Employment Law Daily Firing high-rated, newly diagnosed manager on word of troublemaker suggests ADA violation
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Tuesday, April 2, 2019

Firing high-rated, newly diagnosed manager on word of troublemaker suggests ADA violation

By Lorene D. Park, J.D.

A dental office manager raised triable issues on whether her recent medical diagnosis was the real reason for her discharge because her performance was recently commended, her discharge didn’t follow progressive discipline, and others had not been fired for worse conduct.

Less than two months before she was fired, the employee was praised on staff interactions and communication, but after her diagnosis with a neurological disability, she was issued her first discipline in 11 years, for reasons that shifted over time, and she was fired for a few unprofessional comments that the HR director testified would not normally result in termination under the progressive discipline policy. Against this backdrop, and considering that others had engaged in worse conduct and were not fired, a federal court in Michigan denied the employer’s motion for summary judgment on her ADA and state-law disability discrimination claims. However, she failed to raise a triable issue on whether her discharge was due to reverse race discrimination (Hardcastle v. Center for Family Health, March 28, 2019, Hood, D.).

The employee was hired in 2004 as a dental manager; she scheduled employee shifts, conducted meetings, gave performance reviews, and participated with HR in hiring and firing. She reported to the Chief Operating Officer (COO), who in performance reviews stated that the employee had a “positive attitude,” was considerate, and had “excellent” leadership and communication skills.

Neurological condition. In April 2015, the employee began having vision problems, facial drooping, and migraines. She was diagnosed with right-sided Horners Syndrome, a neurological condition. She took sick time for blinding headaches and medical appointments. She was “pretty scared” and started researching her condition on her computer and discussing it with coworkers.

Discipline. In August 2015, the employee met with the COO and a dentist to discuss hiring staff and performance concerns. The COO noted medical leave as a possible response to performance issues. The COO later decided to discipline the employee, though the COO could not recall when or why. She drafted a documented verbal warning, which was the employee’s first discipline in 11 years. The COO stated concerns with “judgment and decision making” and accused the employee of not taking “ownership” of a performance review that was given to a subordinate.

COO shifts reasoning. Contrary to what she wrote, the COO testified that she was upset the employee had asked HR about hiring additional dental assistants without talking to the COO, though she then admitted that the employee had, in fact discussed staffing with her. The COO later changed her story and said she was upset about the way the employee had scheduled two staff members, though the COO admitted that there was no policy directing the employee how to do it and scheduling was up to the employee.

Fired assistant points finger at employee. Later in August, several employees complained about a dental assistant who was screaming at them and throwing instruments. These were not the first complaints about that assistant, who had yelled and used profanity before, and had acted so unprofessionally that some dentists refused to work with her. The employee always took such reports to HR, and this time the employee was told to fire the assistant. When told she was fired, the assistant accused the employee of being “racist” and claimed the employee said “something about homosexuals.” The employee expressed that maybe her medical diagnosis was “affecting how I’m relating to people.”

Employee fired. This was the first time the fired assistant had ever complained about the employee. She also accused the employee of talking to staff disrespectfully, but HR discovered no more than a few insensitive, but not discriminatory, comments. Nonetheless, the employee was fired for “poor judgment,” like asking someone if they liked boys or girls and commenting on someone’s weight. Before the investigation, none of these employees had complained.

Disability discrimination. Denying summary judgment on the employee’s disability discrimination claims under the ADA and state law, the court first found she sufficiently established that she was impaired in several major life activities, including seeing. She also raised triable issues on whether the employer knew about her disability or regarded her as disabled, given her medical leave and conversations at work. Thus, she established her prima facie case.

Moreover, while poor judgment is a legitimate reason for termination, the employee raised triable issues on whether this was pretext. For one thing, the HR director testified that under the progressive discipline policy, the employee’s offenses would normally start with a written warning, then a one-day suspension, and finally termination, so her discharge did not comport with the policy. Furthermore, the employee’s performance reviews, even less than two months before her termination, showed that she was a highly rated and effective manager, who was commended on staff interactions and communications.

Pretext was also evidence by the fact that others had engaged in worse conduct but were not terminated, including a dentist who used work computers for pornography. Indeed, the medical assistant who was the subject of so many complaints had her termination rescinded after she complained about the employee. All of this raised triable issues.

Race discrimination. On the other hand, the court granted summary judgment against the employee’s reverse race discrimination claims. She could not establish a prima facie case because she was replaced by another Caucasian woman and there was no evidence of disparate treatment because the employee is white. Even if she did establish a prima facie case, there was no evidence of race-based comments or other evidence that race factored into her discharge.

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