Janitor Who Went Silent While on Leave Loses Claims


By Michael S. Powers November 20, 2018

​A federal district court in Seattle dismissed the discrimination claims of a Washington State Department of Transportation janitor who stopped responding to his employer while on medical leave.

The plaintiff, who is black, claimed that during his employment he was discriminated against based on race, as well as based on age and disability, and that he was retaliated against for complaining of discrimination. The plaintiff made a number of allegations of discrimination, including that he was denied opportunities for advancement that were available to white employees.

In February 2013, the plaintiff suffered an on-the-job injury that resulted in his taking medical leave. He briefly returned to work that fall but was unable to perform the functions of his position and began taking leave again after only two months. Throughout his leave, the employer attempted to accommodate his medical needs. After he had been on leave for more than two years, the plaintiff refused a position that would have accommodated his condition and then stopped responding to the employer's attempts to contact him.

After the plaintiff stopped making contact with the employer for three consecutive pay periods, he was presumed to have resigned and was terminated. The plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), followed by a lawsuit in federal district court.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

The court found for the employer, as a state agency, on both the age-discrimination and disability-discrimination claims, ruling that sovereign immunity protects a state entity from claims under either the Americans with Disabilities Act or the Age Discrimination in Employment Act.

In considering the plaintiff's race-discrimination claims under Title VII of the Civil Rights Act of 1964, the court looked only at his claim of wrongful termination. His other claims were untimely.

The court found that the plaintiff failed to provide evidence that his termination was discriminatory. He did not identify any white individuals who stopped communicating with the employer while on medical leave but were not terminated. He also failed to show that the employer lied about its reason for the termination. Similarly, the court found no retaliation because the plaintiff did not show that his complaints of discrimination played any part in his termination.

Kelly v. Washington State Department of Transportation, D. Wash., C16-522 (Oct. 22, 2018).

Professional Pointer: When an employee on a long-term medical leave fails to communicate or participate in the employer's ongoing efforts to return the employee to work, it may become necessary to end the employment relationship. If that occurs, the risk for discrimination claims is high and the need for extensive documentation of those efforts may well make the difference in court.

Michael S. Powers is an attorney at McMahon Berger PC, the Worklaw® Network member firm in St. Louis. 


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