Age and Disability Discrimination Claims Fail

Takeaway: Although reasonable accommodations, including leaves, are required for qualified employees with disabilities if the accommodations don’t result in an undue hardship, employers are not required to provide indefinite leaves of absence.

An employee was terminated because of her refusal to provide a return-to-work date after nine months of medical leave, the 8th U.S. Circuit Court of Appeals found, affirming a lower court’s dismissal of the employee’s claims of a hostile work environment due to age and disability discrimination.

The employee was hired as the director of the oncology department at a regional medical center. She was 61 years old at the time of her hire and had a heart condition that required a cardiologist’s care. The medical center was aware of the employee’s medical condition when it hired her.

Shortly after she was hired, the medical center also hired a new chief operating officer, who became her direct supervisor. After a year and a half, the supervisor issued a coaching document regarding the employee’s performance. A year later, the employee complained to HR that the supervisor bullied employees and had created a toxic environment.

Two months after the complaint, the supervisor issued the employee a disciplinary warning for creating a divisive environment between staff and management and placed her on a performance improvement plan. Four days later, the supervisor issued the employee a final warning for refusing to make any efforts to communicate during the disciplinary process. Five days after receiving the final warning, the employee requested and was granted short-term disability leave.

After being on leave for nine months, the medical center asked the employee when she could return to work. She stated that her doctor had not cleared her to return, and the medical center terminated her employment.

The employee filed a lawsuit in state court for common-law violations and violations of the Missouri Human Rights Act (MHRA), alleging a hostile work environment due to her age and disability as well as discrimination based on her disability. The case was removed to the federal district court, which dismissed the common-law claims as pre-empted by the MHRA and granted summary judgment to the medical center. The employee appealed to the 8th Circuit.

In her hostile work environment claim, the employee cited several remarks made by her supervisor, including:

• Asking her when she was planning to retire, saying she “wasn’t getting any younger.”
• Asking the employee to downgrade a 72-year-old receptionist’s performance rating, along with that of the oldest nurse.
• In response to the employee’s objection to the firing of an older employee because it would look like age discrimination, telling her, “If you’re not on board, you’re next.”
• Informing the employee that he would no longer allow her to work from home, saying, “I’m sick of hearing about your accommodations.”

While on leave, the employee reported the supervisor to an ethics hotline for bullying. She also sent several anonymous letters addressing how she and other employees were treated, but all of them focused on bullying and did not mention age or disability. The employee did not claim that her treatment was discriminatory when she spoke with an inspector about her experiences.

An MHRA hostile work environment claim requires the plaintiff to show that:

• She is a member of a protected group.
• She was subjected to unwelcome harassment.
• Her membership in the protected group was a motivating factor in the harassment.
• A term, condition or privilege of her employment was affected by the harassment.

The employee claimed protected status based on her age and disability.

Age discrimination requires a showing that the employee suffered an adverse employment action and her age was the motivating factor, resulting in her suffering damages. A “motivating factor” requires that age actually played a role in and had a determinative influence on the adverse action.

Disability discrimination requires the plaintiff to demonstrate that she had a disability, she was discharged and her disability was the motivating factor in the discharge.

The 8th Circuit pointed out that the comments cited by the employee occurred before she went on medical leave, more than nine months before her termination. Furthermore, the court explained, the employee provided no evidence that she was fired based on her age, as opposed to her refusal to provide a date when she would return to work.

The court found that the employee’s disability discrimination claims failed for the same reason—the employee failed to present any evidence that her disability, and not her refusal to provide a return date, was the motivating factor for her termination.

Lacking any evidence that the employer’s stated reason for firing the employee was not the actual cause, the court affirmed the lower court’s ruling.

Johnson v. Midwest Div.-RBH LLC, 8th Cir., No. 22-2922 (Dec. 11, 2023), petitions for en banc rehearing and panel rehearing denied (Jan. 24, 2024).

Robert S. Teachout, SHRM-SCP, works in the Washington, D.C., area and is a legal editor for XpertHR, a service helping HR build successful and purposeful workplaces.