meaning of the ADA; (2) is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations; and (3) the employee suffered an adverse employment decision based on that disability. The burden then shifts to the employer to articulate a legitimate business reason for the termination of employment and then the employee must then demonstrate that the stated reason is merely a pretext for discrimination.

To satisfy the ADA’s definition of disability, an employee may demonstrate: (1) an actual mental or physical impairment that substantially limits one or more major life activities; (2) a record of such impairment; or (3) that the employer regarded the employee as having a disability.

To establish a failure to accommodate a disability under the ADA, an employee must prove: (1) the employee is disabled, (2) is otherwise qualified to perform essential functions of the job, with or without reasonable accommodations by the employer, and (3) the employer refused to provide a proposed reasonable accommodation, or failed to engage in an interactive process after the employee requested an available reasonable accommodation.

In Knight, the court held that the employer was at least aware of the employee’s health condition and there was disputed evidence that there was a request for some sort of leave of absence for medical treatment, which could constitute a reasonable accommodation under the ADA. Thus, there was sufficient evidence for the case to proceed to trial on the ADA request for reasonable accommodation claim. The court also concluded that the employee could demonstrate a prima facie case of disability discrimination since it was undisputed that the employee requested leave for medical treatment when admitted to the hospital. Further, given that the employee was terminated immediately after returning from a leave that occurred after he had to leave his shift for medical reasons, there was sufficient evidence to create a factual question of pretext, permitting the ADA disability discrimination claim to proceed to trial.

The FMLA provides that it is unlawful for any employer to interfere with, restrain, or deny the exercise of FMLA rights. To establish FMLA interference, an employee must demonstrate: (1) that the employee was entitled to benefits under the FMLA and (2) the employer denied FMLA benefits. An employee is not required to expressly invoke the FMLA; the employee must only provide notice of the request for leave and state a qualifying reason for the leave. A scheduled block of time for treatment and testing or intermittent leave is protected by the FMLA and an employer’s failure to advise an employee of FMLA rights can constitute an interference of the employee’s FMLA rights.

In Kline, the court held that the employee provided sufficient facts to support a FMLA interference claim in that he was deprived of the right to make informed decisions and to plan accordingly when structuring his leave because he was not advised of his rights to 12 weeks or intermittent periods of job protected leave.

In a FMLA retaliation claim, an employee must demonstrate that (1) the employee is protected under the FMLA, (2) the employee suffered an adverse employment action, and (3) the adverse action was causally related to the exercise of FMLA rights. Then the burden shifts to the employee to provide evidence of a legitimate reason for the adverse employment action. Once the employer sets forth a legitimate reason, the employee must point to some evidence that the employer’s reasons for the adverse action are pretextual.

In Kline, the court held that the employee’s need to take time off to treat his medical condition was both a request for accommodation under the ADA and a request for leave under the FMLA. In so doing, the court found that the fact that the employer classified the employee’s leave as FMLA is sufficient to set forth a prima facie case that FMLA rights had been invoked and that the termination of employment was clearly an adverse employment action. As to the casual connection requirement, the fact that employment was terminated immediately upon return from leave was sufficient evidence of causation; particularly combined with fact that the employee has no prior disciplinary history. Thus, the FMLA retaliation claim could also proceed to trial.

For more information on the Family and Medical Leave Act (FMLA), Disability Discrimination and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126523.html, job-discrimination.com/lawyer-attorney-1126511.htm, http://www.job-discrimination.com/lawyer-attorney-2122109.html

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Employee Terminated After Requesting Extended Leave Has Retaliation, Pregnancy, Sex & Disability Discrimination Claims

Employees who experience complications during pregnancy that require leave from work prior to the birth of a child may confront a situation where the employee has exhausted her right to Family and Medical Leave (FMLA), which is limited to 12 weeks furring any rolling 52-week period before the employee is medically cleared to return to work following the birth of a child. Depending on the facts, there may still be protection for employees who are terminated prior to their return to work under the Pregnancy Discrimination Act which is part of Title VII and the Pennsylvania Human Relations Act which forbid sex discrimination, and the Americans with Disabilities Act (ADA), as these laws may protect an employee’s right to be granted extended leave from work.

