Labor & Employment Law Daily Pre-termination hearing transcript supports claim employer failed to engage in interactive process
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Thursday, September 24, 2020

Pre-termination hearing transcript supports claim employer failed to engage in interactive process

By Brandi O. Brown, J.D.

A reasonable jury could find that the employer “affirmatively acted to avoid having to consider possible accommodations” for the employee, rather than fulfilling its obligation to participate in an interactive process that is “inherent in the statutory requirement.”

Citing failure to engage in the interactive process, as demonstrated in large part in the transcript of the pre-termination hearing, the Tenth Circuit partially reversed a lower court decision favoring an employer in a disability bias suit. Based on the evidence, a jury could conclude that the employer “affirmatively acted to avoid” the need to consider accommodations by foreclosing the employee’s ability to obtain medical paperwork and that it “essentially” ignored any accommodations she suggested (Aubrey v. Koppes, September 18, 2020, Ebel, D.).

Sudden, serious illness. During her two years of employment as an office technician with the Weld County Clerk and Recorder’s Office, the employee was promoted and was considered an exemplary worker. In late 2014, however, she developed Posterior Reversible Encephalopathy Syndrome, which is a rare, but reversible, medical condition. She became unable to work and was hospitalized for two weeks in January 2015. She then stayed in rehab for an additional two weeks. Her FMLA leave expired but the county continued to hold her position open. Under the county’s policy she was permitted up to six months total leave. Moreover, her supervisor exercised his discretion to extend her leave indefinitely.

Pre-termination hearing. On April 15, however, she received a notice, signed by the Clerk and Recorder (her supervisor) informing her that she had to attend a pre-termination hearing the next morning. It stated that the employer could not accommodate her restrictions, even though the clerk later testified that he did not, in fact, have any information about her medical problems or how long they might last. The notice also stated that she had the right to present updated information regarding her medical condition as it related to her ability to perform the essential functions of her position and she was asked for medical updates. However, with fewer than 24-hours’ notice, she was unable to obtain updated medical information.

At the hearing, which was transcribed, the employee was told that her termination had “nothing to do with” her job performance and, when she asked if this meant she was “automatically dismissed,” the employee was told it was an opportunity for her to tell them why she should not be. She told them she could return to work the next week if asked, but that she would need to be “somewhat retrained” and that there would be some things she could not do.

She asked for additional time to gather medical information, as well as the return-to-work certification that had not previously been requested. She also asked about the possibility of taking a demotion because she was aware that a position was available. Her request for that and for time to get her doctors’ responses garnered no response.

Termination with inaccuracies. A few days later she received notice that she was fired. The letter contained several inaccuracies relating to statements she allegedly made in the hearing (the transcript showed she had not made them). She filed suit under the ADA, Rehab Act, and state law. The district court granted the employer’s motion for summary judgment and she appealed.

Accommodations claim. On appeal, the Tenth Circuit reversed on two of the employee’s claims, concluding that the evidence should have gone to a jury. First, it explained that a reasonable jury could find the employer failed to engage in an interactive process with the employee in order to determine if there was a reasonable accommodation that would have allowed her to perform the essential functions of her job. “The obligation to participate in this interactive process,” the court explained, “is inherent in the statutory requirement that the employer offer a disabled, but otherwise qualified employee a reasonable accommodation.” The employee suggested three accommodations during the pre-termination hearing: additional time to obtain her physician’s certification that she could return; retraining; and reassignment to an open lower-level office technician position.

No effort to engage in interactive process. However, although the employer had the same obligation as the employee to engage in that process, the transcript of the hearing could allow a jury to conclude it made no effort to do so. A jury could conclude that the employer did not try to discover what the employee’s exact limitations were, nor whether there were any accommodations that might have enabled her to return. Rather, there was evidence that, even though the clerk contended she did not know what the employee’s limitations were prior to the hearing, she and her deputy had already determined that the employee could not perform any job in the office because of those limitations.

Moreover, a reasonable jury could also find the employer “foreclosed the possibility” that she would be able to obtain a fitness-for-duty certification by giving her notice of need for it before the meeting and then no time to obtain it afterwards, something that was also contrary to its normal practice. Rather than engage in an interactive dialogue, the court explained, a jury could conclude that the employer “affirmatively acted to avoid having to consider possible accommodations” by foreclosing the employee’s opportunity to obtain medical information and “essentially ignoring” any of the accommodations she suggested during the meeting.

Termination. Second, the appeals court concluded that the employee should be allowed to present her discrimination claim to a jury. A jury could find that the reasons the employer gave for firing the employee were unworthy of belief. In the termination letter, the employer stated that the employee made statements and claims during the hearing regarding her ability to return to work, statements that the transcript clearly belied. Moreover, the manner in which the hearing was noticed and then conducted could allow a jury to infer the employer acted with discriminatory animus.

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