Disability Discrimination Claims May Proceed against Former Employer, Federal Court Rules
An employee fired shortly after notifying her employer of her upcoming surgery and expected need for recovery time raised triable discrimination claims under the Americans with Disabilities Act and Tennessee law, a federal district court in Tennessee has ruled. Dunn v. Chattanooga Publ’g Co., No. 1:12-cv-00252 (E.D. Tenn. Jan. 8, 2014). The court denied the former employer’s summary judgment motion. The court, however, granted the employer’s motion for summary judgment on the employee’s Family and Medical Leave Act claim, finding the employee was not eligible for leave.
Debra Dunn began working for Chattanooga Publishing Company (“CPC”) in September 2010 as administrative assistant to Russell Lively, controller and director of operations. In spring 2011, Dunn told Lively she was diagnosed with cancer. She then underwent chemotherapy, using accrued sick leave to attend chemotherapy sessions. Dunn also worked a shorter schedule, but worked through her lunch hour to accommodate her shorter hours. At the time, Lively expressed no dissatisfaction with this schedule nor did CPC allege Dunn failed to complete any tasks as a result of it.
Following chemotherapy, Dunn was to undergo surgery, but her surgery was delayed numerous times for “blood-level issues.” On August 18, 2011, Dunn informed Lively that her surgery would be scheduled in September, after her one-year employment anniversary, which would enable her to take leave under the Family and Medical Leave Act (“FMLA”), and that she would be out from four weeks to two months for recovery. Dunn offered to train a temporary replacement while she was out for recovery and Lively asked her to produce a job description in case he made use of this suggestion. Later that day, Dunn e-mailed Lively that she had a pre-surgery appointment on September 1, 2011. Lively then called Dunn into his office and terminated her. According to Dunn, Lively told her that their arrangement was “just not working” and he needed “someone who can spend more hours here.” Lively, for his part, does not remember many specifics of the conversation beyond telling her “we didn’t have a good fit.” Although Lively told Dunn she would no longer be his assistant on August 18th, she was scheduled to remain his assistant until August 26th.
After her termination, Dunn filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), which issued her a Notice of Right to Sue. Dunn then filed a complaint alleging violations of the Tennessee Disability Act (“TDA”), Tenn. Code Ann. § 8-50-103, the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., and the FMLA, 29 U.S.C. § 601, et seq.
CPC filed a motion to dismiss Dunn’s FMLA claim, which the trial court granted because Dunn had not worked for the employer for at least 12 months, and, therefore, was not covered by the statute. (On this issue, the U.S. Court of Appeals for the Eleventh Circuit, which has jurisdiction over Alabama, Florida, and Georgia, has ruled to the contrary. For more on that decision, see our article,Workers Not Yet Eligible for FMLA are Protected from Interference and Retaliation, Federal Court Rules.) Accordingly, only Dunn’s TDA and ADA claims remained.
The court decided that because the TDA mirrors the ADA and the same standards apply to both statutes, it need not bifurcate its analysis. Further, the court said, since the TDA does not require that a reasonable accommodation be made, it considered Dunn’s accommodation claim only under the ADA.
Under the ADA, a plaintiff must establish a prima facie case of discrimination by demonstrating:
1) he or she is disabled;
2) otherwise qualified for the position, with or without reasonable accommodation;
3) suffered an adverse employment decision;
4) the employer knew or had reason to know of the plaintiff’s disability; and
5) the position remained open while the employer sought other applicants or the disabled individual was replaced.
Once the plaintiff has established a prima facie case, the burden shifts to the defendant to articulate a non-discriminatory explanation for the employment action. If the defendant does so, the burden shifts back to the plaintiff to prove that the explanation is pretextual. The plaintiff ultimately bears the “burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.”
For the purposes of its summary judgment motion, CPC conceded that Dunn satisfied the first four prongs of a discriminatory discharge prima facie case.
As to the fifth prong, CPC argued summary judgment must be granted in its favor because Dunn’s position was not filled for 17 months following her termination, which, it asserted, suggests discrimination was not the cause of Dunn’s termination. The court disagreed, ruling Dunn need only show that the position remained unfilled and that CPC sought to fill it to establish the last prong of herprima facie case.
Further, the court found that the non-discriminatory reasons given in this case (both that Dunn was a subpar employee and that Lively needed a full-time assistant) are discredited by the 17-month break between Dunn’s termination and the hiring of a replacement. The court asked, “[H]ow did he manage during the period the position was unfilled?”
The court found significant that Dunn offered evidence demonstrating that the 17-month gap was “primarily due to litigation strategy” and not because of a downturn in business.
Accordingly, the court concluded Dunn has met her initial burden to establish aprima facie case of disability discrimination.
While CPC articulated a legitimate, non-discriminatory reason for Dunn’s termination – Lively was unsatisfied with her performance – the court determined that Dunn was able to demonstrate pretext. It ruled that as conflicting explanations existed for Dunn’s termination, Dunn has met her burden to demonstrate pretext and summary judgment was not appropriate.
The court also ruled that summary judgment was not appropriate on Dunn’s failure-to-accommodate claim. To the employer’s argument that Dunn had not exhausted her administrative remedies, the court ruled that Dunn had exhausted her administrative remedies by listing the date of her termination as the date of the allege discrimination in the EEOC charge because an inquiry into her discriminatory discharge claim would include her accommodation claim.
Next, the court ruled Dunn’s accommodation request for FMLA leave was not unreasonable and it found CPC failed to show that Dunn’s requested accommodation would have imposed an undue hardship.