All right. It is the top of the hour, so we will go ahead and get started with today''s webinar session. Pretext Cases: Sound Business Decision or Discriminatory Action? My name is Peter Berg. I am the Project Coordinator of Technical Assistance and Employer Outreach with the Great Lakes ADA Center. This webinar this afternoon is a product, project of the Great Lakes ADA Center. The Great Lakes ADA Center is part of a National Network of ADA Centers funded through the U.S. Department of Education''s National Institute on Disability and Rehabilitation Research, NIDRR. Today''s session will include an opportunity for questions and answers from participants. And we will go ahead and get started with today''s sessions. We have one speaker today that those of you who have participated in the past will be familiar with his voice and his name, and we have one speaker today that will be new to us. So our first speaker is Alan Goldstein. Alan is a Senior Attorney with Equip for Equality. Equip for Equality is the State of Illinois''s protection and advocacy service. He also serves as the manager of the Illinois ADA Project, which is a project that is funded through the Great Lakes ADA Center with funds from the U.S. Department of Education. Alan has been practicing law for over 20 years, and for the past 15, he has been practicing in the area of disability rights. Alan has presented to and continues to present to a wide variety of audiences, including employers, businesses, government agencies, individuals with disabilities, and organizations that work with individuals with disabilities. Also joining us today is Brian East. Brian is a graduate of the University of Texas School of Law. He spent a few years in legal aid and then worked 14 years in private practice before he joined Advocacy, Inc., which is a nonprofit organization advocating for the rights of people with disabilities. Brian has handled a number of cases in the federal and state court levels. As well, he has lectured and written extensively in this arena. So at this point, I will go ahead and turn the session over to Alan. Go ahead, Alan.
Okay. Well, thank you, Peter, but actually, I am going to turn it over to Brian. Sorry for the confusion. Brian is actually going to go first, so I will turn it over to Brian.
Thanks, Alan and Peter. We are going to be talking here today about pretext, which, as we will see, is simply a way to prove that disability was the real cause of an employer''s actions against an employee when the employer doesn''t admit it. So that is what we are going to be talking about. I did want to say one thing about the title of this webinar. It is Pretext Cases under the ADA: Sound Business Decision or Discriminatory Action? And I would just say that it might be more accurate to say lawful business decision or discriminatory action because we are not really talking about what is sound in the sense of sound business judgment, whether it is a good idea to take some action, whether it would have been smarter to do something else by the employer. That is not what we are looking at here. We are really looking at is the employer taking action because of a disability in a way that violates federal law. So we have the outline here in front of us on the slide. We are going to be talking about the various theories of liability briefly, the different kind of evidence that might exist as a general proposition, and then something called the McDonnell Douglas burden shifting formula, which you don''t need to know in detail but which gives us the basis for this pretext rule. We are going to talk about what pretext is, how it is shown, some exceptions to it, the honest belief rule, and then is pretext enough and some resources. We also have a hypothetical case that we are going to work through, depending on our time, to sort of show how these issues we are talking about in the abstract play out in the real world. So let''s go to the next slide, actually, maybe two slides, the next one after that. And we have a slide entitled Protected Classes. And as this reflects, everybody in the U.S. is a member of a protected class because everybody has a race, everybody has a gender. But by the same token, not everybody has a disability so we are going to be focusing on the protected class of a person with a disability as that is defined under the ADA and the Rehabilitation Act. Now, there are many state laws that also have parallel provisions, so this may be a relevant discussion for them, but state laws vary quite a bit, so we are going to be really focusing on the ADA and the Rehab Act. The Rehabilitation Act provisions are substantively very much the same as the ADA, so a lot of times for brevity, I will just be talking about the ADA, but you be hearing me as if I am saying the ADA or the Rehabilitation Act. Okay. The next slide we have is The Anatomy of an Employment Discrimination Lawsuit. This is just sort of a description of the steps that are filed or followed procedurally. So we have a charge of discrimination that is filed with the EEOC or a fair employment practices agency. The EEOC may conduct a mediation if it is agreed to by the parties. They will investigate it if it doesn''t settle at a mediation. And in the end, if they find reason to believe that discrimination, unlawful discrimination occurred, they will attempt to conciliate the matter. If there is no resolution, the charging party is then given a notice of right to sue, and that means they have to go to court within a short period after receiving that, and they also cannot go to court until they receive it under the ADA and at least Section 501 of the Rehab Act. And then once in court, there is various discovery where the parties exchange information, and they are often written discovery that send questions that have to be answered under oath by each party, depositions, there will be documents produced, et cetera. And then for purposes of our discussion today, the next stage is what is called the motion for summary judgment, and that is an effort to attempt to determine part of the case without it going to the jury. So the judge will decide a particular issue. That is typically a motion filed by the employer in these cases seeking to have the judge dismiss the case and not send it on to trial. But it can be something that is filed by the employee as well. And it is, and it is at the summary judgment stage that a lot of what we are going to be talking about at pretext becomes really important. Okay. The next slide reflects that there are Three Legal Theories of ADA Employment Discrimination. At least three. We are not going to be talking about some of the more narrow bases, but in general, there is disparate treatment, disparate impact, and failure to accommodate. Disparate treatment is sort of the traditional type of discrimination, treating someone differently, and this is, as you see, will be the focus of the presentation. Disparate impact is a workplace rule that is neutral on its face but has a disproportionate impact on members of a protected class. And then failure to accommodate is the employer failing to provide a reasonable accommodation that is necessary for the employee to have equal opportunities and ability to do the job. The practical tip at the bottom is important because in the case law, we sometimes see the plaintiff arguing a certain type of analysis and the court saying that this is a different kind of case than the one that analysis belongs to. So it really, it does make a difference how the court is going to work through the evidence whether it is in one of these three categories. Okay. The next slide is focusing on Disparate Treatment. And as I said, that is going to be the focus of our presentation today. There is a quote from Justice Stewart on the Supreme Court, where he says it is most easily understood type of discrimination. Treats people differently than others because of their and I would insert the general category of protected class. So it can be because of their disability, even though at the time he was writing that is not what the protected class included. So the issue, really, in these cases is what was the employer''s motivation for its decision that the employee didn''t like? Was it disability? Was that the reason for it? Or was it some other motive that may not be illegal? So motivation is really what we are looking at because the law says you can''t discriminate because of disability. So that "because of" piece is really what we are looking at. The next slide gets into what I mentioned before, this burden-shifting formula from McDonnell Douglas. And we don''t need to go into it in great detail. I will just say that, you know, in some cases, the employer admits that it took an action because of a disability. That is probably not true anymore in Title VII cases. Maybe it was when that was passed in ''64. They might admit that they took some action because of race. Now employers aren''t going to admit that the action they took was because of race. But in a disability case, occasionally they will. They may say, Joe, I am going to have to let you go because I just don''t think you can do the job because of your disability. That may be unlawful. That may not be. It remains to be seen. But the question is what do we do when the employer does not admit that disability was the reason? And what if the employee thinks I think this is really because of my disability and the employer says no, it wasn''t. How do you get to the bottom of that? So the Supreme Court recognized that