Refusal to Participate in Investigation Bars ADA Claim


By Whitney R. Brown March 12, 2019

​An employee who refused to timely meet with his employer's investigator could not sustain claims under the Americans with Disabilities Act (ADA) even though he made recent complaints that his ADA rights had been violated.

The ADA protects qualified applicants and employees from discrimination due to their disabilities, and it also curtails an employer's right to require medical examinations or information from employees except when such examinations and requests are job-related and consistent with business necessity. The ADA likewise protects employees who reasonably complain that their ADA rights have been violated.

The plaintiff had repeated disputes with several of his colleagues. The plaintiff, a physician, accused his fellow doctors of trying to damage his reputation and of obstructing his professional advancement. After almost two years of attempts to assuage these concerns failed, his supervisors wrote him a letter that he was to respect the employer's culture, hierarchy and values, and to move forward rather than dwelling on the past.

Unfortunately, this letter did nothing to allay the plaintiff's negative perceptions of his colleagues. The next month he alleged that a former co-worker, under the sway of several other co-workers, had attempted to hire a hitman to murder him.

The plaintiff's employer told him to take two weeks off with pay and to use his time during those two weeks to meet with an independent investigator regarding the murder plot and submit to a mental evaluation.

The plaintiff did not complete either task in his first week of paid leave, claiming that he wanted to meet with his own attorney before meeting with the investigator and claiming he did not know where to go for the mental evaluation. The employer sent the plaintiff a letter directing him to complete his two assigned tasks, and the plaintiff did submit to a mental evaluation the next day.

Two e-mails from the employer and a short extension of the paid leave followed, but the plaintiff neither responded to the e-mails nor contacted the investigator. An executive called the plaintiff to ask why he had not met with the investigator, and the plaintiff said it was because he had been busy car-shopping and spending time with his family, but he hoped to meet with his attorney the next day. The plaintiff also stated that he believed his employer was violating the ADA.

The executive reported the call to his colleagues and they decided to terminate the plaintiff for insubordination. The plaintiff sued, claiming that he was retaliated against for raising concerns under the ADA. He contended that his employer had not really fired him for insubordination because he never explicitly refused to meet with the investigator and he had not been given a firm deadline or final warning.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The trial court rejected the plaintiff's arguments because his employer had repeatedly asked him to meet with the investigator as soon as possible, and it reasonably interpreted his actions and excuses for not meeting with the investigator as insubordinate.

The plaintiff appealed his decision to the 6th U.S. Circuit Court of Appeals, which agreed with the trial court.

Anaissie v. University of Cincinnati Physicians Inc., 6th Cir., No. 18-3372 (Jan. 24, 2019).

Professional Pointer: By staying on top of an employee's deficiencies and consistently reiterating the urgency of its expectations, an employer may handily defeat the employee's cries of retaliation, even when the employee makes protected complaints shortly before his or her termination.

Whitney R. Brown is an attorney with Lehr Middlebrooks Vreeland & Thompson P.C., the Worklaw® Network member firm in Birmingham, Ala.

[Visit SHRM's resource page on the Americans with Disabilities Act.]


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