In Oliver v. Scranton Materials, Inc., M. D. Pa. no. 14-cv-00549 (June 14, 2016. Mariani, J.), the Court denied the employer’s motion for summary judgment and allowed the case to proceed to trial in a situation where the employee was notified following a period of maternity/disability leave that she would be permanently laid off. The employee alleged that she was discriminated on the basis of gender, pregnancy, and disability and that she suffered retaliation at the workplace. In Oliver, the employee claimed that she was subjected to a hostile and discriminatory work environment on the basis of sex and pregnancy, the employer retaliated against her by cutting her out of meetings, complaining of her need for pregnancy related leave, and asking her to accept a salary reduction due to her pregnancy and need for leave; retaliated against her based on her disability (complications with her pregnancy); and failed to accommodate her need for disability leave arising from the complications of pregnancy; and refused to allow her to return to work.

In Oliver, the employee worked in a sales capacity for the employer, a company that produced and sold decorative landscape stone and building stone for wholesale delivery. The employee became pregnant with triplets and experienced complications that required her to begin working half-days. Shortly thereafter, the employee began having problems with a part owner of the company who was her supervisor, who at one point said, “you’re not going to be able to work with those three f-ing babies at home.” The employee continued to receive her full salary for working half days until she went out on maternity disability leave. Six days after the employee had the triplets, her FMLA expired as she had used FMLA leave prior to the birth of her children as a consequence of her ability to work only half-days. The employee intended to return to work 8 weeks after the birth of her children but then requested an additional four weeks leave due to complications related to her pregnancy and associated surgery. Two days after her request, the employee was advised that her employment would be terminated. According to the employer, the employee was terminated in anticipation of the finalization of the sale of its business as well as the overall lack of business during the winter months, however, the employee disputed that there was a sale of the business and claimed the evidence showed that the business continued and did not cease operations.

Title VII provides that it shall be an unlawful employment practice for an employer… to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s… sex which includes discrimination on the basis of pregnancy, childbirth, or related medical conditions. To establish a prima facie case of pregnancy discrimination, an employee must establish that: (1) the employer knew of her pregnancy; (2) she was qualified for the position; (3) she suffered an adverse employment action; and (4) there is a causal nexus between her pregnancy and the adverse employment action. Once the employee presents sufficient evidence to establish a prima facie case, the burden shifts to the employer to articulate some “legitimate, nondiscriminatory reason” for the adverse employment action. Then the burden shifts back to the employee to set forth facts tending to show that the employers proffered legitimate non-discriminatory reason was merely a pretext for discrimination by pointing to some evidence from which a fact-finder could reasonably (1) disbelieve the employer’s articulated reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

In Oliver, the court found that the employee established a prima facie case because the supervisor made repeated comments to her concerning her pregnancy, prior to her pregnancy after the need to reduce her workload to half days and that the employer’s negative statements constitute sufficient evidence of discriminatory animus sufficient to established prima facie case of pregnancy discrimination. The court also found that the employer offered a legitimate nondiscriminatory reason, the sale of the business, however, the Court found that there was sufficient evidence of pretext by showing that according to the Pennsylvania Secretary of State’s Website, the employer did not in fact cease operations through a sale of the company’s business, rather, the employer merely changed its name and it continued to operate at the same location with the same telephone and fax numbers and website; and that there were jobs that the employee could have performed. The court also held that the conduct at issue could be found to be sufficiently severe and pervasive to constitute a hostile work environment relying on statements regarding the employee’s inability to work with three small babies at home and by looking at the totality of the circumstances.

