Let’s say an employee with a known disability walks into his supervisor’s office. An argument ensues over, (1) the employee’s request for a reasonable accommodation and (2) the supervisor’s critique of the employee’s job duties. The employee’s outburst goes from a profane tirade to physically grabbing the supervisor by the arm to get his attention. The employee is terminated on the spot.
The employee files a discrimination charge with the Equal Employment Opportunity Office (“EEOC”) and after an investigation, obtains a right-to-sue letter, whereby he files suit in federal court. After discovery is completed, the employer moves for summary judgment claiming that the employee’s argumentative behavior (even if partly caused by his disability and during the request for a reasonable accommodation) is not protected under the Americans with Disabilities Act (“ADA”).1 One might think that the employee has a tenable case. After all, he is disabled, the supervisor knew about it, the disability may have contributed to his outburst and it occurred in the context of discussing a reasonable accommodation. However, given the right facts, the employer has a strong case that the termination was not based on a disability, but rather occurred because of misconduct that is not tolerated at any level in the workplace.
Even if an employee claims to have a disability, the ADA acts as a shield to protect the employee for disparate treatment on the basis of the disability. It does not however, give employees greater protections under the law or otherwise insulate behavior that an employer would not otherwise tolerate from non-disabled employees. This article will explore the ways that an employee may be hard pressed to show a discriminatory motive based on the employee’s own bad behavior.
Proving discrimination comes in one of two ways. The first is finding direct evidence, such as an admission by the employer that the party was terminated because of a protected characteristic.2 This is rare. The second (and often used) method is the indirect way: 1) a showing that the employee falls into a protected category; 2) was performing up to the employer’s legitimate expectations; 3) suffered an adverse action (e.g, termination); and 4) similarly-situated employees outside the protected class (viz. non-disabled) were treated better.3 This method attempts to isolate the variables that could result in a non-discriminatory reason for a termination. If the plaintiff and comparable employee(s) outside the protected class are the same except for (in this case) a disability, the inference can be made that the disability caused the termination.
The ADA is not a statute that requires “just cause” for discharges, so at-will employment is still alive and well in Illinois. If an employer knows that an employee is disabled and the employee engages in insubordination, the latter conduct is legitimate grounds for termination. An employee becoming upset with a co-worker to the point of causing disruption at work is not ADA-insulated behavior. “An essential function of almost every job is the ability to appropriately handle stress and interact with others.”4 If a disabled employee fails in this regard, the employee is at risk of disciplinary action, including possible termination. Taking this a step further, insubordination shows that an employee is not meeting his employer’s legitimate job expectations.5 Insubordination comes in all shapes and sizes. On the lesser end of the spectrum is not following orders;6 on the other end is violent behavior towards supervisors and co-workers.
There is a bit of irony when one of the orders (or requests) by an employer is that the employee produce documentation to substantiate medical absences from work. For example, in the construction trade, the health of a worker could impact not only that worker’s job safety, but also the safety of co-workers. An employer that is left in the dark on repeated absences would certainly want some information from the employee about time missed. The employer could require the employee to being a doctor’s note—a reasonable request. A refusal is insubordination, even if the employee is claiming he is disabled.
The ADA also does not prohibit employers from controlling the work environment. If an employee is insubordinate and refuses to follow orders, this is legitimate grounds for discipline.7 The ADA also does not protect a disabled worker who, for reasons unrelated to the disability, performs work in an unsatisfactory manner and fails to follow the employer’s general work standards.8 This issue dovetails into one aspect of the plaintiff’s ADA case – whether he could perform the job according to the employer’s legitimate expectations. If the employee cannot satisfactorily show this at the summary judgment stage, the case falters because the disability was not the but-for cause of the adverse action.
Not surprisingly, the ADA “does not require an employer to retain a potentially violent employee.”9 The ADA only “protects a ‘qualified’ employee, that is, an employee qualified to do the job for which he or she was hired; and threatening other employees disqualifies one.”10 In Palmer v. Circuit Court of Cook County, Ill., the court found no evidence that plaintiff was fired because of her mental illness; rather, she was fired because she threatened to kill another employee.”11 While the cause of the threat may have been plaintiff’s mental illness, the fact that the unacceptable behavior was precipitated by a mental illness does not afford protection under the ADA.12
This makes logical sense. Retaining a known violent employee (regardless of the cause) subjects the employer to a negligent retention claim if it could pose a safety risk to other employees. Employers should be allowed to terminate such employees without subjecting themselves to ADA liability. If not, then this places an employer in a Hobson’s choice—pick your poison—a state-law tort claim or a federal claim. The ADA is not meant to be that heavy handed.
