Disability-Discrimination and Retaliation Claims Go to a Jury

A production supervisor with a disability could pursue his claims for discriminatory and retaliatory termination because there were disputed issues of fact that should be heard by a jury, the U.S. District Court for the District of New Jersey decided.

The production supervisor claimed that the employer terminated his employment in February 2018 on the basis of his disability in violation of the New Jersey Law Against Discrimination and in retaliation for his disability-related leaves of absence in violation of the Family and Medical Leave Act (FMLA). The employer maintained that it discharged the supervisor for unsatisfactory job performance—specifically, his failure to address employee violations of the company's break policy.

The plaintiff began work at the company's production facility in October 2014. In 2016, he was promoted to the position of production supervisor. He shared authority with a more experienced supervisor over the "D crew," one of the facility's two night-shift crews. In January 2017, the plaintiff received a mixed performance review resulting in an overall assessment of "progressing."

Later in 2017, due to serious and chronic kidney disease, the plaintiff twice took leave under the FMLA. On the plaintiff's return to work after both leaves, his own doctor recommended certain work restrictions; in both cases, the company doctor cleared him to work without restriction.

In the fall of 2017, the facility manager launched an investigation into suspected break-time abuse among both C crew and D crew employees. He hired a private investigator to conduct surveillance. The investigation, which ended in mid-December, revealed many violations of the break policy by employees on both night-shift crews. Due to his medical leave, the plaintiff had been on duty for only two of the dates on which members of his crew were observed violating the break policy.

Following a meeting in January 2018 to discuss break-policy violations, the company terminated both C crew supervisors, but only one of the D crew supervisors—the plaintiff. The stated reason was the plaintiff's poor performance—specifically, that he had known about the break-policy abuses and had done nothing about it. The other D crew supervisor had brought the excessive break-time issue to management's attention after the investigation had started.

On its motion for summary judgment on the disability-discrimination and retaliation claims, the employer had to show that there was no genuine issue as to any material fact, such that it was entitled to judgment as a matter of law—that is, without the need for a trial. To defeat that motion, the plaintiff then had to show that there were key facts in dispute so as to justify sending the case to a jury.

To evaluate both claims, the court applied a well-established three-part framework:

• An employee must establish the threshold elements of a claim to raise a presumption of unlawful discrimination or retaliation.
• To overcome the presumption, the employer must offer evidence of a legitimate, nondiscriminatory reason for the adverse employment action.
• If the employer has produced such evidence, the employee then must show that the employer's stated reason was merely a pretext for discrimination or retaliation.

On the disability-discrimination claim, after determining that the plaintiff and the employer had satisfied the first two elements of this analysis, the court focused on whether the plaintiff had produced evidence of the employer's discriminatory intent. The court cited abundant evidence that could cause a factfinder to doubt the employer's stated justification, most significantly that the plaintiff had been on leave during almost the entire investigation and that the co-supervisor had not contributed significantly to addressing the problem. On that basis, a jury could reasonably reject the employer's claim that the plaintiff's poor performance was the true reason for termination.

As to the plaintiff's FMLA claim, the court found similarly that the plaintiff had presented enough evidence to raise a presumption of unlawful retaliation, notably that the employer terminated the plaintiff just over two months after his return from a four-month FMLA leave and had not made the doctor-recommended accommodations for the plaintiff's disability. Despite the employer's evidence of a legitimate reason for the termination, the retaliation claim suffered from the same weaknesses as the discrimination claim. There was sufficient evidence of retaliation to support taking the claim to a jury.

Accordingly, the court denied the employer's motion for summary judgment on both claims.

McGuinness v. Silgan Containers, D. N.J., No. 18-12861 (Oct. 13, 2020).

Professional Pointer: In a wrongful termination case, the employer must overcome jurors' tendency to empathize with the hardship and trauma associated with losing a job, especially, as in this case, when the plaintiff has a serious disability. Accordingly, preventing a case from going to a jury is a high-stakes proceeding. What's more, losing a summary judgment motion raises the settlement value in such a case.

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.