{"id":37747,"date":"2016-03-31T19:25:57","date_gmt":"2016-04-01T00:25:57","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/uncategorized\/terminating-employees-who-claim-they-are-disabled.html"},"modified":"2017-02-13T11:39:09","modified_gmt":"2017-02-13T16:39:09","slug":"terminating-employees-who-claim-they-are-disabled","status":"publish","type":"corporate","link":"https:\/\/corporate.findlaw.com\/litigation-disputes\/terminating-employees-who-claim-they-are-disabled.html","title":{"rendered":"Terminating Employees Who Claim They Are Disabled"},"content":{"rendered":"<section class=\"fl-gutenberg-byline\">\n    <div class=\"fl-gutenberg-byline-content\">\n                    <p><em>This article was edited and reviewed by <a href=\"https:\/\/www.findlaw.com\/company\/our-team.html\" rel=\"noopener\">FindLaw Attorney Writers<\/a><\/em><\/p>\n\n                | Last reviewed\n        <time>\n                            May 07, 2026\n                    <\/time>\n    <\/div>\n\n    \n    <div class=\"fl-gutenberg-byline-toggle fl-gutenberg-byline-legally-reviewed\">\n        <h2>\n            <button tabindex=\"0\" aria-expanded=\"false\">\n                <i class=\"fl-gutenberg-byline-icon\"><\/i>\n                Legally Reviewed\n            <\/button>\n        <\/h2>\n\n        <div class=\"fl-gutenberg-byline-toggle-content\">\n            <p><em>This article has been written and reviewed for legal accuracy, clarity, and style by <a href=\"https:\/\/www.findlaw.com\/company\/our-team.html\" rel=\"noopener\">FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with <a href=\"https:\/\/www.findlaw.com\/company\/company-history\/editorial-policy.html\" rel=\"noopener\">our editorial standards<\/a>.<\/em><\/p>\n\n        <\/div>\n    <\/div>\n\n    <div class=\"fl-gutenberg-byline-toggle fl-gutenberg-byline-fast-checked\">\n        <h2>\n            <button tabindex=\"0\" aria-expanded=\"false\">\n                <i class=\"fl-gutenberg-byline-icon\"><\/i>\n                Fact-Checked\n            <\/button>\n        <\/h2>\n\n        <div class=\"fl-gutenberg-byline-toggle-content\">\n            <p><em>The last updated date refers to the last time this article was reviewed by FindLaw or one of our <a href=\"https:\/\/www.findlaw.com\/company\/our-team\/contributing-authors.html\" rel=\"noopener\">contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please <a href=\"https:\/\/lawyers.findlaw.com\/?fli=bylinelink\" rel=\"noopener\">contact an attorney in your area<\/a>.<\/em><\/p>\n\n        <\/div>\n    <\/div>\n<\/section>\n\n\n\n<p>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. \u201cNon-discriminatory\u201d means the employer has terminated similarly situated employees for the same reason and has not discriminated on the basis of protected group status. \u201cLegitimate\u201d 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.<\/p>\n<p><b>Documentation is Critical<\/b><\/p>\n<p>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 \u201cpaper trail\u201d supporting a termination decision are frequently blocked from summary judgment victories dismissing discrimination claims because their legitimate motivation proof is weak.<\/p>\n<p>The \u201cpaper-less\u201d employer is no match for a clever plaintiff. Let\u2019s 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. <i><a title=\"Heyman v. Queens Village Committee For Mental Health For Jamaica Community Adolescent Program Inc\" href=\"https:\/\/caselaw.findlaw.com\/court\/us-2nd-circuit\/1082164.html\" target=\"_blank\" rel=\"noopener\">Heyman v. Queens Village Committee<\/a><\/i>, 1999 U.S. App. LEXIS 30720 (2d Cir., November 30, 1999).<\/p>\n<p>Robert worked as a Medical Unit Administrator for less than 17 months. He was \u201csummarily\u201d (the employer\u2019s 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 \u201ckeep it between us,\u201d advised that he would be beginning chemotherapy and would likely need \u201c<a title=\"EEOC Guidance On ADA Reasonable Accommodation\" href=\"https:\/\/corporate.findlaw.com\/litigation-disputes\/eeoc-guidance-on-ada-reasonable-accommodation.html\" target=\"_blank\">special accommodations<\/a> [such as] leave and things like that.\u201d The executive told Robert \u201cdon\u2019t worry about it.\u201d 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 \u201ca medical appointment.\u201d The employer granted that accommodation.<\/p>\n<p>Robert\u2019s disability claim was weak. He had no symptoms. He hadn\u2019t missed any work days. He was not substantially limited in his ability to work. District Judge Sterling Johnson Jr. accordingly dismissed Robert\u2019s 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\u2019s non-federal disability claims once he dismissed Robert\u2019s ADA claim. This ruling was not disturbed on appeal. The Second Circuit thus agreed Robert was not disabled under the ADA.