Under the ADA, an employer may not discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. To state a prima facie claim of disability discrimination under the ADA, a plaintiff must establish that she: (1) has a disability, (2) is a qualified individual, and (3) has suffered an adverse employment action because of that disability. The ADA also provides for a retaliation action as an employer cannot discriminate against any individual because such individual has opposed any act or practice made unlawful by the ADA and it shall be unlawful to coerce, intimidate, threaten, or interfere with an individual in the exercise or enjoyment… of any right granted or protected” by the ADA. To establish a prima facie case of ADA retaliation… a plaintiff must show that: (1) she undertook some protected activity, (2) that she suffered an adverse employment action, and (3) that there exists a causal connection between the two.

In Oliver, the Court found that, drawing all reasonable inferences in the light most favorable to the employee, a jury could conclude that the employee was disabled within the meaning of the ADA due to complications related to her pregnancy and that there was sufficient evidence from which a rationale factfinder could conclude that there was a causal connection between Plaintiff’s disability and her termination.

For more information on pregnancy discrimination, the Americans with Disabilities Act, the Pennsylvania Human Relations Act, Disability Discrimination, and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126517.html, http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Filed under Americans with Disabilities Act - Disability Discrimination, FMLA, Hostile Work Environment, Retaliation, Sex / Gender Discrimination

$484,000 Disability Retaliation Judgment is Affirmed

Recently there has been an increase of reported cases involving employees who require an extended leave of absence as a reasonable accommodation request and suffer repercussions at the workplace. The Family and Medical Leave Act (FMLA) provides qualified employees of qualified employers to take up to 12 weeks of time off from work during a specified 12-month period if the employee has a serious health condition that makes the employee unable to perform the functions of a job. The FMLA provides that a qualifying employer must hold an employee’s job open for the period of FMLA leave. When the 12 weeks FMLA leave expire, an employee may still be entitled to additional medical leave from work as a reasonable accommodation under the Americans with Disabilities Act (ADA), the Pennsylvania Human Relations Act (PHRA) and/or the New Jersey Law Against Discrimination (NJLAD). In Boles v. Wal-Mart Stores, Inc. (3rd Cir no. 15-3127) (May 24, 2016), a former Wal-Mart employee filed a lawsuit after he was terminated following a medical leave of absence. The case proceeded to a jury trial which resulted in the entry of a verdict in favor of the employee, including $130,000 in back pay, $10,000 in emotional distress damages, $60,000 in punitive damages and $284,251.86 in attorneys’ fees and costs.

In Boles, the employee was terminated from his position as an assistant store manager after taking medical leave prompted by a leg ulcer. The employee required an extended medical leave which went beyond the 12-week period of leave permitted by the FMLA. When the employee returned to the store on the date his treating physician cleared him for work, he discovered that he could not log onto his computer. A few days later the employee received a termination letter, notifying him that he had been terminated as of one day after he attempted to return to work, for “failure to return” to work. The employee filed a Complaint alleging disability discrimination, retaliation and failure to provide a reasonable accommodation in the form of a request to take extended medical leave, in violation of NJLAD and interference with his rights under the federal FMLA. After disposition of pretrial motions, two claims were presented to the jury; disability retaliation and failure to accommodate a request to grant extended leave. Evidence at the trial included the store manager’s email to a Human Resources Manager asking, “why we are not terminating the employee which resulted in the response that the termination would be a violation of company policy.”

The Third Circuit affirmed that the District Court’s denial of a post-trial motion and held that there was sufficient evidence in the record for a reasonable jury to find in favor of the employee on his disability retaliation claim under the NJLAD which requires that an employee establish that (1) the employee was in a protected class; (2) the employee engaged in protected activity known to the employer; (3) the employee was thereafter subjected to an adverse employment consequence; and (4) there is a causal link between the protected activity and the adverse employment consequence. The court rejected the employer’s argument that the employee had requested indefinite leave and thus had not engaged in a protected activity, noting that taking a disability/medical leave is protected by the NJLAD and the evidence supports the premise that the employee was retaliated against, as he was terminated, for engaging in that activity. The court cited to the fact that internal Wal-Mart emails discussed whether the employee could be terminated for taking leave, and his termination date for alleged “job abandonment” was after the employee attempted to return to work.

