Evolving Rationale for Disciplinary Action Supported Inference of Retaliation

By Lance W. Parmer October 6, 2021
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​The Drug Enforcement Administration's (DEA's) failure to provide contemporaneous documentation of an employee's alleged performance issues or a consistent reason for revoking the worker's security clearance supported an inference of retaliation under the Rehabilitation Act, according to the 4th U.S. Circuit Court of Appeals. The appeals court reversed summary judgment for the agency on the plaintiff's retaliation claim.

The plaintiff worked with the DEA as a subcontractor beginning in 2013. At the outset of the relationship, she notified her supervisor that she had a disability that limited her mobility. The DEA granted her accommodations, including a remote-work token that allowed her to access the DEA's infrastructure while working offsite. Under the agreement, the plaintiff worked from home approximately 50 percent of the time.

In 2016, CSRA Inc. became the new prime contractor on the project and the plaintiff entered into a subcontract (the "consultant agreement") with CSRA to continue in her position. In 2017, the DEA's acting deputy assistant administrator became dissatisfied when the plaintiff was unable to answer work-related questions. As a result, the DEA directed the plaintiff to begin reporting to DEA headquarters for work.

The plaintiff lobbied CSRA and the DEA for accommodations, including continued work from home and a building parking pass to allow her to park nearby. DEA officials did not immediately respond to the plaintiff's request, but because of parking and transportation problems, she intermittently continued to work remotely despite notification that she was not authorized to do so.

The DEA concluded it could not grant her work-from-home request because the CSRA contract did not expressly provide for remote work. The agency denied her a parking pass because the building lease limited the issuance of parking passes to DEA employees.

The agency offered the plaintiff a part-time work schedule. The plaintiff rejected the offer and filed a complaint with the DEA's equal employment opportunity office, alleging that the agency had failed to accommodate her disability.

A few days later, the DEA was able to secure the plaintiff a parking pass. The plaintiff received an ultimatum to report to work as instructed or resign. She did not resign, and the DEA revoked her security clearance a few days after she filed a complaint with the U.S. Equal Employment Opportunity Commission. CSRA terminated its consultant agreement with the plaintiff.

The plaintiff sued, alleging disability discrimination and retaliation under the Rehabilitation Act against the DEA and violations of the Rehabilitation Act and the Americans with Disabilities Act (ADA) against CSRA.

The district court rejected all the plaintiff's claims on summary judgment.

On appeal, the 4th Circuit affirmed summary judgment on the disability discrimination claims but vacated summary judgment as to her retaliation claim against the DEA. The court held that the plaintiff was an independent contractor of CSRA and that no joint employer relationship existed between the DEA and CSRA. Because the ADA does not protect independent contractors from discrimination based on disability, the plaintiff's claims against CSRA failed.

Turning to the claims against the DEA, the court did not address whether the plaintiff was a DEA employee. The court agreed that summary judgment was proper on her failure-to-accommodate claim because the DEA did not refuse to accommodate the plaintiff's disability; rather, it offered her an alternative reasonable accommodation in the form of part-time work.

Nonetheless, the court reversed summary judgment for the agency on the plaintiff's retaliation claim. The court held that the DEA had failed to present any contemporaneous documentation in support of its performance-based reasons for terminating her security clearance and that the DEA's reasons for terminating the plaintiff's security clearance had evolved over time. The court held that the lack of documentation, inconsistencies and shifting justifications could lead a reasonable jury to conclude that the DEA's reasons for revoking the plaintiff's security clearance was pretext for unlawful retaliation.

Smith v. CSRA Inc., 4th Cir., No. 20-1377 (Sept. 1, 2021).

Professional Pointer: This case provides another example of the importance of documentation. Employers should ensure that any performance issues, rule violations, counseling sessions and disciplinary actions are well-documented and maintained in an easily retrievable form. This includes clearly documenting the precise reasons why disciplinary actions were taken.

Lance W. Parmer is an attorney with Lehr Middlebrooks Vreeland & Thompson, the Worklaw® Network member firm in Birmingham, Ala.

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