it is difficult to get into the employer''s mind, and they created this alternative what they call "indirect" method for proving what the real reason was. And this is a formula that shifts the burden back and forth between the plaintiff and the defendant. That is why they call it the burden-shifting formula. And it was set out in the McDonnell Douglas case, which is cited at the bottom of this slide, and kind of refined in a later case called Burdine. But there is basically three steps. In the first step, the plaintiff has to show a prima facie case. The courts are not exactly consistent on what that means, but we know some of the things it means, and this is what this slide is reflecting. They have to show that they suffered, that they had a disability, they had some kind of adverse or negative action taken against them and here in the bullet points are some of the kinds of negative actions that are taken against them. They also have to show that they are qualified, that is, able to do the job or do the job with accommodations. And then the fourth point of the prima facie case is the one that varies. Sometimes courts say you have to show the person they hired in your place, if it is a firing case, was outside of the class of people with disabilities. Various ways that is formulated. But let''s move on to the next slide. Let''s say the plaintiff has shown this prima facie case. Then it is up to the employer to come forward with a legitimate nondiscriminatory reason for its actions. So the first two listed on these bullet points are, I would argue are not exactly legitimate nondiscriminatory actions. They are more like a defense. Because as I said, under prima facie case, the plaintiff has to show that they have a disability and therefore, if the employer shows they do not, then they are going to win the case, whatever the motivation was because the person is not protected. Likewise, if the employee cannot do the job with or without accommodations, then the employer is likely to win the case. But these last two really give examples of sort of paradigm, legitimate nondiscriminatory reasons. That is, reasons that at least on the face of them sound like they are not about disability. The third bullet point is a reduction in force. So let''s say the employer says we are going to have to lay off 10% of our staff because of budget cuts, because of the economy, et cetera. So that means we are going to have to lay off 17 people, and here are the 17. That doesn''t look like it is discriminatory on the face. It looks like they had to cut costs, and that is how they chose to do it. As we will see, it could be discriminatory, but that is, on the face of it, a legitimate nondiscriminatory reason. And at this stage, the courts don''t inquire very deeply. The last bullet point is that they consistently enforce their policy. So let''s say that this is really suggesting that the employer is saying that I didn''t fire you because of your disability, I fired you because you did something wrong. You were either a poor worker or you engaged in misconduct. And so that is the nature of this legitimate nondiscriminatory reason. It is not about disability, they say, it is about misconduct or poor performance. Okay. So let''s say the plaintiff has put on their prima facie case of disability, they qualify that some adverse action was taken, and something else suggesting discrimination. The employer comes forward with legitimate nondiscriminatory reasons like we have just been talking about. So now what happens? It shifts back to the plaintiff, and they can still survive summary judgment and get to trial if they can show that the legitimate nondiscriminatory reason was a pretext and that the real reason was disability discrimination. There is a lot of ways to show pretext, but that is the subject of this webinar, so it is sort of taking a long-running start to focus on the issue. There is a definition of pretext here that is often repeated: such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the proffered legitimate reasons that make them unworthy of belief and, therefore, suggest that there really was a discriminatory reason. So that is what we are talking about, when it comes back to the plaintiff, how do they show that that legitimate nondiscriminatory reason wasn''t really the real reason? So let''s have the next slide here. The next slide is just a list of some of the kinds of cases in which this pretext analysis comes up -- oh, I think I jumped ahead. Sorry. Yeah. So the point, the couple of things I want to say about this slide. One is the reference in the middle of it to circumstantial evidence. In a pretext case, we are usually talking about circumstantial evidence. That is not an admission, typically, but some other information that we have that is inconsistent with the legitimate nondiscriminatory reason. And the last bullet point on this slide I think is an important one. The courts recognize that sometimes circumstantial evidence is even more persuasive than direct evidence. You know, you sort of ask how can that be, but direct evidence might be eye witness testimony, and yet we know eye witness testimony is sometimes wrong, for good motive or bad motive, and the circumstantial evidence can be really compelling, depending on what it is and how much there is. So the next slide just shows the types of cases that pretext may come up in, failure to hire, wrongful firing, harassment, retaliation, hostile work environment. But I would say it is most common in the first two, failure to hire and fire, and retaliation. The next slide has some information from the EEOC''s Technical Assistance Manual about pretext, and it sort of repeat what we have already said about the legitimate nondiscriminatory reason and how to get behind that, how to figure out if that was real. And the last major bullet point says typically pretext is shown through evidence that the person was treated differently than similarly situated employees or that the explanation for the adverse action is not believable or that the person was subject to heightened scrutiny after they engaged in protected activity. That is usually about retaliation. When they say protected activity that is usually protected activity of complaining about discrimination, and then there is protection against retaliation. So the next slide, again, from the Technical Assistance Manual, gives a couple of examples, one in which there is -- it is suggested there is enough evidence in pretext and one in which there isn''t. In the first example, the employee says he got a bad job reference for filing an EEOC charge, so this is a retaliation case. And the company produces evidence that the negative statements were actually correct and therefore, the suggestion is this is not pretextual. The legitimate nondiscriminatory reason, which is you did a bad job, was not pretextual but was true. In the second example, the same evidence, the person gets this bad performance right after filing a complaint and says it is retaliatory, but here the employer doesn''t have any information about the job performance, and there is no explanation for why there is no documentation about it. So in the case like that, the court might find sufficient evidence of pretext and, therefore, turn the case over to the jury to decide. In the next slide, we are just going through some bullet-pointed examples of discipline-related pretext. And this is disciplinary action is a very common legitimate nondiscriminatory reason. So let''s say the employer says I fired you not because of your disability but because you were doing a lousy job. So how do you get behind it? One way is to disprove you were doing a lousy job. Now, as a practical matter, that probably requires more than the plaintiff''s own personal opinion, but if, for example, there are other supervisors that gave good evaluations or that before the protected conduct, the person always got good evaluations and now all of a sudden they are not, or their bad person was supposedly based on not servicing enough clients when, when you look at the numbers, the person was a very good performer compared to everybody else. So proving that the performance problems were not true suggests that that explanation is a lie designed to cover up for unlawful discrimination. Next bullet point on this slide is inconsistent discipline or documentation of problems. So what if the person really did do something wrong but everybody else does the same thing and only the plaintiff with a disability gets fired or gets demoted, let''s say. So we have inconsistent discipline which suggests that that was not the real reason. Also, courts expect to see documentation of disciplinary problems. So when the employer comes in and says this person has been a bad worker forever and they get an annual evaluation that says meets standards every time and doesn''t say anything bad, then there is some suggestion of pretext because the documentation doesn''t mirror what the legitimate nondiscriminatory reason is that is being offered by the employer. Departure from normal policies. Again, this can be similar. Let''s say you are supposed to go through a progressive disciplinary process of giving an oral warning, a written warning, putting someone on a work plan, putting them on probation, whatever, and that is normally done by this employer, but it was not done here. They just pulled the trigger right away. One explanation for that may have been that the misconduct by the plaintiff, by the employee, was really heinous, and it