In Boles, the Court also rejected the employer’s challenge to the jury’s punitive damages award as the NJLAD permits punitive damages where there is evidence that (1) upper management’s actual participation in, or willful indifference to, the wrongful conduct; and (2) evidence that the wrongful conduct is especially egregious. The Court concluded that second-tier upper managers who were involved in their termination met these requirements because they were responsible for implementing policies and the employee attempted to contact his supervisors and others at Wal-Mart to no avail; Wal-Mart never told the employee that if he did not return by a certain date that he would be fired; and when the employee actually returned to work he was sent home and fired the next day for “job abandonment” with the termination decision being made by a supervisor to whom the employee had spoken about his expected return just weeks earlier.

Requests for accommodations for leave from work can present complex issues. For more information on workplace accommodations and disability discrimination under the Americans with Disabilities Act, the Pennsylvania Human Relations Act, and the New Jersey Law Against Discrimination see the Abramson Employment Law website at http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Terminated Employee “Associated” with Disabled Person Proceeds with ADA Claim

There are occasions when an employee has a need to take a leave from work to assist in the care of a disabled spouse. In certain circumstances where the employer subsequently terminates the employee, the employee may have a claim for “association discrimination” under the Americans with Disabilities Act.

In Pollere v. USIG Pennsylvania, Inc. (E.D. Pa.) (December 18, 2015, McHugh, J.), the employee’s wife began suffering from spinal meningitis which impaired her ability to walk, eat, sleep, and care for herself. As a result of her condition, the wife was hospitalized and the husband took time off from work pursuant to the Family and Medical Leave Act (“FMLA”) to care for his ailing wife. Upon his return to work the employee had a flare up of an unrelated illness, he was hospitalized for two days and when he returned to work, he received an “Employee Performance Notice” that stated that he had used up all of his medical leave and that he left work early on several days. Thereafter, the employee was only able to work sparingly for a period of time and he was readmitted to the hospital. During the absence, the employee and his wife kept the employer informed about his condition. Then the employee received a letter from the employer’s head of human resources, informing him that he needed to provide a doctor’s note explaining his situation and his job would be considered abandoned if he did not promptly respond by a certain date. The employee contacted HR by that date but did not provide a doctor’s note until three days later. In the interim the employee received a letter stating that his frequent absences were being treated as a resignation and his employment status was being changed to “inactive.”

The ADA prohibits employers from discriminating against “a qualified individual on the basis of a disability”, which is defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. ADA protections are not limited to disabled employees and includes adverse employment actions against qualified individuals because of their association with a disabled individual. Thus, under the ADA, employers are prohibited from terminating the employment of an employee because of the known disability of an individual with whom the employee is known to have a relationship or association.

In Pollere, the court noted that discrimination by association provision draws a material distinction between firing an employee because of a relative’s disability and firing an employee because of the need to take time off to care for the relative. An employee is protected under the discrimination by association provision if the employee suffers an adverse employment action because of the known disability of an individual with whom the qualified individual has an association or the employer fears or assumes that the employee may have to miss work to care for a disabled relative. Thus, for an employee to prevail on a disability discrimination by association claim, an employee must prove that: (1) he was qualified at the time of the adverse employment action; (2) he was subject to an adverse employment action; (3) at the time of the adverse employment action, the employee was known by his employer to have a relative or an associate with a disability; and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in the termination decision.

In Pollere, the court held that the employee could proceed with his claim under the discrimination by association provision of the ADA as there was no dispute that the employee was qualified for his job, that he was subject to an adverse employment action, that the employer knew of the employee’s wife’s disability, and at the early stage of the litigation the employee alleged facts that would permit an inference that his wife’s disability was a determinative factor in the employer’s termination decision as the employer referenced the employee’s use of 12 weeks of FMLA leave to care for his wife and the time the employee missed from work was a combination of time spent caring for his wife, and additional time because of his own medical challenges.

Disability claims often present complex issues. For more information on the Americans with Disabilities Act, the Pennsylvania Human Relations Act, Disability Discrimination, and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126511.htm.