This also applies when the employee is requesting a reasonable accommodation. At some point in the ADA-mandated interactive process, an employee’s behavior may cross the line into unprotected behavior. For example, in a recent Seventh Circuit case, the employee claimed that he was engaging in the interactive process with a general foreman which devolved into a profanity-laced tirade from the employee and his employee grabbing the general foreman.13 The court found that the employee halted the interactive process by his defiant behavior.14 Thus, even if an employee can show that he was disabled at the time and that an accommodation existed, an employer can justifiably terminate the employee without being liable under the ADA.
One argument used by employees is the timing between the disclosure of the protected activity (informing the employer of a disability and the need for an accommodation) and adverse action, such as an employee being terminated.15 If the latter comes on the heels of the former, this would tend to support the argument that the protected activity motivated the adverse action. But there could be an intervening event that motivated the adverse action. For example, an employee walks into a supervisor’s office, says he has a disability that needs accommodating. The employer requests more specifics and ask for medical documentation, and then the employee becomes severely agitated and starts “tearing apart” his boss’s office. The supervisor then fires the employee. On summary judgment, the trial court would be hard pressed to deny judgment given the employee’s disruptive behavior—an intervening event. “[W]here ‘significant intervening event’ separat[es] an employee’s protected activity from the adverse employment action he received, a suspicious timing argument will not prevail.”16 The reason is that the employee’s behavior (in this case) had nothing to do with the ADA’s interactive process. This process requires the parties to engage in good faith discussions about the need for an accommodation.17 An employer may have too little information to determine what type of accommodation an employee needs, thus requesting more medical information from the employee. If the employee does not cooperate, the interactive process fails and the blame falls on the employee. The interactive process impliedly requires the parties to operate with a certain amount of decorum. If the employee, while engaging in the process, becomes verbally abusive, that too could cause the process to fail. At some point, requesting an accommodation can cross the line into misbehavior so that it is no longer protected.18
Another situation could arise when the employee violates a workplace policy, and then seeks an accommodation of the employer’s overlooking the infraction. The ADA, however, does not require employers, as an accommodation, to excuse past misconduct, or in other words, apply retroactive leniency.19 The EEOC agrees, holding that the ADA is prospective only.20 The various courts of appeal that have considered this are all in accord with this view.21 An employer could get into hot-water if it applied different standards to disabled and non-disabled employees when handling performance deficiencies. This could be part of a plaintiff’s pretext argument.
One of the biggest difficulties with the indirect method approach is locating a similarly-situated employee that was not in the protected class (viz. not disabled) and treated better than the plaintiff. “Whether two employees are “similarly situated” is a common sense inquiry that depends on the employment context.”22 “All things being equal, if an employer takes an action against one employee in a protected class but not another outside that class, one can infer discrimination.”23 “The ‘similarly situated’ prong establishes whether all things are in fact equal.”24 “To make this showing, a plaintiff need not present a doppelganger who differs only by having remained in the employer's good graces.”25 “But the comparator must still be similar enough to eliminate confounding variables, such as differing roles, performance histories, or decision-making personnel, [so as to] isolate the critical independent variable: complaints about discrimination.”26
This is easier said than done because while a clone employee need not be presented (and would be nearly impossible to find in the targeted company), it is not that difficult for an employer to offer sound reasons why the plaintiff was disfavored and another employee was not. The similarly-situated analysis then becomes a battle over differentiating conduct without any clear guidance from the courts.
For example, if the plaintiff suffered from tardiness and personnel difficulties, and a comparator did not, then that may be enough to show that the two employees are dis-similar.27 What about a factor that is not documented, like a supervisor’s opinion of the plaintiff? If a supervisor has a negative opinion (that may come out at a deposition) of the plaintiff, this too could be enough to show dissimilarities.28
Other factors can be more objective. If a comparator’s salary is substantially lower than the plaintiff’s, this too is a materially differentiating factor.29 A plaintiff with a longer tenure at a job might be on a shorter leash when compared with a newer employee who needs time to grow.30 In those situations, an employer would be expecting more in terms of a performance from a longer-tenured worker when compared with one who might be learning the ropes and earning a lesser salary.31
This is what makes discrimination cases so difficult when using the indirect method of proof. If an employer digs deep enough, it could probably find dissimilarities between the plaintiff and co-workers that supports the differentiation in treatment.