justified immediate action. But often that is not the case. Often, it is a typical kind of poor performance or misconduct that would subject them to this progressive plan, and it wasn''t done here. Again, it makes you wonder. Shifting explanations is a really common way of proving pretext. So for example, let''s say the supervisor, when he or she fires the plaintiff, says the reason I am firing you is you messed up on the annual report that you had to do. And then let''s say the person files a charge of discrimination saying I think it was really about my disability, and the employer writes a letter to the EEOC and says, well, it was because we have reason to believe they might have been stealing property. So now we have a completely different explanation than the first one given. And then let''s say during the course of the litigation that happens after the EEOC process they ask the supervisor under oath in a deposition what was the reason, and they give a completely new one, some other piece of misconduct or misbehavior or poor performance. So again, the courts become very suspicious when there are these shifting explanations, when you start off saying it was this reason, then you say oh, no, no, it was this reason. No, no, it was this reason. It sounds like that is all a lie. So shifting explanations is common. Use of a double standard in productivity or discipline, we talked about that briefly before. What if the person really did do this thing that wasn''t so great but everybody else does it and no one else got discipline for it and only the person with a disability did? Targeting the employee for extra work or scrutiny, denying equal benefits. There is just lots of cases on pretext, lots of cases, lots of ADA cases on pretext, and there are lots of reasons that courts look at as creating enough suspicion, enough inconsistency about that legitimate nondiscriminatory reason to say we are going to let the jury decide this case. The next slide is focusing not on disciplinary-related pretext but more disability related. So you could have an admission that a person''s disability or, let''s say, the leave or the medical leave they had to take because of their disability was a factor in their being fired, laid off, whatever. So there may be some sort of admission that is somewhat direct. But there may also be harassing or discriminatory language, pejorative statements about the person''s disability that sort of suggests that there is this atmosphere of bias and helps us figure out what the real reason might be behind the ultimate decision that the employer makes. Talking about concerns about the person''s health, about the impact on the employer''s health insurance, about customers not liking to deal with the plaintiff because of a disability, et cetera. So there are lots of different kinds of pretext that are more directly disability related. The next slide is more general, but it is along the same lines, some other examples. An inconsistent selection process. So there is, let''s say, a written process. This is slide 18, yeah. A written process that says how the selection of a person is to be made, and then it is not followed. Or evidence that the layoff really was discriminatory in some ways. And there is a whole lot of ways in which to show that a layoff, which on the face of it sounds like a nondiscriminatory reason, was discriminatory. As the courts basically say, economic downturn and layoff is nondiscriminatory, but employers cannot use that as an excuse to get rid of all the people they wish they could get rid of if they weren''t covered by federal civil rights laws. So we often see RIF (reduction in force), that impact more harshly on people with disabilities, people that are older, women, et cetera. So we are looking sort of behind that first explanation of a reduction in force to see what is really going on there. And then lies, lies, lies. Obviously, if you catch the employer in a lie about their explanation, that certainly shows pretext. So the next slide is sort of marking a separation, and it also has a reference to a discussion group on rhetorical theory, which apparently is called pretext, so I am not sure. Maybe that, I guess that is maybe the only visual aid we could come up with on this issue of pretext. But the next slide after that is sort of following on in this same vain, that is, that there are lots of ways to show pretext. And the plaintiff doesn''t have to pick any certain one. So the courts don''t say you didn''t prove that the offered reason was a lie, therefore, no pretext. Instead, you might show it is a lie, you might show it was a shifting explanation, you might show lots of things, and they are all available to the plaintiff. So it is really important for the employer to make sure that they are being truthful and consistent in the way they run their workplace in terms of discipline or adverse action and also in the way they explanation what they have done. The next slide suggests sort of two categories of pretext cases, one that is called more likely than not, and one that is called no basis in fact. And the more likely than not one is talking about the kinds of factual situations in which the employee doesn''t necessarily deny that they did whatever it was the employer says they did wrong. They are just saying that wasn''t the real reason. So again, we are looking at, well we are going to look at some of the examples of that. The other sort of general factual category is no basis in fact. This is where the employee is saying that the explanation given was wrong. So the next slide is talking about this more likely than not. So again, not necessarily disagreeing that the employee did this negative thing but arguing that that wasn''t the real reason for the adverse action. And one of the ways to show that is with temporal proximity. So let me give you an example. Let''s say a person wasn''t doing that great a job in their work, but the employer had not taken any action, had not put them on any disciplinary plan or anything like that. And the employee files a complaint with the EEOC saying that there is harassment against that person going on in the workplace. And then let''s say the next day the employer fires the person, and they say it was because they were engaging in poor, they were a poor performer. But the temporal proximity, the sort of suspect timing there, is going to be important because there, you know, it is the next day in my easy example, and it would be, you know, different in certain circumstances. And so the certain circumstances are set out in this case here. Here we have a person who is told that they are not doing a good job, and later they are reassigned to another job, and then several months later they are terminated. And so they go back to that statement that their supervisor made about you are not doing a good job or you are not able to do this kind of work or something. And the court says that doesn''t sound like pretext. And we can see this in the next slide, that doesn''t sound like pretext because there was a delay of several months. If the employer was really saying this person can''t do the job, I want to get rid of him because of a disability, one would expect them to take action fairly quickly, but in this example, the person stayed on for a number of months, did a different job, et cetera. So it begins to look like that the timing was not particularly suspect. So let''s see. The -- let me skip to slide 24, I think. And this is an example of sort of the flip side. And here we have personal care aid at a nursing home was terminated just days after disclosing that their condition was worsening and they were going to need an accommodation. And there had been one complaint against the person that apparently was justified, and the employer says I am firing this person because of the complaint. The employee says no, it is because of my disability. And here, because the employer took action so quickly after being told of the need for an accommodation, the court found sufficient suspicious timing. There is actually a recent case from this past summer in the 7th Circuit, up where Alan is, called Casna versus City of Loves Park. And there is this quote, Casna''s failing as an employee may have prompted the discharge, but so may have the employer''s intolerance of her complaints about discrimination. In this case, the chief recommended that she be fired the very day after she complained about hostility to her hearing impairment. Suspicious timing is rarely enough to create a trial-ble issue by itself but in an extreme case like this, where the adverse impact comes on the heels of the protected activity, it is enough. So and that is sort of paraphrasing the court there. So that is the deal with timing. If you have close timing, it can look suspicious. If it is a long time later, it doesnt, it typically doesn''t look suspicious. And there are variations on those themes. There are times when a long delay might still be suspicious, but we won''t get into that level at this point unless there is a question about it. The next slide that you have, let''s see, slide number 25. This is again on suspect timing, and here there were several disciplinary complaints, but nothing was done until the client or the plaintiff disclosed that they had breast cancer and needed leave for chemotherapy. So again, the timing is suspicious there. Let''s see. And then, Alan, I am about ready to pass it to you. Do you want me to do the next slide, 26, too, or do you want to take over at this point?
