The anti-discrimination laws do not prevent an employer from firing an employee who is not doing his/her job. They simply require that the employer have a legitimate non-discriminatory reason for the termination. “Non-discriminatory” means the employer has terminated similarly situated employees for the same reason and has not discriminated on the basis of protected group status. “Legitimate” means a non-pretexual reason that will withstand analysis. Employers often forget that their pre-discharge actions and, especially, their documents must support, not detract from, their stated legitimate reason for termination.
Yes, we are talking about documenting the reasons for discharge. Employers easily lose otherwise-ironclad cases with insufficient documentation. Employers who neglect to establish a sufficient “paper trail” supporting a termination decision are frequently blocked from summary judgment victories dismissing discrimination claims because their legitimate motivation proof is weak.
The “paper-less” employer is no match for a clever plaintiff. Let’s see how Robert Heyman trounced his employer, Queens Village Committee for Mental Health, a Jamaica, Queens-based facility providing medical and health care services to adolescents. Heyman v. Queens Village Committee, 1999 U.S. App. LEXIS 30720 (2d Cir., November 30, 1999).
Robert worked as a Medical Unit Administrator for less than 17 months. He was “summarily” (the employer’s word) terminated on November 8, 1995. A few weeks earlier, in October 1995, Robert disclosed to a Queens Village executive that he was diagnosed with lymphoma the preceding month. Robert asked this executive to “keep it between us,” advised that he would be beginning chemotherapy and would likely need “special accommodations [such as] leave and things like that.” The executive told Robert “don’t worry about it.” Robert was asymptomatic. The only accommodation request he made while employed was that he would be late for work on November 2, 1995 because he had “a medical appointment.” The employer granted that accommodation.
Robert’s disability claim was weak. He had no symptoms. He hadn’t missed any work days. He was not substantially limited in his ability to work. District Judge Sterling Johnson Jr. accordingly dismissed Robert’s federal ADA claim. Robert had a stronger argument under New York State law, which does not require a substantial limitation, but Judge Johnson declined to exercise jurisdiction over Robert’s non-federal disability claims once he dismissed Robert’s ADA claim. This ruling was not disturbed on appeal. The Second Circuit thus agreed Robert was not disabled under the ADA.
The case was not over by any means. Robert also claimed his employer “regarded” him as having an impairment that substantially limited his major life activity of working under an alternative ADA section, 42 U.S.C. Sec. 12102(2). He claimed he told two employer executives he had lymphoma shortly before the was fired. He also pointed to the only negative memorandum he received during 17 months’ employment. This solitary memo was given to him the day before he was fired. It identified “the level of time and commitment” needed to resolve certain internal problems as “an area of critical concern that must be addressed immediately.” No other job problem was mentioned. The following day, Robert went to a meeting where he claimed his lymphoma “was discussed” and was handed a termination notice effective the end of work that same day.
The employer conceded only the October 1995 conversation with the first executive. It denied a second executive had been told of Robert’s condition or that Robert’s illness was a topic of discussion during the termination meeting. It noted it had granted the only accommodation Robert requested and had no further information concerning the nature or extent of Robert’s condition that could possibly lead it to regard him as disabled. However, Robert had an additional argument. His immediate supervisor when he was hired, Associate Executive Director Gary McCormick, was himself diagnosed with lymphoma shortly thereafter. McCormick was often absent during the succeeding ten months and, in April 1995, died. Robert argued this employer’s prior experience with another employee diagnosed with lymphoma necessarily caused the employer to believe that Robert too would be absent frequently, and would similarly be unable to perform his job duties.
With McCormick’s death as the background, Robert returned to the only warning he received during his 17 months’ employment, the “level of time and commitment” memo he received the day before he was fired. That was, in the Second Circuit’s words, “the only contemporaneous evidence offering a reason for firing Heyman.” That single document was itself refuted by Robert’s affidavit noting he had “a sterling attendance record” and had actually “worked longer hours than required” during his final 52 weeks. This single warning notice, on this record, was converted into an expressed fear on the employer’s part that Robert’s lymphoma “would render him unable to complete his assigned tasks, as it had McCormick.”
The Second Circuit held Robert had established a prima facie case that he had been fired because his employer regarded him as disabled. This could be difficult to sustain at trial. Since the district court determination that Robert was not disabled was not overturned, Robert must show his employer believed he had an actual, non-limiting impairment that substantially limits a major life activity. The question is not whether Robert could or could not perform his particular Medical Unit Administrator job but whether his employer believed that his asymptomatic lymphoma would prevent him from performing an entire range of jobs. Robert’s only hope of satisfying that difficult burden is to show his employer was convinced his own post-diagnosis medical history would closely track McCormick’s, resulting in frequent absences, inability to perform job duties and, ultimately, death less than ten months later. This employer had only a single written warning handed to Robert the day before he was fired. Robert skillfully used this sole memo’s ambiguous “time and commitment” language and McCormick’s tragic circumstances to support his regarded-as-disabled claim. There was more. This employer never gave Robert his six-month and one-year performance evaluations as set forth in its Personnel Policy and Procedure Manual. Thus, the Second Circuit concluded Robert “never had received a negative performance evaluation during his [17 month] tenure.” He hadn’t received any evaluations, negative or positive, but the court chose to emphasize the total absence of “negative” evaluations.
This was dramatically underscored when the employer’s court papers listed seven separate other reasons why it fired Robert. According to the employer, Robert’s unit was “underperforming,” management and coworkers considered Robert “abrasive and arrogant,” he was unwilling or unable to train or motivate his staff, he exhibited racial or ethnic prejudice, he had not fired a nurse despite being directed to do so, and he was never present to supervise his staff properly. No documents or warnings supported any of these seven reasons. Thus, Robert successfully argued these were “mere pretexts manufactured [after the fact] for litigation purposes.” A proper “paper trail” would have made all the difference in this case. It would have supported the employer’s claimed legitimate reasons. It would have prevented Robert’s arguments that these reasons were all made up once litigation began and were obviously pretexts hiding a discriminatory motive. The three most important words in employment cases are documentation, documentation and documentation.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require and further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative.