Inconsistent Reasons for Termination Revive ADA Claim

By Bryant S. Banes Aug 31, 2016

A lower court improperly granted summary judgment in a retaliation case where the evidence showed inconsistencies in the employer's stated reason for terminating an employee, the 10th U.S. Circuit Court of Appeals held. In reversing summary judgment and remanding for further proceedings, the 10th Circuit determined that a reasonable jury could find the employer's reason was a pretext "because it is so inconsistent and contradictory as to be unworthy of belief." 

In November 2004, Eugene Foster began working at Mountain Coal Company LLC's West Elk Mine in Colorado. On Feb.  5, 2008, Foster turned his head quickly while working and felt a pop in his neck. He missed work from Feb. 6 to March 28. The 10th Circuit noted that Foster asked for an accommodation for a disability twice, once on April 3 and again on April 11. After a few meetings where the employer questioned whether the accommodation notice was sufficient or on the right company form, Mountain Coal terminated Foster, effective April 9, 2008, by letter dated April 11, 2008. 

The appeals court found that Foster's deposition testimony recounting an April 3 meeting—where he asked for the company's cooperation with an upcoming surgery and associated recovery—was enough to avoid summary judgment. Although Mountain Coal argued that Foster's request failed to provide it notice that he was requesting an accommodation, the 10th Circuit found that a reasonable jury could conclude otherwise. 

The court rejected the employer's position that Foster's request was inadequate to put Mountain Coal on notice of a disability because it wasn't on the right form, that Foster did not state that he had actually scheduled surgery, and that Foster didn't indicate how many days of leave he would need and when he would need to take them. 

Mountain Coal did not contest that Foster made an adequate request for accommodation on April 11. Instead, the employer used as its defense that Foster was fired on April 9 with an April 11 letter. In rejecting this defense, the 10th Circuit said that a jury could find that the company's termination letter was typed after Foster's request for an accommodation. The 10th Circuit noted that this "suspicious timing allows the inference that Mountain Coal learned of Foster's request and terminated him because of it." 

The 10th Circuit bolstered its findings with inconsistent employer testimony. Two managers said that Foster's employment was terminated because he lied about providing human resources the return-to-work form on April 9. However, another manager testified that the company terminated Foster's employment because Foster's return-to-work form didn't have the right date for his release. Although this manager later gave a different reason on cross-examination, the 10th Circuit said a reasonable jury could hold the manager to the reason he first gave for the termination: an incorrect date on Foster's return-to-work form.

Foster v. Mountain Coal Co. LLC, 10th Cir., No. 15-1025 (July 26, 2016).

Professional Pointer: This case is a reminder of what happens when an employer elevates form over substance in the context of a retaliation claim. Rather than seeking to accommodate an employee for a reasonable request, the company focused on whether the employee was putting it on the right form or had expressed his request in the right language. Courts have little patience for employers that seek to impose strict rules on employees who are seeking accommodation because they are sick. They have even less patience when managers can't get their story straight about why they terminated someone. 

Bryant S. Banes is an attorney with the Worklaw® Network member firm of Neel, Hooper & Banes in Houston. 


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