‘You Know What’s in Your File’ Remark Keeps Claims Alive

By Nick A. Nykulak Aug 9, 2017

An employer that rescinded a job offer to an employee who had previously been fired might be liable under the Americans with Disabilities Act (ADA) for discrimination and retaliation and under the Family and Medical Leave Act (FMLA) for retaliation because HR allegedly insinuated that the rescission was because of the individual's ulcer and past medical leave.

In 2010, Beechcraft fired one of its employees, Shawn Blakely, because of attendance issues. However, Blakely claimed that a stomach ulcer incapacitated him for three consecutive days; required him to seek medical attention; and limited his major life activities of working, eating and digesting. When he was fired, he filed a complaint for wrongful termination with the U.S. Department of Labor. Beechcraft subsequently rehired Blakely and admitted that the ulcer qualified as a serious health condition under the FMLA.

In 2014, Textron acquired Beechcraft, and Textron laid off Blakely later that year as part of a reduction in force. Beechcraft had been a subsidiary of Textron. On July 19, 2015, Blakely applied and interviewed for a position with Textron. He was hired by Textron on July 28. On Aug. 11, Textron sent Blakely congratulatory e-mails and requested paperwork to complete the onboarding process. On Sept. 8, Blakely was told by Textron that everything was "100 percent good to go" with his employment. Blakely's first day of work was set for Sept. 28.

However, on Sept. 11, Textron's HR professional called Blakely to rescind the job offer. Blakely claims HR said the offer was rescinded because of his previous employment with Beechcraft, telling Blakely, "You know what's in your file."

Blakely filed a complaint with the Equal Employment Opportunity Commission (EEOC) and received a right-to-sue letter on Aug. 31, 2016. He filed a complaint with the federal district court in Kansas alleging ADA discrimination, ADA retaliation and FMLA retaliation. Textron filed a motion to dismiss the complaint, claiming that Blakely did not have a claim for discrimination because he did not have a disability. It also claimed that Blakely could not establish a link between the alleged retaliation and Textron's refusal to hire him.

The court disagreed, rejecting the motion. To prove discrimination under the ADA, a plaintiff must show that:

  • He or she has a disability.
  • He or she is qualified to do the essential functions of the job with or without an accommodation.
  • He or she was discriminated against because of his disability.

To establish a disability under the ADA, an individual must have a recognized impairment and

substantial limitation of a major life activity. The court found that Blakely was disabled under the ADA because he had a recognized impairment—a stomach ulcer—that substantially limited a major life activity such as eating and digesting. Blakely was required to seek medical attention for his ulcer and missed work. The court based this disability finding on Blakely's "record of impairment" that was established while Blakely was previously employed by Beechcraft.

The court then found under the second factor that Blakely could perform the essential functions of the job because he was hired by Textron and the job offer was rescinded for something other than his ability to perform those duties.

Textron arguably could have discriminated against Blakely because of his disability, the court found. The court noted that Textron was aware of his past disability and past medical leave because it had access to his employee file from Beechcraft. Textron interviewed, hired and onboarded Blakely only to later inform him that it was rescinding the job offer.

As for the claims of retaliation under the ADA and FLMA, the court found that Blakely did enough to survive Textron's motion to dismiss. To prove ADA or FMLA retaliation, a plaintiff must show that:

  • He or she engaged in protected activity.
  • A reasonable employee would have found the employer's conduct adverse.
  • A causal connection exists between the protected activity and the adverse action.

Based on Blakeley's employment with Beechcraft, the court found that his requests for medical leave because of his ulcer constituted protected activity and that his leave was a reasonable accommodation.

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

Textron's rescission of the offer of employment was adverse conduct especially in light of the fact that the promise of employment with Textron caused Blakely to leave his current employer. Finally, the court could find that a causal connection between Blakely's past employment and medical leave with Beechcraft had an impact on Textron's decision to rescind his job offer. HR's alleged comment of "you know what's in your file" could create an inference as to Textron's unlawful motives.

Blakely v. Cessna Aircraft Co., D. Kan., No. 16-1423 (June 22, 2017).

Professional Pointer: Before making a hiring decision, an employer should thoroughly vet applicants, because rescinding a job offer can be construed as pretext for discrimination or retaliation.

Nick A. Nykulak is an attorney with Ross, Brittain & Schonberg Co. LPA, the Worklaw® Network member firm with offices in Cleveland and Columbus, Ohio.

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