Changing Reason for Firing Supports Disability Bias Claim

By Jeffrey L. Rhodes Sep 11, 2015

An employee's disability discrimination claim should not have been dismissed before trial when the employer's reason for the firing changed, the 5th U.S. Circuit Court of Appeals ruled.

In 2009, Nicole Burton was hired as a temporary employee for a computer microchip manufacturer, Freescale Semiconductor Inc., through a temporary placement firm, Manpower of Texas. During her employment, Burton received positive to neutral reviews. However, in early 2011, Burton broke a wafer, which is the platform upon which microchips are seated. Burton was counseled for doing so by Manpower. On March 1, 2011, Burton breathed in chemical fumes at the worksite. On April 12, 2011, Burton reported chest pains at work and received treatment. Burton visited the emergency room again on May 9 and May 17. In mid-June, Burton notified Freescale and Manpower that she believed her health condition was caused by her exposure to fumes. This resulted in the filing of a workers' compensation claim.

Toward the end of June, the company alleged that it caught Burton using the Internet for personal reasons. Freescale's manager, Bruce Akroyd, then decided to fire Burton due to her damaging a wafer and her alleged failure to comply with the company’s policies. Akroyd asked the temporary placement firm to discharge Burton, but the firm initially stated that it did not believe a discharge was appropriate. To substantiate the firing, Akroyd and Manpower later created documentation of performance deficiencies by Burton, including failure to keep her nose covered in the workplace. In late July 2011, Freescale and Manpower terminated Burton's employment.

In response, Burton filed a charge of discrimination under the Americans with Disabilities Act (ADA) with the Equal Employment Opportunity Commission. Burton then filed a federal lawsuit against Freescale and Manpower for violation of the ADA and retaliation for her filing of a workers' compensation claim. The district court granted the motions filed by Freescale and Manpower for summary judgment, deciding that the case should be dismissed before trial. The court determined that the reasons given by both companies supported discharge and showed that the companies were not motivated by discrimination or retaliation.

On appeal, the 5th Circuit disagreed with the district court and ruled that the changing reasons for the firing show evidence of discrimination. The 5th Circuit reasoned that the fact that the decision had been made in late June meant that the documentation created in July could not have been relied upon for discharge. Moreover, the documentation of poor performance after the late June decision, with the absence of prior documentation, actually showed that the reasons for Burton's firing were pretextual.

Based on this reasoning, the 5th Circuit reversed the district court's decision dismissing Burton's discrimination claim. However, the appellate court upheld the dismissal of Burton's claim of retaliation based on her workers’ compensation charge. It found that Freescale, which did not provide workers’ compensation insurance for Burton, made the decision to terminate Burton. Because it did not pay for workers’ compensation insurance, it could not have been motivated by retaliation. Manpower, which provided workers’ compensation insurance, did not initiate the discharge decision, thus proving that it was not motivated by retaliation.

Burton v. Freescale Semiconductor Inc., 5th Cir., No. 14-50944 (Aug. 10, 2015).

Professional Pointer: Employers are well-advised to keep records of poor performance prior to discipline or discharge. If records do not exist, however, an employer should not try to fill this gap by writing up an employee after making a disciplinary decision. This may suggest an effort by the employer to "cover up" the reasons for its decision.

Jeffrey L. Rhodes is managing partner of the civil division of Albo & Oblon LLP, a business and employment law firm in Arlington, Va.


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