By Joy P. Waltemath, J.D.
After his partner was fired, admittedly because of her poor health (breast cancer), a receptionist was fired for an absence that had been pre-approved, though the facilities manager would not allow the receptionist to retrieve proof that it had been approved. In the opinion of a federal district court in Illinois, this was enough to deny summary judgment on the receptionist’s associational discrimination claim (Aliferis v. Generations Health Care Network at Oakton Pavilion, LLC
, September 19, 2016, Chang, E.).
Partner with breast cancer.
The receptionist and his partner worked for the same employer in two different nursing facilities that were located in nearby buildings. When his partner was diagnosed with breast cancer, he routinely drove her to doctor’s appointments, first filling out a "Requesting a Change in Schedule" form, which his supervisor would sign and return a copy to him. There was conflicting testimony whether such forms were required to be maintained in employees’ personnel files, but the receptionist always kept a copy of his in his bag. Six months after his partner was diagnosed, on September 1, 2014, new owners bought the facilities and a new facilities manager took over. Several months earlier, the new facilities manager had decided to fire the partner with breast cancer; he also learned that the receptionist and his partner were in a relationship.
Receptionist and partner fired.
Prior to his partner’s September 11 doctor’s appointment, the receptionist filled out a schedule change request form and received a signed copy, but no copy was placed in his personnel file. On September 11, before she left for her doctor’s appointment, the partner was fired; the facilities manager admitted at a staff meeting shortly thereafter it was because of her health. He also admitted that he saw the two leave for the doctor’s appointment.
When the facilities manager later saw no one manning the receptionist’s desk, he did not try to contact the receptionist or ask anyone else where he was, but he did look for the schedule change form in his personnel file. Finding none, he decided to fire the receptionist, which he did the following day at the end of his shift. Although the receptionist argued that he had his absence pre-approved and offered to retrieve his bag from next door to prove it, he was not allowed to (the parties disputed whether he said the bag was next door or, as the employer claimed, at home). His supervisor also confirmed later that week that he had approval to take the day off.
The receptionist and his partner both sued for disability discrimination under the ADA, and the employer moved for summary judgment on the receptionist’s associational discrimination claim. Given that he followed company policy when requesting time off on September 11, the receptionist contended that his employer’s reason for firing him—leaving work without permission—was merely a pretext for its discrimination because of his relationship with his partner who had breast cancer.
In the court’s view, the only issue before it was whether a reasonable juror could conclude that the partner’s disability was a "determining factor" in the decision to fire receptionist. Initially, the court pointed to the Seventh Circuit’s recent rejection of direct vs. indirect evidence, which meant that summary judgment was only appropriate if a reasonable juror could not
conclude based on all of the evidence that the partner’s disability was a determining factor in the receptionist’s termination.
Arguing the totality of the evidence, the receptionist first pointed to the context of his firing to support his association discrimination claim, and the court agreed. That context included the new facility manager’s alleged admission at a staff meeting that the receptionist’s partner was fired "because her health was supposedly too poor to lead the nursing department." He decided to fire her, knowing that she had cancer, even before he became the administrator. And he knew the receptionist and his partner were in a relationship.
The only reason given for firing the receptionist was his absence from work on September 11. He had no disciplinary record at all, much less a history of unauthorized absences. Without knowing who was responsible for maintaining employees’ personnel files and the forms in them, the facilities manager summarily concluded that the absence was unauthorized and warranted termination, without even trying to determine whether there was an explanation for the absence. Despite having seen the receptionist leave that morning with the partner whom he had just fired, the facility manager failed to ask anyone where the receptionist might be. A jury could readily conclude, explained the court, that the "sheer unreasonableness" of the firing decision suggested that in reality the employer was looking for an excuse to fire the receptionist because of his relationship with his partner, who in turn the employer was firing due to her
Failure to investigate.
Conflicting evidence as to whether a schedule change form was required to be placed in an employee’s personnel file suggested to the court that the employer’s reliance on its absence as the sole reason for firing was also a suspicious explanation from which a jury could infer association discrimination. The facility manager’s refusal to meaningfully investigate the receptionist’s absence undermined his claim that he truly was firing the receptionist for leaving work. A reasonable factfinder could conclude that the facilities manager actively avoided finding out whether the receptionist received permission to leave just to have some pretext to fire him. Although the parties disputed whether the form was in a nearby building or at the receptionist’s home, either way, the facilities manager refused to allow the receptionist to retrieve it.
The employer argued that the facilities manager merely had "made the wrong decision. But being wrong is an employer’s right." The court was not swayed. True, "employers are only on the hook for discriminatory practices, not mere mistakes," agreed the court, and a reasonable fact finder could conclude that the decision to fire the receptionist was not discriminatory and instead based on incompetence or poor judgment. But, stressed the court, "a reasonable fact finder could also conclude that there was no mistake here," and the evidence suggested the latter, especially where the facility manager refused to allow the receptionist to go get the documentation showing his absence was pre-approved.
And then there was the close temporal proximity between the time that the facilities manager fired the partner and decided to fire the receptionist: Both events occurred on the same day. Because both the timing and the circumstances—the totality of the evidence—would allow a reasonable fact finder to conclude that the employer engaged in association discrimination, summary judgment was denied.
In a series of footnotes, the court explained that the employer’s reliance on the Seventh Circuit decision in Larimer v. IBM Corp.
did not mandate summary judgment. In Larimer, the Seventh Circuit identified expense, distraction, and disability by association as three types of situations that evidenced "an employer[’s] … motive to discriminate against a nondisabled employee who is merely associated with a disabled person." "Larimer
did not purport to identify the sole grounds for advancing an association discrimination claim, and the McDonnell Douglas
test is just one way in which a plaintiff can survive summary judgment," the court concluded.