Employment & Labor Insider

Lately I’ve written about some court decisions that were good for employers. (See here and here.)

The reason the outcomes were good is that the employers did the right things before their cases even got to court. (No free lunch in our legal system.)

Of course, sometimes the employers don’t do so well. As a result, they lose – or, at least, lose at a significant preliminary stage.

I hate to be a downer right before the holidays, but here is a case where an employer messed up in three significant ways. As a result, it faces a jury trial on the former employee’s disability-retaliation and age discrimination claims.

Our story

In 2015, our plaintiff (we'll call her Wanda) was using a crosswalk as a pedestrian and was hit by a car. She survived the accident but had a concussion. The longer-term effects included terrible headaches, and difficulty “typing and thinking abstractly.” Wanda requested, and got, reasonable accommodations of part-time work, time off for her medical appointments, and a reduction in her billing requirements.

Good employer!

About two years later, the doctor said Wanda could go back to work full time but should not spend more than 5-6 hours a day looking at a computer screen. As a result of this recommendation, Wanda asked to be allowed to continue with the reduced billing requirements plus a limit of 5-6 hours a day on the computer.

The plaintiff’s boss (we'll call him Kyle) agreed to the accommodations but only if “there is a timeline and an end to [the accommodations] in the foreseeable future . . . It cannot be permanent.”

The requested accommodations were approved for about four months. Then the company continued to leave the accommodations in place for another year.

Woo-hoo!

At the end of that year, Wanda submitted a new accommodation request. Now she wanted to work 30 hours a week with the same 5/6-hour limit on her screen time.

The Human Resources Department asked Kyle whether he was ok with this accommodation. He wasn’t thrilled about it, but the company still went ahead and provided the requested accommodation for another year and a half.

Way to go, HR!

Then Wanda asked for intermittent leave under the Family and Medical Leave Act. When Kyle found out, he said in an email to HR, “It seems to be a never ending story: anything I can do?” HR responded, in effect, “No.”

Then Kyle announced in an email that he wanted to talk to the HR rep about Wanda in a different email “stream.”

In the separate “stream,” he told the HR rep he wanted to talk to Wanda “about her future.” He said that she was doing “an OK job right now . . ..”

You can hear the "but," right?

About 10 months after that, Kyle fired Wanda. He told her that her "role" was being eliminated. He assured her that it had absolutely nothing whatsoever to do with her performance.

Wanda sued the company, Kyle, and Kyle's predecessor for disability-related retaliation and age discrimination, and the lawsuit was dismissed.

For a while.

But the U.S. Court of Appeals for the Third Circuit reversed this week, reinstating her lawsuit. So now her case will go to a jury. Here’s why:

No. 1: Kyle had an "attitude" about accommodations. In the court’s words, he “consistently disfavored her accommodation requests.” This included his initial reaction that her accommodations could not be permanent and saying that the accommodations needed to end “in the foreseeable future.” The “never ending story” comment surely didn’t help, either.

As our good readers know, reasonable accommodations may have to be made throughout an employee's career. The accommodations also may require adjustment over time as the employee’s medical condition changes – either for the better, or for worse. Reasonable accommodations aren’t like FMLA leave, where you get a finite “allotment” (for each 12-month period, anyway) and then you’re done.

The Court said that Kyle’s bad attitude about accommodations might have been enough justification in itself to allow Wanda's case to go to the jury.

But wait! There was more.

No. 2: Kyle changed his tune about the reason for termination. This one is a killer for employers. Remember when Kyle emphasized to Wanda that she was not being terminated because of job performance? And told the HR representative that Wanda’s performance was “OK”? And told Wanda that her “role” was being eliminated? That was then.

At some later point, Kyle took the position that Wanda was terminated for poor performance and for not being sufficiently "collaborative." According to Kyle, he told her that her performance was fine only “because he wished to ‘soften the blow somewhat of being selected for separation.’”

That sobbing you hear is from the company's employment counsel.

I don't know what was really going on here, but I can guess. Kyle told Wanda that her performance was not the issue, and that her “role” was being “eliminated.” Like, a restructuring of some sort. No fault. Them's the breaks. Better luck next time.

But my guess is that a month or so later Kyle hired someone else to fill Wanda’s “role.” In other words, my theory is that her "role" in fact was never eliminated.

As most of you know, it is a big mistake for an employer to call a termination a “restructuring” or “job elimination” when it’s really a termination for poor performance, bad behavior, attendance, misconduct, bad attitude, or whatever. If an employer wants to call a termination a “restructuring” or “job elimination,” it needs to be prepared to eliminate the position, not refill it in six weeks. If it’s a genuine restructuring, the employer won’t have a problem with that.

And did I mention that Wanda’s performance reviews from a few months before the termination were full of raves about how great – and collaborative – she was? They were.

No. 3: If Wanda really was a poor performer, that apparently was never addressed. Performance issues, and lack of "collaboration," should be addressed when issues arise and also in the employee's performance evaluations. The discussions should be documented, preferably with specific examples. That will go a long way toward helping an employer prove that the termination was for legitimate reasons unrelated to the employee’s protected status.

It also puts the employer in a much more defensible posture in the event of a lawsuit.

No. 4: One more thing. You may think this was a partisan panel of judges. It wasn't. One was a Biden appointee, but the other two were Republican appointees (George W. Bush and Donald Trump). They all agreed.

My usual summary judgment disclaimer: The employer (and Kyle) lost this round, but that doesn't mean they will lose the case. Summary judgment would have resulted in dismissal without a trial, which would have been great for the company because the legal fees are much more reasonable at that stage, and the defendants don't have to worry about what individual jurors may do. But it's still possible that, after a full-blown trial, Kyle and the employer will win . . . 

. . . against a plaintiff who got hit by a car and was severely injured, but managed to come back to work and nail it with some relatively modest reasonable accommodations . . .?

Well, anything is possible, I guess.

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And with that, our blog will be signing off for the holidays. We'll be back on or about Friday, January 3. Thank you so much for joining us this year, and we wish you all a merry Christmas, a happy Hanukkah, or a happy winter break, as the case may be. Not to mention a totally awesome 2025. See you next year!