Thanks, Brian. I think we can just take a minute break and see if anyone has any questions that this they either want to speak using the mouthpiece and holding down the control key, or if you don''t have the headset and mouthpiece, feel free just to type in any questions you have. We will have dead air for just a little bit to see if anybody has any questions before we get to the second half. Okay. I see no questions, so on this slide with questions, we have pictures of Jim Carrey as the Riddler and I realize a riddle is a type of question, and Frank Gorshin. So my favorite question is always who is your favorite Riddler? Is it Jim Carrey or Frank Gorshin? Claudia mentioned that someone is typing, so we will pause another second for a question from. We are probably not going to discuss, asked if we are going to discuss the timing issue further. Probably not in depth. We are going to go on to other types of pretext. The brief has a little more detailed information on timing and a little deeper discussion. But as you can imagine, these cases are very factually specific. So one thing I want to point out, it is not necessarily that the termination has to come right on the heels of a disability disclosure or some conduct. Sometimes just the pattern of employer, adverse actions begins after the disclosure. So someone may disclose disability, and then all of a sudden they start getting written up and they stop having performance reviews, and the termination might not come for six months or a year after the disclosure, but the court will look at the pattern of conduct by the employer has changed after the disclosure. So that is how timing comes in. But I think we are going to move on to other types of pretext if there is no further questions. Okay. So again, with pretext, we are really trying to get at what is the real reason for the employer action? So in the Lentos case we have up there, the employer said that the person, the applicant, was not hired due to lying on the medical form. But the interviewer admitted that he was really not hired because of his disability. In this case, the applicant was from Bosnia and did not have strong English skills. For example, on the education and training section of their application, they only wrote the word Europa, which I believe he was referring to his country or his continent of origin, not the Carlos Santana album, but demonstrated that his English knowledge was not strong, although he never asked for any explanations or help. What became problematic for the applicant is he incorrectly put that he had no prior injuries and no work comp claims, worker''s compensation claims, although he did have a history of back problems and four worker''s compensation claims. So there was a question of, you know, whether his putting down the wrong information was intentional or not, and the company, he passed the company physical, so his back problems did not prevent him from passing a company physical, and the job it require a lot of physical work, bending, exerting up to a hundred pounds of force, but he passed the physical. And then when the company acquired medical records, they saw about the back injuries, and they told him we can''t hire you because you have these back problems. So when they withdrew their job offer, they really looked at disability issues. They didn''t say we can''t hire you because you gave us bad information, they said we can''t hire you because you have back problems. And the court found that there was enough to go to a jury because there was a question of fact whether he really could do the job at the time since he passed the pre-employment physical, and the company did not really have much evidence that the incorrect information was the real reason for the termination. It appeared much more related to the disability. The company claimed it strictly followed a policy of no lying on its applications, but there was no written policy, and there wasn''t much to support that, so because of the interview statement that it was disability, there was enough for pretext. The other case on this page is Lawson versus CSX Transportation, involved a transportation company that did not hire a person with Type 1 insulin-dependent diabetes. And they claimed we didn''t hire you not because of your diabetes but because you had a lack of a work history. And this person actually attended training and education at the company CSX, and the company ends up hiring 98% of the people who go through their training. The company knew of his diabetes and his need for insulin all through the training. And then when they didn''t hire him, they said it was because of his lack of a work history, but the hiring manager said well, it wasn''t a strict requirement, I could waive it whenever I wanted to, I just didn''t have enough to waive it for this person. But they had great test scores in the training school, 85%, 95% on most of their exams, and they were obviously qualified after successfully completing the training program. So the court said there was enough evidence of pretext to go to trial because that waiving the work history requirement was something the company could do freely. The next slide has Dark versus Curry, which had a heavy equipment operator who had epilepsy, and sometimes people with epilepsy have an aura which is kind of an indication to them mentally, just by the way things appear to them, that they may be having a seizure soon or that one is about to happen. This person had such an aura but went to work anyway, had a seizure while driving, but someone else in the truck with him took over, no one was hurt. The company said, well, we are terminating you because you engaged in misconduct. You drove when you knew it was unsafe to. They said he was unqualified and direct threat. But the company made an additional step. In addition to just terminating him for his misconduct, this company said we are also going to send you for a medical evaluation. And I can certainly understand why they did this. I think it was to see if he was a direct threat or something like that or unqualified. But the court said by sending him to a medical evaluation, the company demonstrated pretext because if they really terminated him for misconduct, there is no need for a medical examination. The court says an employer shouldn''t, "need a doctor''s opinion to assess if the plaintiff engaged in misconduct." So I certainly see how the company was in a tricky position there, but when we speak to companies, we always say if there is conduct that is problematic, focus on the conduct, not the disability. And in this case, focusing on both set the company up for a pretext claim. The next slide, number 29, we have Nodelman where a supervisor admitted that disability played a role in downsizing, and the company said, well, obviously, if that is a factor in downsizing, it is not just a straight downsizing. And the person who was terminated said that his supervisor told him that it was his injury, his disability, and the supervisor''s belief that the employee looked, quote, bad as a result that also led to them being terminated in the so-called downsizing. Obviously, with all those reasons, the court said that could be evidence of pretext. And likewise, a company that claimed there was an economic downturn but the facts demonstrated that the economic downturn really didn''t start until nine months after the termination and that other people from that same production line were found other jobs in the company, but this person wasn''t. And what was also interesting in this case, in Serwatka versus Rockwell, the person requested a reasonable accommodation of sedentary work, and the company denied that reasonable accommodation request then terminated her because of this supposed downturn in the economy, and then later said, oh, we can''t find another position for you because there is nothing that fits in with your accommodation needs, which is, of course, the same accommodation need the company denied her before terminating her. And often in these cases, when there is a denial of accommodation, I think that plays into the pretext analysis as well. So the next slide is we are looking at the falsity of the employer''s reason to show pretext. And while the types of proof that can be offered to demonstrate the falsity of the employer''s proffered, their offered reasons are broad, there is generally two categories we can squeeze them into. One, the employer is straight-out lying or two, when we look at an employer''s actions vis-a-vis employees with disabilities compared to employees without disabilities, we see that there is differing treatment. So for example, in the Zierkes case, I think I''m pronouncing that right, an employee who had one hand was terminated for poor performance. But as Brian alluded to earlier, they had excellent performance reviews before being terminated. And this fact raised, the court said did more than merely raise a skeptical brow as to the employer''s real reason for the termination, and therefore, there was enough issue of fact to get to a jury. And when this person was terminated, one of the or actually, at his deposition, one of the supervisors said that Mr. Zierke fell short of his idea of an ideal employee because he had only one hand, which would cause customers and fellow employees to fill ill at ease when dealing with him. Although he went on to say that handicapped, quote unquote handicapped people do not personally make me feel ill at ease, but I think other in the business may be ill at ease. And that again is one of the reasons why we were talking about earlier. The next case, Maslanka, this is a pharmaceutical company that claimed to fire an employee for violating a corporate travel policy. He let other people use his company credit card but then they would reimburse the company for that. And the employee, the plaintiff, the employee said they let me do that all the time, and then at one point they terminated me and said that was the reason why. The person really thought it was for his disability. And the court said, well, yes, it seemed like he was exempt from the policy, there were no problems with using the company card and reimbursing it previously, and the fact that all of a sudden that violation of a policy or that alleged violation led to his termination - wait, I take it back, I misspoke on this one. In this