Labor & Employment Law Daily After on-the-job injury, insurance sales rep was fired for absenteeism, job deficiencies, not disability
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Monday, February 24, 2020

After on-the-job injury, insurance sales rep was fired for absenteeism, job deficiencies, not disability

By Ronald Miller, J.D.

If an employee is not qualified for her job for reasons unrelated to her disability, “the ADA does not shelter disabled individuals from adverse employment actions.”

Although an employee suffered an on-the-job back injury, she failed to establish that her subsequent termination was the result of discrimination and retaliation in violation of the ADA, ruled the Seventh Circuit. Even before the employee’s injury, her supervisor had consistently noted in performance reviews that she had performance and absenteeism issues. Consequently, the appeals court concluded that the termination was the direct result of the employee’s pattern of absenteeism and deficiency in product knowledge (Stelter v. Wisconsin Physicians Service Insurance Corp., February 20, 2020, Bauer, W.).

Performance deficiency. The employee worked as an agency sales representative tasked with supporting agency sales managers in their efforts to sell the employer’s insurance products. Beginning in 2010, an agency manager expressed concern in the employee’s performance review regarding personal appointments made during work hours. In 2013, the agency manager again commented in her performance review about scheduling appointments during work hours and that the employee needed better familiarity with large group insurance products.

Work injury. In February 2014, the employee injured her back while at work. She filed an injury report, and the employer approved her request for time off. On April 17, her doctor cleared the employee to return to work with no restrictions. In June of 2014, the agency manager gave the employee an overall rating of improvement needed in her performance review, and placed her on a performance improvement plan. To get the employee better acquainted with selling large group insurance, the agency manager had her visit another office about a two hour drive away.

In September 2014, the agency manager met with the employee on a weekly basis to discuss tasks and training needs. The agency manager’s notes expressed her frustrations that the employee failed to request additional training and continued leaving work for appointments without giving adequate notice. The employee was terminated on December 10, 2014.

Thereafter, the employee sued the employer for discrimination and retaliation in violation of the ADA. She claimed she was disabled under ADA with back pain from the work injury. The district court granted summary judgment to employer.

Disability claim. To succeed on an ADA claim, an employee must show three elements: (1) she is disabled; (2) she is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the adverse job action was caused by her disability. In this instance, the district court considered the second and third elements.

As to the second element, the district court found that the employee was not qualified to perform the essential functions of her job. If an employee is not qualified for her job, for reasons unrelated to her disability,” the ADA does not shelter disabled individuals from adverse employment actions.”

In this instance, the agency manager recommended the employee’s termination because she failed to provide notice of her absenteeism, lacked understanding of large group insurance products, and failed to follow directions. The appeals court rejected the employee’s contention that the agency manager’s reasons for recommending her termination were pretextual. It noted that under a pretext analysis, the focus is whether the employer honestly believed the reason it had given for termination.

Pretext. To establish pretext, the employee needed to show through inconsistencies or contradictions by the agency manager that the reason for termination was not the reason proffered, but instead discriminatory. The reasons given for terminating the employee, including a pattern of absenteeism and deficiency with large group insurance products, were mentioned in the employee’s performance reviews dating back before her injury at work occurred. Therefore, no reasonable jury could conclude that the employee was terminated on account of her disability.

Adverse action. As for the third element, the employee was unable to show that her disability was the “but for” cause of her termination. Again, the appeals court noted that the termination was the direct result of the employee’s absenteeism and deficiency with large group insurance products. Thus, the court found that the district court properly granted summary judgment on both the second and third elements of the employee’s ADA claim.

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