The Americans with
Disabilities Act of 1990 (ADA) requires that an employer provides their qualified employees with disabilities
any reasonable accommodations, unless doing so would cause the employer undue
hardship. That accommodation could be any " any change in the work
environment or in the way things are customarily done that enables an
individual with a disability to enjoy equal employment opportunities."
Refusal to accommodate an employee, or terminating them for requesting an
accommodation, can allow employees to bring a claim against their employer for
an ADA violation. Termination based on pretext can also give rise to a valid
claim for an ADA violation. Pretext occurs when an employer formulates a
legitimate reason for termination, but the underlying and true reason was
discriminatory. A way to establish pretext is to show that discriminatory
comments were made by the key decision maker or those in a position to
influence the decision maker.
In a recent case,
Kelley v. Correctional Medical Services, Inc., Kelley (the employee) shattered her pelvis while horseback riding. (Click click to access the case) She required
surgery, and took a leave of absence for six weeks. Upon her return, Kelley was
under several medical restrictions which included using crutches for
ambulation, not using her hands for lifting, and keeping squatting to a
minimum. Kelley could lift, push, and pull objects as long as she remained
seated. When she began to use a cane at work, her supervisor told her she was
not allowed to do so without a proper doctor's note. In response, Kelley
acquired the note. That was not the first time that her supervisor made it
difficult for her to work after her injury and had often suggested that Kelley
"was misrepresenting the extent of her injuries and that she would be unable
to walk if she had truly fractured her pelvis." That was further affirmed
when a member of management alerted Kelley that the supervisor had said she
"wanted her gone."
On the night shift
of October 17, 2008, Kelley was on vacation but was called in to work. She came
in only to realize that her assignment was changed to the main clinic. The main
clinic responded to "code blues" which required quick response time,
and the lifting of stretchers. Unfamiliar with the responsibilities of the main
clinic, and also wary of taking on the physical responsibility with her
disability, she asked another nurse to switch with her. The nurse initially
agreed, but then refused. The supervisor was soon called to resolve the issue
between Kelley and the other nurse via speakerphone. After the conversation,
Kelley was escorted off the premises by security per instruction of the
supervisor who claimed that refusing to take the assignment qualified as
insubordination. A written recommendation was submitted by the supervisor to
her superiors, stating that Kelley should be fired for insubordination. They
agreed and fired Kelley.
The court found the
evidence to clearly establish that Kelley and her supervisor had a tense work
relationship and often disagreed on her need for accommodations. Her supervisor
was also repeatedly hostile towards any accommodation. The court stated that
this behavior was "probative of a pretextual ground for terminating
Kelley's employment." Her supervisors comments went beyond mere remarks or
comments and were actually discriminatory. The night of October 17 could be
views as "the culmination of this history of disability-based
conflict." The termination of Kelley was not because she was
insubordinate, but rather due to her supervisor using a convenient excuse to
rid herself of an employee she thought to be annoying. The court stated that an
employer cannot use insubordination to mask retaliation for requesting a
reasonable accommodation and vacated the finding of summary judgment in favor
of the employee. The case has been remanded.
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