Labor & Employment Law Daily Reference to EEOC charge in termination recommendation supports university employee’s retaliation claim
Thursday, April 15, 2021

Reference to EEOC charge in termination recommendation supports university employee’s retaliation claim

By Kathleen Kapusta, J.D.

However, because there was no evidence the employee’s five-pound lifting restriction was intended to be permanent, his discrimination claim failed.

The discharge of a university employee three months after he filed an EEOC charge, together with a statement in a letter to HR by the executive director who recommend his termination that the employee, while presenting a letter from the EEOC had stated “I told yall that I wasn’t playing,” was enough to support a finding of prima facie causation on his Rehab Act and ADA retaliation claims. Denying the university’s motion for summary judgment, a federal court in Mississippi also found sufficient evidence of pretext. His discrimination claim failed, however, as he offered no evidence a five pound lifting restriction issued by an ER doctor was intended to be permanent (Stratton v. Jackson State University, April 6, 2021, Lee, T.).

Lifting restriction. The property/inventory control specialist, who went to the ER in September 2016 complaining of back and leg pain, was diagnosed with sciatica and given prescriptions for a week’s supply of hydrocodone and methylprednisolone. The ER doctor released him to return to work in four days but limited his lifting to five pounds. According to the employee, however, his supervisor regularly verbally instructed him to perform tasks that exceeded this restriction and in March 2018, a year and a half after his ER visit, he claimed he was injured as a result.

Second ER visit. In August, he again visited the ER and was again given a medical excuse allowing him to return to work with a five-pound lifting restriction that, he alleged, his supervisor continued to ignore. In December, he filed an EEOC charge and in February, he was issued a final written warning for poor conduct/rule violation. Two weeks later, he was fired.

Retaliation. While the university conceded that the employee engaged in protected activity when he filed his EEOC charge, and that he was fired three months later, it argued that he failed to show any causal connection between the two events. Disagreeing, the court found this three-month time period sufficient to establish causation, especially when considered together with the March 2019 letter to HR from the executive director who recommended the employee’s termination. In that letter, the executive director noted that the had allegedly “brought a letter into the office from the EEOC to the Property Manager and verbally expressed that ‘I told yall that I wasn’t playing.’”

Pretext. Also rejected was the university’s contention that the employee failed to show its proffered reason for his termination was pretextual. According to the university, the employee “was prone to temperamental outbursts, convinced that his supervisor and co-workers were ‘out to get him,’ and … his erratic, unprofessional, and threatening behavior got progressively worse during the course of his employment with JSU”, which was frightening to his coworkers, and which culminated in the final incident in which he was talking on his phone using obscenities.

Not only was the employee’s supervisor’s recollection of events involving the employee poor and vague, the executive director’s deposition testimony was inconsistent with that of the supervisor’s as well as with his own recommendation letter. And while the HR head described in a letter some interactions with the employee, it contained vague references to his personal problems with no explanation as to how they may have related to his job performance. The university’s evidence alone, said the court, “was probably sufficient in itself to create an issue of fact as to pretext. Adding plaintiff’s affidavit to the mix makes this certain.”

Discrimination. As to his discrimination claim, the employee alleged he was continuously disabled from his first ER visit in September 2016 to the time of his termination two and a half years later because he had never been released from the five pound lifting restriction in the ER doctor’s return-to-work medical excuse. However, the court observed, he “offered no evidence that this lifting restriction, issued by a doctor who saw him briefly on a single occasion – was intended to be permanent,” and there was no evidence to support such an inference.

Instead, the evidence showed that when the employee went to the ER in January 2018 complaining of back pain, he was given a five-pound lifting restriction for a period of five to seven days, which to the court suggested that he was not under an existing lifting restriction and the lifting restriction imposed at that time would not last beyond one week.

September restriction. And while the court observed that a five-pound lifting restriction would qualify as substantially limiting a major life activity, and a limitation does not have to be permanent to be disability under the ADA, there was no evidence the September 2016 restriction was still in effect at the time of the employee’s termination.

August restriction. Nor was there any evidence as to how long the five-pound lifting restriction the employee was given after his August 2018 visit was to remain in effect or even what diagnosis or specific symptoms prompted the restriction. Accordingly, the court granted summary judgment against this claim.

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