<\/p>\n<p><b>Twist Ending<\/b><\/p>\n<p>The case was not over by any means. Robert also claimed his employer \u201cregarded\u201d 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\u2019 employment. This solitary memo was given to him the day before he was fired. It identified \u201cthe level of time and commitment\u201d needed to resolve certain internal problems as \u201can area of critical concern that must be addressed immediately.\u201d No other job problem was mentioned. The following day, Robert went to a meeting where he claimed his lymphoma \u201cwas discussed\u201d and was handed a termination notice effective the end of work that same day.<\/p>\n<p>The employer conceded only the October 1995 conversation with the first executive. It denied a second executive had been told of Robert\u2019s condition or that Robert\u2019s 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\u2019s 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\u2019s 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 <a title=\"Light Duty Jobs and the ADA\" href=\"https:\/\/corporate.findlaw.com\/litigation-disputes\/light-duty-jobs-and-the-ada.html\" target=\"_blank\">unable to perform his job duties<\/a>.<\/p>\n<p>With McCormick\u2019s death as the background, Robert returned to the only warning he received during his 17 months\u2019 employment, the \u201clevel of time and commitment\u201d memo he received the day before he was fired. That was, in the Second Circuit\u2019s words, \u201cthe only contemporaneous evidence offering a reason for firing Heyman.\u201d That single document was itself refuted by Robert\u2019s affidavit noting he had \u201ca sterling attendance record\u201d and had actually \u201cworked longer hours than required\u201d during his final 52 weeks. This single warning notice, on this record, was converted into an expressed fear on the employer\u2019s part that Robert\u2019s lymphoma \u201cwould render him unable to complete his assigned tasks, as it had McCormick.\u201d<\/p>\n<p>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\u2019s only hope of satisfying that difficult burden is to show his employer was convinced his own post-diagnosis medical history would closely track McCormick\u2019s, 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\u2019s ambiguous \u201ctime and commitment\u201d language and McCormick\u2019s 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 <a title=\"What Should Be Included In Your Personnel Handbook I\" href=\"https:\/\/corporate.findlaw.com\/human-resources\/what-should-be-included-in-your-personnel-handbook-i.html\" target=\"_blank\">Personnel Policy and Procedure Manual<\/a>. Thus, the Second Circuit concluded Robert \u201cnever had received a negative performance evaluation during his [17 month] tenure.\u201d He hadn\u2019t received any evaluations, negative or positive, but the court chose to emphasize the total absence of \u201cnegative\u201d evaluations.<\/p>\n<p>This was dramatically underscored when the employer\u2019s court papers listed seven separate other reasons why it fired Robert. According to the employer, Robert\u2019s unit was \u201cunderperforming,\u201d management and coworkers considered Robert \u201cabrasive and arrogant,\u201d 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 \u201cmere pretexts manufactured [after the fact] for litigation purposes.\u201d A proper \u201cpaper trail\u201d would have made all the difference in this case. It would have supported the employer\u2019s claimed legitimate reasons. It would have prevented Robert\u2019s 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.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>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. \u201cNon-discriminatory\u201d means the &#8230;<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_categories":[6522,6526,6520],"class_list":["post-37747","corporate","type-corporate","status-publish","hentry","corporate_categories-litigation-disputes__civil-litigation","corporate_categories-litigation-disputes__civil-litigation__civil-rights","corporate_categories-litigation-disputes"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate\/37747","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=37747"}],"wp:term":[{"taxonomy":"corporate_categories","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_categories?post=37747"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}