case, actually, the company said the plaintiff, the employee who was terminated, did not offer enough evidence that he was allowed to use the company credit card in the past. He said he had, but he did not produce the evidence. And therefore, for that reason, the court said there was no evidence of pretext, that it looks like he did violate the corporate policy, there was no evidence that others who had done the same thing were not terminated, and there was no evidence that the employee was excused from this policy. So for that reason, the termination was upheld, so I apologize for misspeaking there. And then on slide 32, a few more where we have the falsity of the employer''s reason. Obviously, in the Lawrence case, if there is evidence of poor performance reviews being authored after a termination decision, that is enough to show pretext. Employers, make sure you write the poor performance reviews before or reviews before making the termination decision if that is the reason. Don''t write them up after the fact. And the inconsistent disciplines evident in the Horsewood case against Kids R Us where a plaintiff was terminated for three write-ups but others were not and that was evidence for pretext there. And then in the Lien case, it is at the bottom of slide 32, this evidence that an employee''s performance reduced drastically got worse when her supervisor changed. And in this case, in the Lien case, the person had fibromyalgia and for five or six years they had excellent performance reviews, they fully met standards but then the new supervisor came in and said Sue, we need to look at your physical condition, see what we can do to make you more comfortable but make sure you get your job duties done. You need to be a little more upbeat and forget about those bad feet and aching back. And again, in this case, Kwik Trip also denied accommodations of breaks every hour that the employee''s doctor recommended. And all those things factored into the court finding that there was enough evidence of pretext to get to a jury. Next we have slide 33. An employee had a knee infection after surgery. And the supervisor said that they didn''t like the employee quote, unquote, gimping around and that the employee should, quote, lose the crutches, unquote, and these types of disability-related comments undercut the employer''s claims of poor performance and, thus, were evidence of pretext. In the case at the bottom of this slide, the plaintiff was missing two fingers on his left hand since birth and was denied a position in the local police department. And the department claimed that there were better qualified candidates, but a question of fact was raised because those involved in the hiring process referred to the plaintiff, the job applicant, as a quote, unquote cripple, and again, using these types of language, disparaging disability-related language, can help show pretext and show that there is more involved and it wasn''t just a straightforward decision on who is the most qualified candidate. There were other issues, disability-related issues, involved in the decision. Slide number 34 was a company terminated an employee with cancer. The reasons the company asserted were that they ran an unprofitable office and sent unprofessional emails. And the court held that those reasons might be legitimate, but there was evidence that other employees ran unprofitable offices and were not terminated, and there was also evidence that other employees sent unprofessional emails and were not terminated. And this person, the emails they sent, the court talks about a few of them. Mostly it was complaining about poor products they received from one of their suppliers, saying some of the things were as useless as a sundial at night, wouldn''t work as much more than purty, p-u-r-t-y, paperweights. And the court noted that another employee sent much more scathing emails and was not disciplined. And therefore, the court held there was enough evidence to get past summary judgment on the pretext issue. One thing, too, is this employee who was terminated was never given a performance review, and the court looked at that as a factor as well. In the Trnka case, t-r-n-k-a at the bottom of the slide, the plaintiff''s emails were more sexually explicit than the emails of other employees who were not disciplined, and the court held, therefore, there wasn''t evidence of pretext because her conduct was worse than similarly situated employees. And for people who are employees out there, it''s not a good idea to use company email to express dissatisfaction with a company. In Trnka, the person was actually on leave, but she had indicated some dissatisfaction with her job, saying I hate, all in capital letters, waking up every day. I hate what I am doing every minute I am here. The people are no fun. The work is tedious. My boss looks over my shoulder. And there were also some sexually explicit emails which, unfortunately, the court did not cite at length, so I can''t tell you what they said. And although the company allowed people limited personal use of emails, the court said this went far beyond that. So the termination was upheld. In the Thalos case, a pharmacy said it rejected an applicant with cerebral palsy saying he could not count pills quickly enough, and because of a mild speech impairment, there were communication barriers. But the applicant showed that she counted pills as quickly as other pharmacists or as slowly as other pharmacists, at the same speed as other pharmacists who were hired. And there were also several people with extremely thick foreign accents, as the court said. And they were hired as well. And the court said, well, that is evidence of pretext, and in this case, the pharmacy also made some statements telling the applicant we can''t accommodate your handicap, which was an interesting statement because the applicant never asked for any reasonable accommodation. The court held that that statement was also evidence of pretext. And now we are going to see is showing pretext enough? If you can just show the, the employer''s reason might not have been the real reason without showing any evidence of, any disability-related for our purposes, any disability-related factor in the decision making, isn''t it enough just to show their reason is wrong without showing some evidence of what the true motivation might be? And we get to the honest belief rule, something that scares plaintiffs'' lawyers, I think. At least it scares me a little bit. And the honest belief rule says if an employer honestly believes that his reason or its reasons are legitimate when those reasons are actually false, that might be enough. And the honest belief rule is not the rule everywhere. So there is what is called a split in circuits, so we are going to discuss that. And on one hand, courts might say the decision was not appropriate as the reasons for the adverse employment decision were false. Whether they were honestly believed or not, the reasons were bad reasons. So therefore, those are courts that don''t ascribe to the honest belief rule. Other courts and the Seventh Circuit is one of these courts, says, well, if the employer honestly believed the reasons and there was no unlawful motivation and remember in pretext going back to where Brian talked about at the beginning, we are looking at what is the real motivation. And of course, being wrong doesn''t show motivation. It just shows a mistake as to facts, and pretext you need to show unlawful motivation. And in this earlier case, the Seventh Circuit said if you honestly explain the reasons behind your decision but the decision was ill informed or ill considered, your explanation is not pretext, there is no requirement that there is a reasonable basis for the honest belief. And the Seventh Circuit built on this in the case of Kariotis versus Navistar where the Seventh Circuit went to a strict application of the honest belief rule. And stated that if an employer honestly believes the reasons behind his decision, even if those beliefs are foolish, trivial, or baseless, then the employee will lose. In this case, an employee had trouble walking following knee surgery, was actually a knee replacement. And what happened was the employee, they were on, the person was on medical leave, and the employer just thought they were taking a long time to recover from a knee replacement because one of the supervisors said his mother didn''t take that long to recover from her knee replacement. So the company hired private investigators, who had no medical experience, taped the employee, and they said well, she walked a little uneven, but it looked like she can walk okay and she also can drive a car, so we think she is faking. The company never spoke with the employee''s doctor, never had their own medical expert examine the footage or anything. And the employee was terminated based on the report of the private investigator, who had no medical experience. And the person was actually terminated while still on disability leave, and the reasons given by the employer was that they had fraudulently, were fraudulently getting disability benefits. The employee had her doctor write a letter saying that it was preposterous to say that there was allegations of fraud in this case. The court spent a few paragraphs pointing out all the problems with the company''s investigation and all the things the company did wrong and should have done differently. But then went on to say the question is not whether the employer''s reason for the decision are right -- excuse me -- but whether the employer''s description of his reasons is honest. No federal rule requires just cause for discharges. So the court is really saying clearly, in this case, if the employer makes a lot of mistakes but still has an honest belief, then the employee is going to lose on a pretext claim. And I mean, I would argue to a certain point, if you know, if there is a lot of holes in the basis for an employer''s honest belief, I think at a certain point you can argue that the belief wasn''t necessarily honest. And some courts have gone in that direction. And the other view from the Seventh Circuit view is the Sixth Circuit view which says it is not enough for an employer to only have an honest belief. That honest belief itself must be reasonable. So under this view, I don''t think the facts in Kariotis would have held