Once the employer produces evidence of a non-discriminatory motive, the burden shifts to the employee to show that the employer’s reason was “prextual” – a lie.32 What matters is whether the employer honestly thought the employee engaged in the misconduct and whether that belief motivated the employer’s decision to take action.33 For instance, if an employee argued that he was not the aggressor in a confrontation with a co-worker that precipitated his discharge, that type of evidence may be insufficient to create a genuine factual dispute because it does not speak to the employer’s beliefs at the time the decision was made.34 An affidavit like that only speaks to the employee’s state of mind and his interpretation of events. But the courts repeatedly have said that they do not sit as super-personnel departments to judge the wisdom of disciplinary decisions, so how the employee characterizes the event will not carry the day.35
Some employees (wrongfully) believe that once an employer is notified that the employee is disabled and/or requests a reasonable accommodation, that the employee is otherwise protected for otherwise termination-worthy behavior. Such is not the case, as the courts have shown time and time again. It is not that difficult for an employer to show a legitimate reason for termination that is unrelated to a disability. This is even more so when there is some minor dispute between the employee and employer as to what actually triggered a misconduct-based termination. An employer’s good faith belief on the fateful interaction could be just enough to prevent the case from heading to a trial.
1 See, e.g., Gogos v. AMS Mechanical Systems, Inc., No. 15-3603 (7th Cir. February 3, 2017) (unpub.)
2 Sanghvi v. St. Catherine’s Hosp., Inc., 258 F.3d 570, 574 (7th Cir. 2001).
3 Serednyj v. Beverly Healthcare, LLC, 656 F.3d 540, 550 (7th Cir. 2011).
4 Mayo v. PCC Structurals, Inc., 795 F.3d 941, 944 (9th Cir. 2015).
5 Williams v. Airborne Exp., Inc., 521 F.3d 765 (7th Cir. 2008).
6 Habib v. NationsBank, 279 F.3d 563, 566 (8th Cir. 2001) (refusing to supply a doctor’s note to substantiate an illness has been held to be insubordination).
7 Hammel v. Eau Galle Cheese Factory, 407 F.3d 882, 863 (7th Cir. 2005).
9 Palmer v. Circuit Court of Cook County, Ill., 117 F.3d 351, 352 (7th Cir. 1997).
10 Id. at 352.
12 Id.; Newland v. Dalton, 81 F.3d 904, 906 (9th Cir. 1996) (termination was not retribution for alcoholism, but rather in response to attempting to fire a rifle in a bar).
13 Gogos, No. 15-3603, slip op. at 3, 5.
14 Id. at 5.
15 Loudermilk v. Best Pallet Co., 636 F.3d 312, 315 (7th Cir. 2011).
16 Kidwell v. Eisenhauer, 679 F.3d 957, 967 (7th Cir. 2012).
17 The interactive process contemplates an employee providing information to the employer that only the employee can access; if the employee refuses, he is not acting in good faith. Beck v. University of Wisconsin Bf. Of Regents, 75 F.3d 1130, 1135, 1137 (7th Cir. 1996) (“A party that fails to communicate, by way of initiation or response, may also be acting in bad faith.”) (emphasis added); 29 C.F.R. Appx. § 1630.9; Equal Employment Opportunity Commission, Employer-Provided Leave and the Americans with Disabilities Act, at 5 (May 9, 2016) (“An employee requesting leave as a reasonable accommodation should respond to questions from an employer as part of the interactive process …”) https://www.eeoc.gov/eeoc/publications/ada-leave.cfm (visited May 17, 2016).
18 See Jennings v. Tinley Park Cmty. Consol. Sch. Dist. No. 146, 864 F.2d 1368, 1375 (7th Cir. 1988) (holding “that an employee may not use legitimate opposition to perceived unlawful employment discrimination as a gratuitous opportunity to embarrass a supervisor or thwart his ability to perform his job.”).
19 Dewitt v. Southwestern Bell Telephone Company, No. 14-3192, slip op. at 31 (10th Cir. Jan. 18, 2017).
20 Id. at 31.
21 Id. at 32.
22 Filar v. Bd. of Educ. of City of Chicago, 526 F.3d 1054, 1061 (7th Cir. 2008).
23 Id. (citation omitted).
26 Id. (internal quotations marks and citation omitted).
27 Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328 F.3d 309, 322 (7th Cir. 2003). 28 Id.
30 Doe v. First National Bank of Chicago, 865 F.2d 864, 877 (7th Cir. 1989) (employee’s longer tenure).
31 Sartor v. Spherion Corp., 38 F.3d 275, 279-80 (7th Cir. 2004) (substantial difference in work experience is differentiating factor).
32 Serednyj, 656 F.3d at 551.
33 Buie v. Quad/Graphics, Inc., 386 F.3d 496, 505 (7th Cir. 2004).
35 Stephens v. Erickson, 569 F.3d 779, 788 (7th Cir. 2009).
Brian M. Dougherty is a partner in the litigation group at Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd. His practice area includes representing employees and employers in employment disputes arising under state and federal law, commercial landlord-tenant matters and business torts. Brian is currently the Associate Editor on DCBA Editorial Board.