Worker Fired for Zamboni Slip-Up, Not Disability

 

By Roger S. Achille October 1, 2019
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​The 7th U.S. Circuit Court of Appeals dismissed a former employee's claim that his termination violated the Americans with Disabilities Act (ADA), since his employment record included numerous customer complaints and an accident that jeopardized customer safety.

In December 2014, Arctic Zone Iceplex hired the plaintiff as head mechanic and maintenance supervisor responsible for maintaining its ice-skating rink and operating its Zamboni. Customers complained about the plaintiff's attitude shortly after he began working at the rink. Arctic Zone also observed the plaintiff's attitude problems firsthand, as well as his difficulty completing tasks on time. Nevertheless, the plaintiff was not written up for either the insubordination or timeliness issues when they occurred.

From February to May 2015, the plaintiff missed work due to a workplace injury. He returned to work with medical restrictions, including the requirement that he work sitting down. As an accommodation, Arctic Zone assigned the plaintiff to the task of sharpening ice skate blades. Starting in August 2015, as the plaintiff transitioned back to full-time work, Arctic Zone assigned him to work evenings, which it attributed to seasonal need. The plaintiff characterized this as a demotion to the position of night mechanic.

In October 2015, the plaintiff caused a Zamboni accident that resulted in jagged plastic protruding from the rink wall, creating a hazard to customers. Arctic Zone fired the plaintiff on the day of the accident for the following reasons, stated in his termination notice: poor attitude about his change in position, poor attitude toward customers, lack of timeliness in completing his duties, insubordination with management and the Zamboni accident.

The plaintiff alleged that Arctic Zone fired him because of his disability, in violation of the ADA. The ultimate question in a discriminatory employment termination case is whether the plaintiff would have kept his job if he or she did not have a disability and everything else had remained the same. One way to demonstrate that the answer to this question might be yes is by showing that the stated reasons for the firing were pretextual. In evaluating pretext, the question is not whether the employer's stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it offered to explain the discharge.

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

The plaintiff asserted that the behavioral problems cited in the termination notice could not be legitimate bases for his termination because he had received no written notice or discipline for them before the Zamboni accident. However, the court remarked that a reasonable jury could not conclude that Arctic Zone was lying about the impact of these violations solely because it "held its tongue" when they occurred.

The plaintiff additionally argued that his supervisor's testimony that the plaintiff's position never changed when he began working nights contradicted Arctic Zone's assertion that he was unhappy about his "change of position" when he became the night mechanic. Recognizing that the plaintiff's schedule was the only meaningful change, and his compensation and title remained constant, the court concluded that a "minor inconsistency" in the use of the term "position" did not support an inference of bad faith.

Finally, the plaintiff argued that Arctic Zone overstated the seriousness of the Zamboni accident, which ultimately cost around $150 in repairs, and treated him differently from another employee who was not fired after causing a similar accident of roughly $1,500 in damage. Arctic Zone countered that it did not know how much his accident would end up costing when it fired the plaintiff.

Moreover, the employee who caused the previous accident had a "sterling" employment record prior to the accident, and that accident did not create a hazard for Arctic Zone's customers. The 7th Circuit reasoned that since the plaintiff had several strikes against him before the Zamboni incident, and the previous accident caused by the other employee did not pose a danger to customers, the two employees were not similarly situated enough for the court to infer that the stated reasons for their different treatment were pretextual.

Graham v. Arctic Zone Iceplex LLC, 7th Circuit, No. 18-3508 (July 23, 2019).

Professional Pointer: Ignoring an employee's deficiencies fails to put the employee on notice of unacceptable performance, can perpetuate false impressions of satisfactory performance and can hinder an employer's future remedial action due to the lack of supportive documentation.

Roger S. Achille is an attorney and a professor at Johnson & Wales University in Providence, R.I.

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