up for the employer and I think there would have been evidence in pretext. But in the Smith case, Chrysler terminated an engineer after discovering that he had narcolepsy that was not disclosed on an application. And there was some question whether his condition was really narcolepsy or another sleep disorder. And there was also question as to when the diagnosis occurred, was it prior to the application, and also whether the employee disclosed his condition to the employer. But the court looked in this case, looked at the honest belief rule and looked at the Seventh Circuit decision and said the Seventh Circuit, however, does not require an employer to demonstrate that his belief was reasonably grounded on particularized facts that were before it at the time of making its decision. Here the company made a decision to terminate without looking at the info on the questionnaire, and they later used the questionnaire to justify the decision. And the court said that this was evidence of pretext. It is not enough that the employer just have an honest belief that they thought he failed to disclose his condition. The court -- the company must make reasonable efforts to see if the honest belief is accurate. And so the Sixth Circuit rejected the pure honest belief rule and then says the honest belief itself must be reasonable. And also, in the Smith case, they didn''t talk about it much, but there was a denial of an accommodation request. And again, I see in a lot of these cases I think those factor into a little bit of the pretext argument for the employee. Because they say look, they denied my accommodation and we have all these other evidence of pretext. I think that factors in as well. Smith went on to say that actions must be grounded on fact, not on unfounded fear, prejudice, ignorance, or mythologies. And even if the facts are later proven false, employers are protected by the honest belief rule if their reliance was reasonable, if they reasonably relied on the information before them. Here the court said that there was evidence that the employee did not disclose the information and that he was diagnosed beforehand, so after looking at the evidence, the court actually said the employee did not have a pretext claim, but the reason was not just that the employer had an honest belief. The court went farther and said the employer had an honest belief, and actually, it turns out that the employer''s honest belief was, in fact, reasonable as well. So in this case, the employee loses, but it is an analysis that is much more favorable to employees. The U.S. Supreme Court has not weighed in on this, so these kind of analyses kind of depend on where you live for pretext. But under either version of the honest belief rule, whether it is honest belief alone or honest belief plus reasonable alliance, I think employers are safe if they have a reasonable reliance and their honest belief. And Brian wants to add a few points on honest belief, which I think we will do in a minute if that is all right. I have a couple more slides, then we will stop before we get to the discussion case. Yes, it is a very intense rule, so Brian''s input I think will be really helpful. And then we are going to talk a little bit about pretext plus. May a trier of fact find discrimination based solely on pretext, evidence of pretext, with no evidence of any unlawful motivation? And there were a few cases that came down, and it was recently clarified in the 2000 U.S. Supreme Court decision which rejected the pretext plus framework, in effect saying if there is evidence of pretext, you don''t necessarily need additional evidence of unlawful motivation. The courts said the trier of fact could find for a plaintiff who showed pretext absent evidence of an employer''s true motivation, and I quote, in appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. And this is the Reeves case. It is really looking at the totality of the evidence. So if the totality of the evidence creates a prima facie case of pretext, then the plaintiff at least has enough to get past summary judgment. You look at everything added together, and if the evidence of pretext is there, that could be enough, even if there is no disability-related negative comments made by the employer or something else like that. We have some issues here, I am sorry, some tips here which I want to go through quickly. These are tips for employees with disabilities. One, definitely document employer conduct that seems motivated by disability. One you can help show for example, temporal proximity by writing down dates and times as well as showing bias and things like that. It is important if an employee is being harassed is to address the inappropriate conduct and complain to supervisors in cases of harassment or discriminatory treatment. If an employee is injured by wrongful conduct, provide proof of any injury. Sometimes we have seen cases and a lot of them were a person may have a physical impairment and feel that they are being harassed or treated in a discriminatory fashion because of that, and just the stress of being in that work environment can lead to mental impairments as well and anxiety and stress-related conditions. And if those types of things happen, it is very important to have them documented. If you think you need medical attention, you know, seek it. Of course, be aware of statute of limitations and filing requirements. There are strict timelines for filing with the EEOC or state agencies. And as we mentioned earlier, always make sure you properly identify your case. If it is failure to accommodate, it is probably not a pretext case. It is a straightforward failure to accommodate kind of case. And also allege all possible applicable claims in your filings. Any thing that might, any type of legal claim that may arise out of the facts should be alleged because you may waive, for example, a failure to accommodate employment claim by calling it disparate treatment, and that is from the Timmons case, which our agency actually worked on, at least on the appellate court, and the appellate court held because the failure to accommodate claim was not raised at the trial court, only disparate treatment was raised, the employee who was terminated could not raise the failure to accommodate claim on appeal. And again, the courts point out if the employee''s reliance on a physical or mental impairment is obvious, then the McDonnell Douglas burden shifting analysis doesn''t make sense. And that is what the court said in Jeffrey versus Ashcroft at the bottom of slide 43. And then we have some tips for employers as well. One, training managers on ADA and disability awareness especially in new hires. And in a couple of cases we have discussed and in a lot of cases that our agency see, it is new managers who come in who don''t want to continue accommodation, who make in appropriate conduct, statement or engage in misappropriate conduct, and it is often new supervisors. Training can really help employers prevent a lot of ADA issues. And I think including disability harassment issues in training, as well as accommodation issues, and having procedures in place with centralized decision making to avoid inconsistency in grievance procedures I think are very helpful. I think it is important that employers define essential functions properly. Misdefining them, as Brian mentioned earlier, may be evidence of pretext. Treat employees consistently. Obviously, you have to make accommodations for people with disabilities, but in terms of discipline, et cetera, consistent treatment of employees can be very important for management and for employers to show that they behaved appropriately. Documentation for employers of all performance and safety issues can be important. You can''t - it is hard to argue you terminated someone for being unsafe or for performance issues if those aren''t well documented. And with the honest belief rule, make sure that you are relying on information that is reasonable just to play it safe. And again, as I mentioned, centralized decision making can avoid inconsistent actions that can give rise to pretext claims. Okay. We have a discussion case here, but I am going to pause for a second and let Brian talk another minute or two about the honest belief rule.
Thanks, Alan. Yeah, I want to get to the discussion question, so I am not going to say much. I was just going to make the point that honest belief can be a defense for the employer when we a talking -- when the question is about whether a performance issue or misconduct motivated the adverse action. But honest belief isn''t a defense if we are talking about the issue of disability or qualified. In other words, the employer can''t say, well, I didn''t think they had a disability, and court, you are now saying you think they do, but I honestly didn''t think they did, so I didn''t think I had to accommodate them. That didn''t work. Likewise, I didn''t think they could do the job, even with accommodations, and I may be wrong, but that is what I honestly believed. That is not a defense. When we are talking about honest belief, we are really talking about honest belief that there was misconduct that justified the action that was taken against them. And in the last point on honest belief I will make is that even under the Seventh Circuit''s strict analysis of honest belief, there is still the opportunity to disprove the honesty of the belief, and there is a variety of ways to do that. But that is still an issue. The last point I wanted to make as a general proposition for our discussion is that the cases we have been talking about are mostly decided on summary judgment, so when we say there was enough evidence, the court found this was pretext, what we are really saying for the most part is that the court found there was sufficient dispute about the real reason to send the case on to the jury. And so it is not that the court was saying this is absolutely evidence of pretext and defendant, employer, you lose. They typically aren''t saying that. The question they are being asked to decide is, is there a sufficient factual dispute about the real reason that we should let the jury decide it? And in the cases where there was sufficient evidence of pretext, that is what the courts typically decided. But I want to get on to the hypothetical case, so Alan, I am going to pass it back to you.
