ADA & Disabilities

If Employee Reveals Disability Shortly Before Termination, Does He Have a Bias Claim?

Earlier this year, an Ohio federal district court ruled that when an employee reveals a disability and requests an accommodation only after it becomes clear that his termination is imminent, the disclosure and accommodation request can be “too little, too late” to save him from being fired.Terminated

Facts

“Clark” was employed as Warren County Community Services, Inc.’s (WCCS), executive director from March 2011 to October 20, 2014. As the chief executive, he reported directly to WCCS’s board of trustees, which consisted of 16 members and had a subset of five members known as the executive committee. The executive committee had special supervisory authority over the executive director that included conducting an annual performance review. However, the full board appointed the executive director and was the only entity with the ability to remove him.

Clark was diagnosed with Parkinson’s disease around 2000. He claimed his symptoms worsened significantly in 2013 and 2014 and limited his ability to sleep, concentrate, engage in social interaction, and use his hands. He disclosed his diagnosis only to two WCCS employees—namely, the executive secretary and the IT director/HR manager. He disclosed the diagnosis to the IT director/HR manager to obtain a left-handed mouse and voice recognition software.

Clark had a generally positive relationship with WCCS until late 2013, when the long-serving president of the board died and was replaced by “Jack.” Upon becoming board president, Jack sought to expand the sparse and formalistic performance evaluations of the executive director.

In April 2014, based on input from the executive committee, Jack and another executive committee member met with Clark and gave him several new goals from the board to improve his overall performance. During the summer of 2014, the executive committee solicited written evaluations of Clark’s performance from both the full board and WCCS’s senior staff. Several comments expressed the opinion that Clark should no longer serve as WCCS’s executive director.

On September 24, 2014, the executive committee met with Clark to give him a formal performance review based on the feedback. The committee informed him that the evaluations from the board and staff were largely negative and noted that he had failed to improve in numerous areas previously identified as needing improvement.

After all present executive committee members expressed negative opinions of his job performance, Clark informed the committee of his Parkinson’s diagnosis for the first time. He told committee members that although his condition was not life-threatening, he “was going to need some accommodations.” When asked what kind of accommodations he needed, he mentioned a left-handed mouse, push-to-talk software, and “understanding.” About an hour after the meeting ended, Jack informed Clark that the executive committee was going to recommend to the full board that his employment be terminated.

The full board met on October 20, 2014, and voted to terminate Clark 11-1 (not all board members attended). He was eventually replaced by someone who was 3 years younger than he was. Clark filed a lawsuit in the U.S. District Court for the Southern District of Ohio claiming age and disability discrimination under federal and Ohio law.

Court’s Decision

After the completion of discovery (the pretrial exchange of evidence), WCCS filed a motion seeking judgment in its favor on all of Clark’s claims without a trial. The court dismissed Clark’s age discrimination claim because although his replacement was younger than he was, the replacement was not “substantially younger.”

Clark was born in 1956, and his replacement was born in 1959. The court cited case law that an age difference of less than 6 years cannot support an age discrimination claim absent direct evidence that the employer considered age in its decision to terminate an employee.

The court ruled that Clark’s federal and state disability discrimination claims failed as a result of his untimely disclosure of his disability. The court agreed with WCCS’s argument that even if Clark is disabled and made a request for reasonable accommodations, he didn’t have a viable disability discrimination claim because WCCS presented evidence that clearly established that the executive committee was going to recommend that his employment be terminated before it learned about his Parkinson’s diagnosis.

According to the court: “The writing was on the wall long before [Clark] had divulged his diagnosis, and [WCCS] was not required to reverse the process already in motion solely because [he] mentioned that he had a disability.” Salzbrun v. Warren County Community Services, Inc., Case No. 1:16-cv-402 (S.D. Ohio, July 13, 2017).

Takeaways

If an employee does not reveal his disability to decision makers until his termination is “imminent,” the employer is not necessarily required to reverse course and take a different path. However, if you are confronted with this situation, proceed cautiously. In this case, there was strong evidence from a number of witnesses and documents that Clark’s termination was in fact imminent.

Franck G. Wobst, an editor of Ohio Employment Law Letter, and can be reached at fwobst@porterwright.com or 614-227-2266.