Worker Failed to Show Pretext Following Contract Nonrenewal

By Christopher V. Anderson Oct 3, 2014
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The district court properly dismissed a former employee’s retaliation claim under the Americans with Disabilities Act (ADA) because she failed to prove that the employer’s performance-based reasons for her termination were a pretext for discrimination, the 1st U.S. Circuit Court of Appeals ruled.

Since 2006, the plaintiff, Maria Collazo-Rosado (Collazo) had been employed at the University of Puerto Rico as the mentorship coordinator in charge of the training and supervision of all student mentors and tutors. She had lived with Crohn’s disease since at least 2005. During her initial job interview, she made sure to inform the university about the disease and her need for specific accommodations relating to bathroom access and time away from work for medical appointments. It was undisputed that she had been provided the requested reasonable accommodations.

Despite a seemingly positive first few years of employment, Collazo lodged complaints in 2009 with the union and the Equal Employment Opportunity Commission that she was being unfairly treated and humiliated based on her disability, and she formally requested accommodations. In August 2009, the university informed Collazo that it was not renewing her contract, citing the need to restructure the tutoring and mentoring program.

While not stated in the nonrenewal notice, the restructuring decision was based in large part on issues with Collazo’s performance and attendance. Specifically, during 2009 the university was presented with evidence showing that Collazo was failing to properly train and supervise her student mentors and tutors, and, as a direct result, they were consistently shirking their responsibilities to the overall detriment of the program. That evidence led to a greater scrutiny of the program’s performance generally and Collazo’s performance specifically. All personnel were reminded to properly utilize the timekeeping system; however, Collazo continued to come in late, leave early, and leave the premises for extended periods of time within the workday without requesting or receiving the proper approval. These performance and attendance issues resulted directly in a “below expectations” performance evaluation in June 2009.

When Collazo brought her lawsuit alleging retaliatory discharge under the ADA, the university’s legitimate, nondiscriminatory reason for the termination was based on both the need to restructure the program and evidence of Collazo’s poor performance and attendance. Collazo had the burden of showing that the university’s stated reasons were pretextual. The crux of her pretext theory was that the attendance or performance issues were not stated in the university’s nonrenewal notice. Rather, she claimed, the university “conjured” them “out of thin air” to bolster its defense.

The 1st Circuit rejected Collazo’s arguments based on the fact that there is no case law, statute or other rule requiring an employer to provide each and every ground for termination. In addition, the court found that “the record undoes [her] claim that the performance and attendance rationales were a sham dreamed up by the defendants after her nonrenewal to hide their retaliatory intentions.” It was precisely those issues which precipitated the need for the university to restructure the program. Therefore, the fact that the university chose not to take more-serious disciplinary action prior to the nonrenewal in no way indicated that the evidence was “inaccurate or insincere.”

Collazo-Rosado v. University of Puerto Rico, 1st Cir., No. 13-1641 (Sept. 2, 2014).

Professional Pointer: It is always wise to ensure that the reasons given for termination are, in fact, the real reasons. In addition, proper documentation of the basis for those reasons should always be maintained, in order to stand as evidence in support of the employer’s rationale, in the event of litigation.

Christopher V. Anderson is an attorney in the Charleston, S.C., office of Ogletree Deakins, a labor and employment law firm representing management.

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