All right. Thank you, Brian, and thanks for those clarifications. I think that was really helpful and important. Yes, when we are dealing a lot with summary judgment, and as I alluded to, these cases are very factually specific. What the courts are saying is either there is enough evidence that it needs to be decided by a jury whether there was pretext or there wasn''t enough evidence to get to the jury that there was no pretext. We are really looking at not a set decision by the court that employer was right or employee was right. More, it is just is there enough evidence to get to a jury or not. I have some facts here that I culled from a case our agency worked on and I worked on. I changed many of the facts to protect many people. But I think it points out a lot of the issues we talked about, so I wanted to put it in a real-life example, then we can go through and I can explain some of the things I was worried about and like to see how other people analyze the situation. So we have represented a bus mechanic who is hard of hearing who had some hearing but met Social Security''s definition of deafness. He worked as a bus mechanic for 15 years and was with the company for 5 years. And then, as I alluded to, he had a new supervisor that began, started calling him some derogatory names. He called him a deaf doofus, also called him Beethoven, which I believe is a reference to the musical composer and conductor who was deaf, not to the shaggy dog who starred with Charles Grodin in all those movies. And he also made other negative comments about hearing, he wouldn''t be able to hear a bus if he was running you over, stuff like that. Sometimes he would kind of harass or tease the mechanic, depending on your perspective. He would look like he is talking to the mechanic without saying words and just be moving his lips to try to confuse him. And he also gave the mechanic three write-ups in the past year for poor work on various conditions, and the mechanic had never received any write-ups with this company in the four-plus years before this mechanic -- before this supervisor started. At the same time, because of rotating shifts, et cetera, the mechanic was also supervised by two other people, and he received no write-ups from them. And after the third write-up he received from the one new supervisor, the mechanic was terminated and was informed of this via a letter he was handed by the owner of the company one day when he came to work. He filed a claim with the EEOC, claimed that other mechanics with more write-ups and more serious infractions were not terminated. Some of them had, were suspended for a couple days or had pay cuts or demotions. Others had nothing happen to them for their offenses. And the mechanic claimed that his write-ups were for minor infractions that other people were not written up for. And part of his claim is of course, they are not consistently enforced policies of the company, which, as we mentioned, is makes it more difficult or makes it more difficult for the company to show a lack of pretext if there is inconsistency in administering the discipline. Companies that administer the discipline consistently are generally a little stronger when it comes to a pretext claim. So at the EEOC, the bus company argued that the supervisor of the mechanic was no longer qualified to work safely at its buses. They thought his disability played into the decision, but it made him unqualified because he was unable to hear engine sounds, which they said was sometimes important for diagnosing problems with the engine, and he was unable to hear instructions. There were certain alarms they thought he wasn''t able to hear, et cetera, et cetera. They also said he kind of had a sloppy attitude and combined it with a "know-it-all" type of attitude, meaning he didn''t take construction well, and they claimed he did poor work, and as a result, the unsafe work on buses, of course, can jeopardize the lives of people on the buses or, really, anyone on the road. So at the EEOC, the company said it was the supervisor who really made the decision for those reasons. The EEOC, in their investigation, they interviewed the other supervisors, who said the mechanic occasionally made mistakes, but all the mechanics occasionally made mistakes, and for that reason, there is many layers of checking the work before a bus leaves the repair station because mistakes are easy, and there are layers of oversight to catch them. In rating this mechanic, the other supervisors, the other two said he was not the best mechanic at the plant, was probably in the top half of the mechanics there. The company, of course, denied that the supervisor made any improper statements, claimed that they were following their discipline policies uniformly, even though they did admit there were no written guidelines for discipline. The EEOC investigated, and based on some of the comments alleged, et cetera, they found, the EEOC found reasonable cause that discrimination occurred, and they issued the notice of right to sue, giving the mechanic 90 days to file in federal court, which he did. So he filed the case in federal district court, and then the discovery process began that Brian talked about a long, long time ago. And interestingly, in the company''s answer to discovery, the company now stated it was the owner of the company, not the supervisor, who made the termination decision and that he based his decision on information from all the supervisors as well as complaints from the other mechanics who worked with this mechanic who was terminated. So I have here on slide 49 the discussion questions, and I am going to read through these and then pause for a minute. I would like people to think about this and maybe type in some answers. I know on webinars, doing interactive type of presentations has some challenges, but I would like to see us apply some of these principles. So one is asking identify the issues and facts that may be relevant to proving or disproving pretext. Is it important who made the termination decision, whether it was the supervisor or the owner, and if it was important, why? What issues does the company''s discovery answers raised? How does the company''s handling of discipline factor into this situation? And the last question I asked are other ADA issues relevant? So I am going to pause for a second, and I encourage anyone who has any thoughts on any of these questions just to type them in or start talking. Thanks. Okay. I don''t see anyone typing in yet, so I will keep talking for another minute or so and then see if anyone has any thoughts. Well, let''s start with, is it important who made the termination decision? Whether it was the supervisor or the owner? And why would the company say at the EEOC it was the supervisor who made the decision and then later, in federal court, it was the owner who made the decision? Can anyone offer any reasons for that? Okay. I want to see some different hands. Let''s see if anyone has anything to offer. Ah, Brian has some thoughts. Okay. I will turn it over to Brian, and hopefully some of the other participants will type in.
Yeah, some of the reasons why I think that piece about who made the decision is important is, first, with regard to honest belief, because we theoretically have the company saying it was the owner who made the decision and the owner didn''t know anything about whatever bad acts might have taken place at the supervisor''s level. And so it seems to me that they are setting themselves up to argue honest belief because even if the supervisor had bad motive, the owner, there is no showing that the owner himself or herself did. So I think that is one reason that is important, and I think that is, I think that brings in to the analysis the concept of cat''s paw that we could get to. The other reason I think it is important is with regard to sort of a takeoff on the shifting explanations piece that we have talked about before, they first say the supervisor did everything. Now they are -- and we have other evidence of shifting explanations. First it was bad work, then it was safety, then it was complaints from others. But now we have a disagreement about who even did it. First they say the supervisor, now they say the owner. So if I am representing the individual, I think this is useful information for me in making my case a pretext because it looks like they can''t get their story straight.
Yeah, and totally I agree. Those were my thoughts. I ended up settling the case before summary judgment, but I really thought yeah, we don''t want to get into the whole cat''s paw theory, but I really feet they were getting into the honest belief rule. And I also thought that there is some good Seventh Circuit case law, which is rare for employees but there was good Seventh Circuit case law in the shifting explanations. I think the fact that they changed the decision maker and to maybe to a lesser degree, changed some of the reasoning, I thought that was an important fact which I thought, combined with everything else would help us get past summary judgment. But those were two of the big issues that I think really were raised here. And I think if a company wants to avail themselves of the honest belief rule, they should probably do it sooner at the EEOC rather than give one actor at the EEOC in making the determination decision and the second actor in federal court. Does anyone have any other thoughts? Is there any other ADA issues that might be relevant? What about inconsistent or consistent discipline, any other thoughts? I see Matt wrote a question. He is not an attorney. That is one point for you. Is it just a matter of course that a plaintiff files for summary judgment? I think as Brian mentioned, usually it is the employer, the defendant, that files for summary judgment. Because when a plaintiff files, the employee is saying there is no factual dispute as to whether there is discrimination. I think the court should find discrimination as a matter of law. And unless you really have a set of great facts, it is going to be rare for a plaintiff to do that. Okay. For a defendant, yeah, it certainly is a matter of course for defendants to file. I was just about to get to that. I mean, the whole case is all about getting past summary judgment. From our point of view, if we get past it, settlement value increases, they don''t want to go to a jury because they think juries can do anything. But defendants almost always move for summary judgment in employment cases. And in the Seventh Circuit, up until the ADA Amendments Act, their winning rate on summary judgments was probably in the 90 percentage, percentile of cases. Most of them went for employers on summary judgment. A lot of those were on just whether the person was covered by the ADA, which definitely changed under the Amendments Act, but yeah, certainly a matter of course for defendants to do that.
