ADA Litigation Lessons Surfaced From a Zamboni Machine
Employers, you see this movie all too often. You tolerate, and then ultimately discharge, a poor-performing employee who displays a bad attitude. Unfortunately, supervisors have not documented the employee’s prior instances of insubordinate and adversarial behavior. In addition, he hurt himself on the job, filed a workers’ compensation claim, and presented medical restrictions. In his mind, he cannot believe that he was the problem. So he sues, alleging that you failed to accommodate his disability and unlawfully terminated his employment.
The Seventh Circuit Court of Appeals’ ruling in Graham v. Arctic Zone Iceplex, LLC, just gave one employer’s familiar story a Hollywood ending. Although the case seems routine and does not break new ground in the law, it is a good example for employers of how to manage problem employees properly and avoid liability. The ultimate lesson: anyone can claim discrimination, but employers can win these cases even if they have not always followed best practices in documenting prior instances of an employee’s bad conduct. Making the best choice for the business sometimes means discharging a problem employee, even if there is no real paper trail presenting the history of the problems.
The Facts of Graham v. Arctic Zone Iceplex, LLC
Arctic Zone employed Graham at its ice rink facility as a Zamboni operator. (A Zamboni is a vehicle driven around an ice rink that resurfaces the ice.) Graham’s work history at Arctic Zone was poor. Customers and fellow Arctic Zone employees witnessed Graham’s attitude problems, resistance to directions, and difficulty with completing tasks on time. Despite his performance deficiencies and unsatisfactory behaviors, Arctic Zone never wrote Graham up for insubordination nor took other disciplinary action against him.
Just two months into his employment, in February 2015, Graham injured himself on the job. Graham returned to work with medical restrictions, including restrictions requiring him to sit to work. Arctic Zone accommodated this by assigning him the task of skate sharpening—a task Arctic Zone said could be completed from a seated position. Graham later alleged that the work required standing, but never informed Arctic Zone of his belief. When Graham transitioned back to full-time work, Arctic Zone assigned him to work in the evenings. Arctic Zone attributed the shift change from day work to evening work to the business’s “seasonal need,” but Graham characterized the shift as a demotion.
Just a few months later, Graham crashed a Zamboni into the ice rink’s wall. The accident resulted in more than two feet of jagged plastic protruding from the rink wall and onto the rink, which Arctic Zone considered to be a hazard to its customers. Arctic Zone fired Graham, stating the following reasons, as summarized by the court of appeals: “(1) poor attitude about his change in position; (2) poor attitude toward customers (citing customer complaints); (3) lack of timeliness in completing his duties; (4) insubordination with management; and (5) the Zamboni accident, which put customers in danger and caused Arctic Zone to lose revenue while the rink was being repaired.”
Graham’s ADA Lawsuit
Graham sued Arctic Zone for discrimination in violation of the Americans with Disabilities Act (ADA), alleging that Arctic Zone failed to reasonably accommodate his disability and that it terminated his employment because of his disability. The district court granted the employer’s motion for summary judgment and dismissed the case. Graham appealed the decision.
The United States Court of Appeal for the Seventh Circuit—with jurisdiction over employers in Illinois, Indiana, and Wisconsin—affirmed the district court’s ruling. With regard to Graham’s allegation that Arctic Zone had failed to reasonably accommodate him, the court emphasized that both employers and employees must engage in the interactive process. When an employee fails to provide “sufficient information to the employer to determine the necessary accommodations,” the employer will not be liable for a failure to accommodate claim. Here, Graham admitted that he did not tell Arctic Zone of his belief that the skate sharpening assignment did not fit his restrictions. Therefore, the court found this to be a “textbook example” of a situation in which an employer would not be liable for failure to accommodate due to the insufficient employee communication.
The Seventh Circuit also dismissed Graham’s arguments that Arctic Zone’s reasons for discharging him were pretextual. In doing so, the court rejected Graham’s argument that Arctic Zone had somehow forfeited its right to terminate his employment for behavioral problems because the company had never given him any formal notice or discipline before discharging him for those reasons. The court emphasized that Arctic Zone’s decision to let something slide without a formal response did not mean that the behavior had gone unnoticed.
The court also rejected Graham’s other arguments, which included an assertion that he had been treated worse than another employee who had been involved in a Zamboni accident. Although Arctic Zone did not terminate the employment of the other employee after his accident, the court noted that the other employee had a “sterling employment record prior to the accident” and that the other accident had not created a hazard for customers (whereas Graham’s accident had). Thus, Graham and the other employee were not “similarly situated” for purposes of supporting a legitimate claim of discrimination.
The decision in Graham v. Arctic Zone represents a practical analysis and a ruling that can be relied on by employers to defend ADA claims by discharged employees. The case is a powerful tool for employers because the trial court dismissed it before trial, concluding that Graham’s theories and evidence did not create a genuine factual dispute that justified a trial, and the appellate court panel agreed unanimously. Wisconsin employers may be particularly interested to see that fellow Wisconsinite, Judge Michael B. Brennan, who was appointed to the Seventh Circuit in May 2018, joined in this unanimous decision. This case reflects a pragmatic approach to dealing with these issues.
This case reflects recurring themes in ADA litigation that employers should keep in mind when defending ADA claims:
Both the employer and the employee must engage in the interactive process. Where an accommodation does not fit within an employee’s restriction, the employee is obligated to inform the employer. An employee who fails to give his or her employer sufficient information to accommodate a disability may be less likely to hold the employer liable.
The failure to have a history of formal discipline does not automatically suggest pretext when a termination decision is based on recurring bad behavior. The courts here did not even allow a trial on the issue of whether the employer’s stated reasons for discharging the employee concealed a discriminatory bias. An employee’s poor behavior can still be a basis for termination, despite the employer’s never having disciplined the employee for the behavior.
Not all workplace incidents are created equal. An employer can take into consideration how different incidents ultimately affect its business or customers. Also, an employer may want to consider the work history of an employee when taking disciplinary action. Such considerations contribute to whether employees are considered “similarly situated” for purposes of supporting a discrimination claim. Identifying how employees and situations being compared by a plaintiff differ can play a role in a court’s decision not to impose liability.
The ADA continues to be fertile ground for litigation.