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Terminated Employee’s Disability Discrimination and Retaliation Claims Proceed

When an employee with a long history of service to an employer is terminated after developing a disability, shortly after requesting workplace accommodations, determination of the employer’s motivation is often left to a jury. In Gumina v. Rite Aid Corp., No. 3:14-CV-99, 2015 WL 4545465 (M.D. Pa. July 28, 2015), a long-term Rite Aid store manager filed a lawsuit for disability discrimination and retaliation under the Americans with Disabilities Act (ADA) and the Pennsylvania Human Relations Act (PHRA). The employer admitted that the employee had an extensive work history as being well-organized with a friendly, good personality, never received complaints from staff or customers, and good communication skills. For the most part had “exceptional” or “above expectations” annual performance reviews. The employee was diagnosed with severe arthritis in both knees which impaired his ability to stand and walk around the store.

In Gumina,the employer issued a Written Counseling to the employee advising him that his store had “fallen behind” and that he must make immediate and sustained improvement which was the first disciplinary action he had received in more than 20 years of employment, thereafter the employee received a Final Written Warning advising him that his job performance had not improved since the Written Counseling and that he “must be able to meet and perform all of the responsibilities in his job description. In the same time frame the employer was seeking information from the employee’s treating physician concerning (1) how long he would be able to stand and/or walk through the store without a break; (2) how frequently he would be able to stoop, kneel, crouch and/or crawl; and (3) whether he could occasionally climb stairs and/or ladders. The physician responded that the employee could stand and walk for ten to fifteen minutes before his knee pain became severe; bend briefly but not all the way to the floor because of unsteady balance; and could climb incline stairs one at a time slowly provided a sturdy hand railing was available; and that he should not attempt to climb ladders. Shortly thereafter, the employee received a letter advising him that his employment was terminated because the employer claimed that he could not meet the requirements of the job. While the Court noted that there is no dispute that the employee was unable to meet several of the “Physical Demands” in the job description, the employee has made several job accommodation requests including being transferred to a position in which he would walk and stand less as long as he did not have to travel more than one hour to the job site, and adding some hourly employee hours at the store so that other employees could perform certain tasks.

To state a prima facie case under the ADA, an employee must establish that he (1) has a disability (2) is a “qualified individual”, and (3) has suffered an adverse employment decision as a result of that disability. To be a “qualified individual” an employee must demonstrate that with or without reasonable accommodation, he can perform the essential functions of the employment position that such individual holds or desires.” In Gumina, the court noted that the case will ultimately be decided by answering whether the employee has the physical capacity to “perform the essential functions of the position. In order to make this determination the following evidence must be considered: the employer’s judgment as to which functions are essential; written job descriptions prepared before advertising or interviewing applicants for the job; the amount of time spend on the job performing the function; the consequences of not requiring the incumbent to perform the function; and the work experience of others.

In Gumina, the court concluded that reasonable jurors could conclude either way: that the employer’s reasons for firing were born of his inability to perform the essential functions; or that the stated reason for firing Plaintiff was related only to the fact of his disability, a pretextual reason. Thus, the Court denied each parties’ Motion for Summary Judgment and determined that the case must proceed to trial so that a jury could evaluate the competing testimony of the employee and the employer to make the determination.

One other significant issue arose in Gumina regarding the fact that ultimately the employee applied for Social Security Disability Insurance Benefits. The employer claimed that the fact that the employee received benefits was inconsistent with his assertion that he could perform the job of a Rite Aid store manager with appropriate accommodations. The Court noted that since the Social Security Administration does not take into account the possibility of reasonable accommodation in determining SSDI eligibility, an ADA plaintiff’s claim that he can perform her job with reasonable accommodation may well prove consistent with an SSDI claim that he could not perform his own job or other jobs without it.

For more information on the Americans with Disabilities Act, disability Discrimination, age discrimination and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-1126511.htm, http://www.job-discrimination.com/lawyer-attorney-1126515.html.

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Filed under Americans with Disabilities Act - Disability Discrimination, Employment Law, Retaliation