Employment Law Daily No link between RIF and workers’ comp or disability; $1.6M award tossed
Thursday, August 25, 2016

No link between RIF and workers’ comp or disability; $1.6M award tossed

By Lorene D. Park, J.D. Because an employee lacked evidence that the decisionmaker who included him in a budget-crisis-based reduction in force (RIF) knew of his workers’ comp claim and he likewise failed to link his termination to his disability, neither his workers’ compensation retaliation claim nor his ADA claim should have gone to trial, ruled the Seventh Circuit, reversing in part a split judgment in this long-running case (Hillman v. City of Chicago, August 23, 2016, Sykes, D.). 1995 accommodation agreement. The employee began working for Chicago’s Parks District in 1973, later becoming a sanitation truck driver. In 1984 he developed cervical radiculopathy, a work-related injury causing pain, weakness, limited mobility, and loss of sensation in his right arm. In 1995, he entered an accommodation agreement with the city that allowed him to avoid repetitive work with his injured arm. He was reassigned to be chief timekeeper, and though he never performed all duties required by the job description, he performed the essential functions. New supervisor. In May 2000, the employee was put under a new supervisor, who assigned additional duties requiring repetitive use of his injured arm, exacerbating his condition. In July that year, for the first time in his career, the employee did not receive a merit raise. He finally informed his new supervisor he could not physically perform the additional duties. In response, the supervisor assigned him supervising timekeeper duties. New job description. Meanwhile, the employee’s attorney wrote to the employer asking that the 1995 accommodation agreement be honored. In response, the personnel liaison wrote a new job description for him. The first paragraph covered duties he had done as chief timekeeper; the second covered the reassigned duties of a supervising timekeeper. It also anticipated use of a new computerized payroll system. The second paragraph included tasks the employee could not physically perform. In August 2000, the liaison told him to report for a fitness-for-duty exam to reassess his accommodation. Around that time, his physician noted that his condition had worsened. Workers’ comp. On September 1, the employee was transferred to the construction division where he answered phones. That same day, he filed a workers’ comp claim. On October 1, he was again denied a merit raise. A week later, he was transferred to the transportation division where he again answered phones. He continued to see medical professionals in connection with his workers’ comp claim and, on December 1, he received a letter from the employer advising that "the most viable option for you is to apply for a Leave of Absence [] and to return to work when your physical condition allows you to perform the duties of your job title." In February 2001, a doctor cleared him to perform sedentary work, but the department’s assistant commissioner wrote "Cannot accommodate with restriction" on the discharge sheet. He noted the employee could be accommodated in the bureau of traffic services. Laid off. Cleared to work, the employee reported to traffic services and was given a temporary assignment involving menial duties, though his title was still chief timekeeper. Thereafter, he had a pattern of tardiness and absenteeism due to sick leave. He was again denied raises in 2002. When the city faced a serious budget shortfall and department heads had to identify positions to include in a RIF, the employee’s was selected. Both the chief timekeeper and supervising timekeeper positions were included because no one was performing them and the department’s transition to the new computerized payroll system made them obsolete. Final approval of the RIF was by an individual who did not know the employee had filed a workers’ comp claim. Two trials. In 2004, the employee filed suit claiming the city violated his rights under the First Amendment, the ADA, and state law. The judge allowed two claims to go to trial—discharge in retaliation for workers’ compensation and an ADA claim alleging he was denied raises and fired for requesting an accommodation. The jury returned a verdict for the city on the workers’ comp retaliation claim and the judge died before considering the ADA claim. A new judge granted a new trial. This time the jury returned a split verdict, awarding $2 million to the employee for workers’ comp retaliation and issuing an advisory verdict in favor of the city on the ADA claim. After post-trial motions, the court denied the city’s motion for judgment as a matter of law on the workers’ comp retaliation claim, though it did reduce damages to $1.6 million. It denied the employee’s motion for judgment on the ADA claim. Both parties appealed. No causal link to workers’ comp. Reversing in part, the appeals court found that the undisputed evidence showed the workers’ comp retaliation claim should not have reached a jury. To prevail, the employee had to show his workers’ comp claim was the "but-for" reason for his termination. That requires, at a minimum, that the decisionmaker knew that he intended to file, or had filed, a workers’ compensation claim, but here there was no such evidence at all. ADA claim fails on causation too. Rejecting the employee’s cross-appeals as to his ADA claim, the court found no reason to disturb the findings of fact after the bench trial because the employee failed to prove that his request for an accommodation was the "but-for" cause of the merit-pay increase denials and his inclusion in the RIF. In the appellate court’s view, the lower court’s findings were well supported by the record, including that the lack of raises followed excessive tardiness and absenteeism, and that the RIF was necessitated by a budget shortfall.

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