By Ronald Miller, J.D.
An employee failed to show associational discrimination where the employer first permitted him to work a four-day workweek and then offered him the opportunity to work Tuesday through Saturday so that he could take his grandfather to the hospital on Mondays.
A federal district court correctly granted summary judgment in favor of a medical supply company on a chemist’s ADA associational discrimination claim, ruled the Seventh Circuit. The appeals court found that the employee failed to present material facts that would show his employer discriminated against him for his association with his grandfather or that he suffered an adverse action. Further, with regard to his retaliation claim, the employee failed to show that he suffered an adverse employment action as a result of his internal complaints to the employer (Pierri v. Medline Industries, Inc., August 6, 2020, Wood, D.).
Work schedule change. The employee worked as a chemist for a medical supply company. During his four-year tenure, he earned several promotions and received positive performance evaluations. In 2015, his grandfather fell ill with liver cancer. The employee asked his supervisor if he could work 10-hour shifts four days a week, instead of the eight-hour shifts five days a week. The supervisor agreed to the altered schedule. However, six months later, the supervisor told the employee that his work performance had suffered and that he would have to return to the normal five-day, eight-hour shifts.
The employee protested, asserting that he needed at least one weekday off to take his grandfather to the hospital. In response, the supervisor offered to let him work a Tuesday through Saturday schedule. The employee declined this accommodation because he wanted to attend school on Saturdays. After discussing his options with HR, the employee learned that he could use FMLA leave to care for his grandfather. The employer approved him for one day of leave each week.
FMLA leave. After the employee began working his new schedule, the supervisor began harassing him, including belittling him in front of coworkers, micromanaging his day-to-day schedule, and refusing to assign him work on which bonuses primarily depended. Despite complaints to HR, the harassment continued and took a toll on the employee. Citing stress and anxiety, the employee asked for full-time FMLA, which the employer granted.
Terminated. Nearly a year after his leave had begun, the employer contacted the employee’s attorney to find out whether he planned on returning. It warned that if it did not hear from the employee by the end of the week, his employment would be terminated. The employee did not contact the company, so at the end of two weeks the employer terminated his employment.
In the meanwhile, the employee filed a charge with the EEOC alleging that the employer had discriminated against him based on his grandfather’s disability and had retaliated against him for complaining to HR. Subsequently, he filed suit against the employer. The employee first contended that the employer had discriminated against him in violation of the ADA for his association with his ailing grandfather. Second, he alleged that his supervisor retaliated against him for complaining to HR and for filing the complaint with the EEOC. The district court granted the employer’s motion for summary judgment. This appeal ensued.
Associational discrimination claim. The based his associational disability claim on a “distraction situation,” which arises when “the employee is somewhat inattentive at work because his spouse or child has a disability that requires his attention, yet is not so inattentive that to perform to his employer’s satisfaction he would need an accommodation.” However, the Seventh Circuit found that there was no evidence in the record to support a distraction situation.
The employee did not present any evidence that he was distracted at work, that the employer regarded him as distracted, or that the employer took any action against him in retaliation for any real or imagined distraction. Indeed, observed the court, the evidence indicated that he put forward a strong performance on the job until he was switched to a four-day schedule to accommodate his need to care for his grandfather. Further, the record showed that the employer made ample efforts to accommodate the employee’s need to care for his grandfather. Thus, the employee failed to put forward a prima facie case of associational discrimination under the ADA.
Moreover, the employee failed to show that he suffered any adverse employment action. Most of his complaint concerned the supervisor’s general rudeness toward him, including interrupting a conversation with a coworker, threatening to report him when he asked to leave work early, and giving him an “average” performance rating. Although the employee’s bonus was affected by the supervisor’s conduct, it did not amount to an adverse employment action since he admitted that he received a bonus.
De facto demotion. The employee also pointed to a change in his mix of work assignments as evidence of discrimination. The record in fact showed that the supervisor systemically assigned him less and less R&D work. Caselaw has established that a de facto demotion can be an adverse employment action for purposes of the ADA. But in this case, the changes in the employee’s job involved a simple shift in the balance of his job responsibilities, not a wholesale change in duties. The facts showed that he remained in the same job position, in the same department, and at the same desk. Thus, the district court correctly granted summary judgment in favor of the employer on the employee’s associational discrimination claim.
Retaliation claim. The employee’s retaliation claim fared no better. He failed to show he suffered an adverse employment action as a result of his internal complaints to the employer regarding harassment by his supervisor for taking FMLA leave to care for his grandfather. No reasonable jury could find that the employer ended his employment in retaliation for his complaints, since it was undisputed that he took a full year of leave, and the employer provided him with notice that he would be fired if he did not provide notice of his intention to return to work within two weeks.
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