Labor & Employment Law Daily Denying expected job after learning of sales rep’s post-surgery limits may violate ADA, FMLA
Monday, June 4, 2018

Denying expected job after learning of sales rep’s post-surgery limits may violate ADA, FMLA

By Brandi O. Brown, J.D.

A salesman who claimed that, after he informed his employer of a new surgery and related travel restrictions, he was denied a position he had been previously expected to fill, will proceed to trial with his ADA and FMLA claims, a federal district court in Ohio ruled. There was evidence that the employer intended to place him in the new role, but instead fired him after learning of the surgery and related travel restrictions. The defendant’s motion for summary judgment was denied in part (Manion v. Demandware, LLC, May 29, 2018, Gwin, J.).

New product and emergency surgery. In 2014 the plaintiff was transferred from his position with the defendant as a regional sales director to a new team where he was in charge of pushing a new product to customers. He received good performance reviews and was admitted to a goals-related rewards club. In 2016, however, he began to experience health problems and underwent emergency colon surgery. He took several weeks of FMLA leave as a result. Around the same time the employer had begun eliminating members of his team in order to assign responsibility for selling the now-established product to the nationwide sales team. Because it was a newer product, though, the employer planned to create a “subject matter expert” position and the employee’s evidence indicated he was initially slated to be placed in that role.

No longer considered for new role. However, the employee contends that all of that changed when he emailed the same vice president to let him know that upon his return from leave he would have some restrictions and that he would also need to undergo a second surgery a couple of months later. He also spoke to the VP over the phone and told him that he would be unable to travel until after he returned from the second surgery. Four days later the VP sent out a notification to another employee that he did not see any position that would be suitable for the plaintiff upon his return. She later testified that the employee’s inability to travel was part of the reason he was not hired for the job and talking points that she prepared at the time supported that assertion.

Terminated after second surgery. A few weeks later the employee was informed that his employment would terminate several weeks after his second surgery. He informed his employer that he believed his termination was motivated by his health condition and asked to be considered for available positions. Nevertheless, he was terminated in September 2016. He filed suit alleging violations of the ADA and the FMLA.

Causal connection. In a motion for summary judgment, the employer contended that there were several fatal weaknesses in the employee’s claims. It argued that the employee failed to show a causal connection between his use of FMLA leave and his discharge. However, the evidence told a different story when viewed in the light most favorable to the employee. To the court, it showed that the employer intended to place the employee in the subject matter expert position—until the VP learned the employee needed more leave for a second surgery. Then the employer “abruptly changed course” and found no positions suitable for him at all. The temporal proximity between the VP learning of the employee’s need for leave and the decision not to place him in the new role was evidence that was “alone sufficient” to establish causation. The employer’s attempt to point to ambiguous testimony as evidence to the contrary (the employee’s answer of “No” to one question) failed to persuade the court otherwise.

Pretext. Likewise, the employee raised a triable issues on pretext. First, the court explained, it was not clear that the employee’s position was eliminated—there was some evidence to suggest that the subject matter expert position was simply a continuation of his prior work. Training and advising sales representatives on the new product was a “natural part of” the process of transitioning the product from development to regular sales. And even if the position were entirely new, it was still not clear that the employer had a non-retaliatory reason for declining to offer it to the employee. Furthermore, the evidence—including the timing—could lead a jury to find that the employer’s reasons were pretextual. Finally, there was evidence allowing a jury to reject the employer’s argument that the subject matter expert position was not within the employee’s skillset. A jury could find also that the employer’s argument that it did not consider the employee for another sales position was not worthy of belief based on the evidence of his success in pushing an entirely new product.

Could have been accommodated. Similarly, the court declined to grant judgment on the employee’s FMLA interference claim and, with regards to the ADA claims, the court referred back mostly to the same evidence in rejecting most of the employer’s challenges to the sufficiency of the those claims. With regards to the employee’s prima facie case, the court noted in particular testimony from the VP that the employee could have been accommodated in the subject matter expert position regardless of his travel restriction. However, in one respect the court did grant the employer’s motion—the employee would not be allowed to present his accommodation claim to the jury because he failed to include the claim in his EEOC charge.

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