Employment Law Daily Jury to decide if pre-accommodation performance unfairly considered in hearing-impaired employee's firing
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Monday, September 26, 2016

Jury to decide if pre-accommodation performance unfairly considered in hearing-impaired employee's firing

By Brandi O. Brown, J.D. Although an employer contended that a hearing-impaired employee's performance was inadequate, she argued that her performance had improved after she began receiving accommodations and that the employer’s pre-accommodation performance concerns were unfairly considered when she was fired at the end of her probationary period. In light of the parties’ "competing factual pictures," a federal district court in Wisconsin denied summary judgment on the employee’s failure-to-accommodate and disability discrimination claims under the ADA and the Rehab Act (Erickson v. Department of Workforce Development, September 21, 2016, Conley, W.). Client becomes employee. A few years after obtaining a Master's degree with assistance from Wisconsin’s Department of Workforce Development, the hearing-impaired employee got a job with the Department’s division of vocational rehabilitation (DVR) as a DVR Counselor. She began her one-year probationary period in August 2011. As a probationary trainee, she was subject to reviews at three-month intervals. However, she did not receive her first review until five months into her probation. The written evaluation indicated she was meeting all goals except two—her caseload was below average and she had only developed one individualized plan for employment (IPE) with a consumer, so that was not evaluated. Two months later, the caseload goal was "met." Concerns about IPEs. A few months later, though, the supervisor raisedconcerns about the employee's potential as a counselor. In her "9-month" review, which occurred at 11 months, the goal related to IPEs was marked unmet. The employee objected that she had completed them in the way she had been instructed. She also raised her own concerns about her caseload. About a week after he met with the employee to discuss the review, the supervisor emailed HR essentially warning the director that he was going to recommend that the employee not pass the probationary period. He later elaborated that he had concerns about her recurring problems with the development of IPEs. When asked for specific information for a termination letter, the supervisor acknowledged that at the six-month review mark the IPEs the employee had prepared thus far had been adequate. "Cheesy" to bring up disability? In meetings with her supervisors regarding her probationary status, the employee expressed confusion about what was missing from her IPEs. In a separate meeting with the area director, she said she had a hearing impairment and a disability certification on file. She alleged that the director told her it was "cheesy" to bring up her disability at that point and fruitless to request an accommodation. However, the director acknowledged that the reviews suggested the employee met the standards for the most part and she was surprised by the errors in the supervisor's review. Accommodation requests, probation extended. Performance-related paperwork continued to be exchanged between the parties over the next several weeks. The employee reached out to HR to request an accommodation. Thereafter, the demands on the employee allegedly increased and her caseload grew until she had the second highest load in her district. Meanwhile, the director developed a list of additional concerns about her. The employee did not learn her request had been granted until early January. At an early February review she was told that the director had new performance concerns. The employee contended that the critiques were based on pre-accommodation performance and refused to sign the document. In mid-February she was fired. She had been unable to make use of several of the accommodations in the meantime. Qualification is triable issue. Denying summary judgment on the discriminatory discharge claims under the ADA and Rehab Act, the court noted that the disputed prima facie elements were whether the employee was otherwise qualified for the position and whether she was fired because of her disability. As to the former, the "core problem" with the motion "is that the characteristic of being able to produce appropriate IPEs is not a clear-cut characteristic, as the ability to lift a certain amount of weight, to drive or to ambulate might be." Unlike those situations, this case turned on heavily disputed facts such as what constituted an appropriate IPE, whether the employee's IPEs were appropriate, and whether she could have produced more she been accommodated. She had the education needed and the certification required. Other, subjective qualifications could not be determined on summary judgment, particularly in light of evidence that there were no concerns about the quality of her IPEs until 11 months into her employment and evidence of the increase in her caseload by that point. Moreover, "two core factual circumstances" were in dispute with regards to causation—whether the concerns about her performance were pretextual and whether the employer fired the employee for performance issues pre-dating her accommodation, which would have been addressed. Accommodation barely in place. On the failure-to-accommodate claim, a reasonable jury could find that the department's awareness of the employee’s disability dated all the way back to 2002, when she was a department consumer. She also disclosed her receipt of disability services on her job application and in interviews. Thus it was arguable that the employer had an obligation to engage in the interactive process at the beginning of her permanent employment, rather than waiting for her to request one a year later. A jury could also find that the director failed to actually provide the accommodations required. Furthermore, the record showed that the accommodations were in place for less than six weeks before the employee was fired. During that period, the court noted, the employee's difficulties arguably increased because of lengthy meetings that were scheduled at the last minute, thus not allowing for the accommodations required to be in place. The employee contended that the employer "thwarted her efforts to use the accommodation." A reasonable jury, the court concluded, could determine that the decision to fire the employee within just a few weeks of establishing the possible accommodation effectively constituted a denial of her request.

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