Employment Law Daily Firing medically restricted worker for potato chip theft suggests jury should hear ADA claim
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Monday, August 14, 2017

Firing medically restricted worker for potato chip theft suggests jury should hear ADA claim

By Lorene D. Park, J.D.

Denying Staples’ motion for summary judgment against an employee’s disability discrimination claim under the ADA and state law, a federal district court in New York found triable questions on whether she could perform the essential functions of her job despite lifting restrictions and questions on whether her termination for theft of a single bag of chips was pretextual. Among other evidence, the court pointed to testimony that a supervisor involved in the termination decision had expressed frustration to Human Resources and to the employee concerning her medical restrictions and had suggested her pay be cut. In addition, the investigation into the theft was not conducted in the usual manner (Roa v. Staples, Inc., August 9, 2017, Briccetti, V.).

Hired in 2004, the employee worked in Staples “bulk” department preparing merchandise for shipment, which often involved lifting and moving large objects manually or with equipment. The primary responsibilities listed on her job description also included unloading trucks, breaking down pallets, stacking and labeling merchandize, inspecting power equipment, and cleaning the work area, among other things. The job description also listed physical demands for her job, including lifting, pushing, and pulling objects weighing between 70 and 100 pounds.

Medical restrictions. In 2013, the employee was diagnosed with several medical conditions that restricted her from lifting over ten pounds, raising and reaching her arms above her shoulders, turning and twisting her neck, operating electric machinery, and performing repetitive motions. She was put on “light duty,” which under Staples’ policy was a temporary modification, not to exceed six months. Her restriction from operating machinery reduced her productivity, and her coworkers voluntarily assisted her, sometimes staying after their shifts ended.

Emails with HR about employee. In February 2015, the employee’s supervisor sent an email to the HR manager asking “Do we know how long we have to accommodate [the employee]?” He also stated that he had the employee working within her restrictions but her condition was getting worse and she had only been “hitting just 40% of her individual productivity.” In March, the supervisor emailed HR to recommend the employee’s pay be reduced since she wasn’t able to do as much. HR responded that they could not do this due to “disability laws,” and noting that it was important to not make changes because “her injury cases have gone into litigation.” The email also stated: “I know it’s been a long time but I promise there will be a resolution.”

Termination. On July 10, a worker complained to loss prevention that a bag of chips was stolen from his lunch bag. The investigator testified that he did not remember exactly how he investigated but he reviewed video footage and saw the employee remove something indiscernible from the bag. He also said she had been a suspect in a prior theft of a yogurt from the refrigerator. The record reflected that this investigation was unusual because the investigator relied only on the worker’s complaint and did not interview the employee or anyone else. Also, the HR manager didn’t review the video (which was not preserved) before approving the employee’s termination for theft. The HR manager testified that an honest mistake would not constitute theft. Nonetheless, the employee was fired on July 13, even though she asserted in the termination meeting that she took a bag of chips because she mistakenly thought her sister left them for her, and did not commit theft.

Was employee a “qualified individual?” Denying Staples’ motion for summary judgment on the ADA discrimination claim, the court first found triable issues on whether the employee could perform the essential functions of her job with or without reasonable accommodation. Relying on the written job description and the employee’s testimony, Staples argued that moving heavy objects and operating electronic machinery were essential functions, both of which she could not do. However, the court noted that job descriptions are not determinative, and even presuming lifting, pushing, and pulling heavy objects was an essential function, there was evidence that accommodations such as light duty and coworker assistance were available. The court noted that a supervisor had testified that the employee’s restrictions and accommodations did not negatively affect her productivity. Moreover, with respect to the use of electric equipment to move pallets, the employee testified she could do the same functions using a manual pallet jack.

Discriminatory intent and pretext. Moreover, while Staples claimed the employee was fired for theft, there was sufficient evidence of discriminatory intent to round out the employee’s prima facie case and to raise triable issues on pretext. For example, she testified that her supervisor, who was involved in the termination decision, often expressed dissatisfaction with her restrictions, commented on her extended light-duty status, made demeaning gestures and expressions about her disabilities, and assigned her undesirable tasks, such as cleaning. There were also the emails to HR expressing frustration at her reduced productivity because of her disabilities and suggesting her pay be cut. Also, the employee was replaced with someone who could operate the electrical pallet jack.

The court also found it significant that the alleged theft in question was a one-time event involving a single serving of chips, rather than a pattern of thefts or theft of a valuable item. Moreover, Staples failed to preserve crucial evidence used to make the termination decision and failed to interview a crucial witness (the employee’s sister). For all these reasons, summary judgment was not warranted on the ADA discrimination claim. The employee’s claim under New York law, which had the same elements as the ADA claim, also survived.

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