Yeah, I wanted to follow up on that and say that it has not been a matter of course for plaintiffs to file these motions. It has been a matter of course around the part of the country where I practice for the employer to file them. I do think after the ADA Amendments Act, to the extent the employer will not stipulate on the issue of disability, we might see more plaintiffs, that is employees, filing motions for partial summary judgment to get the court to decide that there is no issue for the jury on disability. This person does have a disability, they are covered by the Act, and let''s move on to whether there was pretext or other acts of discrimination. Getting back to -- oh, another question. What are the triggers that someone with a disability should be looking for if they believe they have been subject to this type of action? Yeah, I think that is a really good question because when someone comes in to talk to me, that is the thing I ask them is why do you think this was related to your disability? And as I said, sometimes that is pretty obvious and maybe even admit it. Or it may not be much of a fight in a failure to accommodate case. But if the employer is saying that it was some other reason, then I want to know what makes the person think it was disability. And so among the things that I am looking for or asking the person about are did they make any negative comments to you? Did they take any action on the heels of you disclosing your disability or your accommodation needs? Did they subject you to different kinds of discipline? So it is really, I am not going through exactly a checklist, but I am looking for all the things we have talked about in order to determine whether I think there is sufficient evidence to get to a jury. Let me pass that on to Alan.
Yeah, and I was just going to add, really, anything, if an employer gives reason for the action and there is any evidence that might not be the real reason, I think that can be evidence of pretext. So I typed in there if they said your position is eliminated and then the person sees the job posted, we have used that as evidence of pretext. And sometimes the evidence doesn''t have to be an unlawful act. If you remember the EEOC example where they were looking for evidence of pretext based on retaliation, they said if the employer gives a prospective employer a negative job reference for a former employee, but that is kind of the pattern where they give positive or negative job references all the time, then there is no evidence of pretext. But if they do it for someone who filed an EEOC complaint, they give a negative job reference for that person to a potential employer but their policy is to never give negative job references to potential employers, that actions can be context for pretext. So you really look at how a company is trying to justify their actions in this case versus how they normally act to see if there is something that demonstrates that the reason they assert is not the actual reason for their action.
This is Brian, and yeah, the question that was posed is employers may fear disciplining a problem employee because they fear that a complaint will be made against them, so what are some words of advice for someone who is faced with performance issues? And it says accommodation has been addressed but the performance problem persists. Yeah, I think, you know, it is a lot of those things on the slide, on slide number 44 that Alan was talking about, and that is making sure the people making the decisions are trained, making sure that there is centralized decision making or taking other steps if not that to make sure that it is consistent, making sure that, you know, the treatment is the same. So the fact that someone has a disability or any other protected or is a member of any other protected class, is a woman, is over 40, is African American, or is white or you know, any other class of people that might claim discrimination, I mean, everybody has membership in one of those classes. So any discipline you take could be argued as discrimination on the basis of that protected class. And the way but by the same token, none of these laws, Title VII, the ADA, the Age Discrimination Employment law act et cetera, none of them prohibit disciplinary action that is unbiased, that is equally administered, and that is justified. So I think it is really just a question of documenting and making sure that you are being consistent in your -- in the way you go about things. I also think that if, in this particular example that Claudia mentions, accommodation has been addressed but performance problems persist, I take that to mean that a request for an accommodation was made, that some accommodation was offered, but the performance problems still persist. I think that is a sign that there needs to be a continuation of that interactive process to talk about accommodation. So for example, the employer may want to go back to the employee and say, look, you said you needed this, we gave you this. But it is still a problem. What else can we do? And of course, it only has to be reasonable, but see what else is possible. Talk to the Job Accommodation Network. Talk to a vocational expert. Talk to the person''s vocational rehabilitation counselor, et cetera. And see what else there is. But if, in the end, there are performance problems that would justify a disciplinary action, you have attempted every reasonable accommodation you can think of and the plaintiff can think of, and it is not helping, then you can still take the disciplinary action you would normally take. And yeah, so I guess that is what I would say. I did want to at least throw out that I think there are some other great issues in this hypothetical case that Alan poses to us, and I think it reminds me of law school, this exam, where there is, you know, 50 different issues hiding in there. There is -- you know, we talk about shifting explanations. There is a question of whether the performance issues that were raised are really untrue because apparently the other people thought this person was better than average. There is the issue of whether the safety concerns are true. If the person really did pose a direct threat to himself or to others, then action may be justified. But if not, not. There is also question of whether the person has a disability and is, therefore, even protected by the Act? I think what little I know of the Social Security standards for hearing impairment, I suspect that even before the ADA Amendments Act, this person would have been covered, but I think clearly afterwards they -- well, not clearly because I don''t know enough of the facts, but I think likelihood is disability is no longer going to be an issue. Then there is the issue of whether the person was qualified? They are saying they can''t do the job, maybe suggesting they are not qualified, but here, in that case, we had a history of presumably satisfactory work, both with this particular employer and for other employers before that. That suggests a person is able to do the job in the sense of being qualified. So I think there is a lot of issues in that case. I am going to pass it on to Alan.
Alan, we are not able to hear you. Are you still with us?
I am. Sorry about that, I am not sure, yes it is working now. I just want to add quickly it is really important for employers to consistently administer discipline. There is no cloak of immunity for people with disabilities or in any protected class. On the other hand, if you don''t give write-ups to someone with a disability for performance issues and later terminate them, they might even claim that the failure to give write-ups was adverse treatment because they had no opportunity to correct their performance. So it is really important for employers to focus on conduct and be consistent. I just want to race through the last slides. We are out of time. I have here the list of resources for people to contact if they have any questions, and then move on to this. And the upcoming webinars, I think Peter will mention at the end they will be announced soon, probably within a week or two, for next season. And in the next slide and you will be sent a power point, it contains a link for the evaluations. So thank you. I will turn it back over to Peter for closing comments.
Alright, thank you very much, Alan and Brian, for the great information this afternoon. As Alan mentioned, we will be heading into a new season of ADA legal webinars. This is the final session for the 2008-2009 series, and look for the schedule of upcoming ADA legal webinars to be posted to the ADA Audio website by October 1st. You can visit the ADA Audio Conference website at www.ada-audio.org. And you will be able to click on the link there for the ADA legal webinar series and then follow the link to view the schedule for the upcoming year. I want to thank everyone for participating with us today. We look forward to having you join us in the new year, the new series of webinars. And thanks to everyone. To exit, you just need to close out the conferencing window to exit the web conference. So thank you, everyone, for joining us. Have a good afternoon.