By Kathleen Kapusta, J.D. Although the 17 days between an employee’s accommodation request and his termination may have been insufficient itself to show pretext, his supervisor’s purported comment that she was unaware he suffered from depression when she hired him and evidence suggesting his performance was acceptable was enough to allow his ADA retaliation claim to proceed to trial, ruled a federal district court in Arizona. His failure-to-accommodate and wrongful termination claims failed, however (Stillman v. Column5 Consulting, L.L.C., April 19, 2016, Holland, H.). Hired by a consulting firm in 2010, the employee was directed to develop training materials for a client’s employees in Los Angeles and New York. After he presented training sessions in L.A. in April 2012, two of the client’s employees informed his employer that he had not done a particularly good job of presenting, that they had to effectively take over the class, and that they were very concerned. The employee’s supervisor claimed she was unaware of these complaints. He received average instructor performance ratings of 4.45 out of 5 for one session and 4.02 for a second. He then presented the training in New York and received a rating of 4.02. Panic attack. Three months later, while in the Philippines to conduct training, he experienced a panic attack. In a Skype conversation with his supervisor, he told her he was suffering from either anxiety or depression and could not continue the training. While the employee had a history of episodes of depression dating back to the early 1990s, at some point, his supervisor purportedly told him she did not know about his depression when she hired him. Upon his return home, he was diagnosed with depression, anxiety, and panic, and placed on medications. He returned to work a week later and requested as an accommodation that he not be assigned a job requiring travel for about a month. His supervisor asked for medical certification supporting the travel restriction. Termination. He was fired 17 days later, purportedly after his supervisor learned about performance problems during the New York training. His supervisor was also concerned that he might have fabricated the attendee evaluations of his performance. After his termination, he had another panic attack for which he was hospitalized and monitored for suicide ideation. He subsequently sued, asserting claims under the ADA. Disabled? The employer first argued that the employee was not disabled within the meaning of the ADA because his mental impairments were temporary as he was able to return to work approximately a week after being treated for his panic attack. This ignored the fact, however, that he suffered from episodic depression, which was not a temporary condition. Thus, it was at least possible his depression could be considered an ADA recognized impairment. Not substantially limited. But his mental impairments did not substantially limit his major life activities, said the court, pointing to his deposition testimony that he was able to continue functioning in his life activities during his depressive episodes. Further, after his panic attack he was able to complete a training session and returned to work without restrictions after nine days. Because he was not disabled for purposes of the ADA, his employer was entitled to summary judgment on his failure-to-accommodate and unlawful termination claims. Retaliation. As to the employee’s retaliation claim, the court, noting the 17 days between his accommodation request and his termination, found there was at least a question of fact as to causation. While the employer articulated a nondiscriminatory reason for terminating the employee—his performance issues and his supervisor’s lack of trust—he presented sufficient and substantial evidence of pretext. Pretext. The temporal proximity between his accommodation request and his termination may not have been enough by itself, the court observed, but the employee presented evidence beyond temporal proximity. First, although his employer insisted he was terminated because he did a poor job with the training, the class evaluations he received suggested otherwise. Further, there was a dispute as to what extent the client’s representative revised the New York training materials; specifically, whether she totally revised his training materials, or whether she simply rearranged some slides. Finally, his supervisor’s alleged comment that she did not know he suffered from depression when she hired him was also evidence of pretext. Accordingly, summary judgment was denied as to this claim.
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