By Marjorie Johnson, J.D. Reviving a fired mine worker’s ADA retaliation claim, the Tenth Circuit found triable issues as to whether he engaged in protected activity when he brought up his impending surgery during a disciplinary meeting, and whether the decision to discharge him was made before he recited his doctor’s note confirming his need for surgery to his supervisor. The district court’s dismissal of his claims on summary judgment was reversed and remanded (Foster v. Mountain Coal Co., LLC, July 26, 2016, Phillips, G.). The employee injured his neck at work on February 5, 2008, and sought care at the emergency room. The ER doctor gave him a return-to-work form excusing him for February 6 and 7, but due to a previously scheduled vacation and hernia operation, he missed work from February 6 to March 28. On February 10, the HR manager told him that the ER doctor’s return-to-work form was inadequate and that he needed to have the doctor complete the company’s form. Conflicting stories. Evidence regarding the course of events over the next several weeks was conflicting. He claimed he was unable to get the form from the ER doctor and turned to his primary-care physician (PCP) for assistance. He asserted that the PCP first gave him a form that he left on an HR clerk’s desk, but the clerk denied ever receiving it and management suspected he was lying about having obtained it. It was undisputed, however, that management received what he claimed was a "second" note from his PCP dated March 18. He returned to work on March 31, and on April 3 was called into a meeting with the general manager (GM) and an HR employee. He said they told him he was being suspended because he obtained a return-to-work form from his PCP who never personally examined him for his neck injury. His employer contended that he was suspended because it believed that he had lied about having obtained a first note from his PCP. The employee also claimed that at the meeting, he complained that "You sons-a-b****es has been trying to get rid of me for the last year, one way or another" and that he said he was going to see the company-referred doctor on Friday to schedule surgery. Termination. Management claimed that they decided to terminate him on April 9 based on his dishonesty about his doctor’s note but were unable to reach him to advise him of his fate. Meanwhile, on April 11, he picked up his PCP’s latest letter indicating he would likely need surgery and at some point that day recited the letter to his supervisor over the phone. On April 14, he received a letter dated April 11 stating that he had been terminated "effective April 9" because he "gave false information as to a credible Return To Work Slip." Adequate accommodation request. To show that he engaged in protected activity by making an adequate request for an accommodation, the employee relied upon his statements at the April 3 meeting and statements from his PCP’s April 11 letter that he read to his supervisor. Rejecting the district court’s determination that both requests were undisputedly inadequate, the Tenth Circuit found that his comments at the April 3 meeting could be interpreted as direct and specific enough to put the employer on notice that he was requesting an accommodation for his neck injury. Although his testimony "could be clearer," a reasonable jury could conclude that, after being suspended, he asked for the company’s cooperation with an upcoming surgery and associated recovery, particularly in light of management’s interest in obtaining his return-to-work form for a known neck injury. Moreover, because the purported protected activity occurred mere days or even hours before the termination decision (the time of which was disputed), the employee could show causation solely with evidence of temporal proximity. Termination wasn’t necessarily already contemplated. The employer also failed to show that in firing the employee, "it proceeded along previously contemplated lines of discipline," pursuant to the U.S. Supreme Court’s reasoning in Clark County School District v. Breeden. Distinguishing Breeden, the Tenth Circuit found that a triable fact issue existed about why the employee was suspended: The employer claimed it was because he lied about having provided a return-to-work form, while he said it was because he obtained a form from a doctor who never saw him for his neck injury. If a jury credited his reasoning, that would mean he was suspended for one reason (getting a form from the wrong doctor) and terminated for another (lying about providing a return-to-work form). Questionable timing of discharge. Moreover, a reasonable jury could find that he was terminated after his April 11 request for accommodation during his telephone call with his supervisor. In concluding that he failed to refute the employer’s assertion that he was terminated on April 9, the district court did not fully consider evidence refuting the managers’ account of an April 9 termination. His supervisor undisputedly did not know about his termination on April 11, and a jury could find that his termination letter, dated April 11 and made retroactive to April 9, was typed after his telephone call to the supervisor. Pretext. Finally, management’s inconsistent reasons for the decision to discharge him sufficiently suggested pretext. While the GM and HR rep testified that he was terminated because he lied about providing the first return-to-work form, another manager testified that it was because his return-to-work form "didn’t have the right date for his release and stuff on it." A reasonable jury could find this inconsistency, coupled with the termination letter’s disputed effective date, was enough to infer pretext.
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