Timing Is (Almost) Everything: The Adverse Employment Action Following Knowledge Of Disability
June 2, 2011
A recent decision from a United States District Court in Texas is a reminder of the risk created by an adverse employment action which follows closely in time the employer’s first knowledge of an employee’s disability or other protected characteristic. The situation where an employer learns of a disability, often through a leave request, just as it is about to impose discipline for performance problems or violations of policy is not at all uncommon. And it is very similar to the situation created when an employee who is about to be disciplined complains of discriminatory harassment. When such events occur, the employer is faced with a real dilemma: either impose the discipline and risk a retaliation or discrimination claim, or sit on the discipline for some undetermined period of time. Which course is best depends on a variety of facts and operational considerations. But one thing is certain. No action should be taken unless and until a complete and thorough investigation of the underlying performance issue or policy violation is completed. We have ridden the investigations hobby horse in other contexts. The Texas case plainly illustrates its importance in this context as well.
According to the Court’s opinion, a restaurant manager was discharged three days after he informed his supervisor that he had brain cancer and would need leave to seek treatment. The former manager sued for disability discrimination and for interference with his rights under the FMLA. The employer defended by arguing that it terminated the manager for improperly altering the time records of the employees who reported to him to deprive them of pay for time worked, a contention denied by the manager and at least some of the employees whose records were altered.
According to the Court’s opinion, which denied the employer’s motion for summary judgment, there were several holes in the employer’s argument. All of those holes were attributable to a poor investigation of whether the manager had in fact improperly altered time records to deprive employees of payment for time worked. For example, the Court noted that before the employer concluded the manager had committed a dischargeable offense, it never spoke to the employees whose records were altered, never spoke to the manager who altered the records, and never considered whether the time removed from the records was break time for which the employees failed to punch out. In addition, there was evidence suggesting that the plaintiff manager had been treated differently than other managers who engaged in the same conduct. Similar treatment for similar offenses is another basic principle of discharge and discipline investigations. All of these flaws could have been avoided through a proper investigation. The Court found that in light of these holes in the employer’s story, a reasonable jury could conclude that the employer did not have a good faith belief the manager had improperly altered time records, and could draw an inference of disability discrimination from the timing of the firing. That combination was enough to send the case to trial.