Differing Explanations for Termination Results in ADA Case Going to Trial

 

By Susanne Harris Carnell September 24, 2019
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​The 9th U.S. Circuit Court of Appeals' reversal of an employer's summary judgment win in an Americans with Disabilities Act (ADA) case illustrates the importance of timely written and internally consistent documentation regarding termination decisions.

The plaintiff was employed by Wells Fargo Bank as a level-one portfolio manager (PM1) when, on Oct. 28, 2014, she requested medical leave. On Oct. 29, her supervisor sent a meeting invite to his supervisor, titled "Displacement Conversation," explaining that he wanted to run an idea by his supervisor regarding the plaintiff. After the plaintiff returned from leave, she was fired and filed suit alleging that her termination violated the ADA.

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

In its defense, the employer explained that the decision to eliminate the plaintiff's position had been made two weeks before she requested leave. The employer offered the testimony of her supervisor and a human resource professional that on Oct. 13 they had discussed eliminating the plaintiff's position and replacing her with a level-two portfolio manager (PM2)—"someone with more experience who could get more done." According to the employer, the staffing change was approved on Oct. 21. Neither of these two communications were in writing. Instead, it was not until Oct. 30, after the plaintiff's request for leave, that the plaintiff's supervisor made any written request to replace the plaintiff with a PM2.

The employer argued that there was undisputed testimony that the decision had been made before it knew of the plaintiff's leave request, and that argument was successful in the lower court. But the 9th Circuit reversed the lower court's grant of summary judgment, finding that a reasonable jury could conclude that the employer's explanation for the plaintiff's firing was pretext for discrimination.

The appeals court focused on two key facts in explaining the reversal. First, the court addressed the timing between the leave request and the decision to terminate. The employer offered testimony that the Oct. 29 e-mail sought confirmation of a decision already made in light of the leave request. The plaintiff argued that the phrase "I want to run an idea by you" suggested something being discussed for the first time, not a decision already made. Finding both sides' interpretations plausible, the court concluded that a reasonable jury could find that the decision to fire the plaintiff was not made until the day after she announced her need for leave.

In addition to the suspicious timing, the appeals court pointed to evidence of shifting rationales for the termination. The employer claimed that the plaintiff's performance was irrelevant to the termination. By contrast, the plaintiff testified she was told she was being fired because her supervisor was "not happy with [her] performance," and the supervisor's Oct. 30 e-mail discussed bringing the plaintiff's "performance up to par" if she was not fired.

Calling it a "close case," the appeals court acknowledged the uncertainty surrounding the plaintiff's termination but held that "such uncertainty at the summary judgment stage must be resolved in favor of the plaintiff." Finding sufficient evidence from which a reasonable jury could find that the employer's explanation was pretext for discrimination, the appeals court reversed the grant of summary judgment and sent the case back to the trial court.

Samson v. Wells Fargo Bank N.A., 9th Cir., No. 17-55927 (June 28, 2019).

Professional Pointer: Inconsistent explanations and a lack of timely documentation can sink an employer's chances of early resolution in litigation. Employers should document employment decisions at the time they are made, taking great care with the words and phrases used to describe all the reasons for a given decision.

Susanne Harris Carnell is an attorney with Lorenger & Carnell PLC, the Worklaw® Network member firm in Alexandria, Va.

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

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