Diversity & Inclusion

Interactions with Asperger’s: Discrimination, wrongful discharge claims go to trial

Soon after an employee provided his employer with information about his Asperger’s syndrome, it informed him that his contract wouldn’t be renewed because “Your Asperger’s got in the way of your ability to interact with your boss, and we are tired of it.” Afterward, the employee brought claims of wrongful termination and discrimination under the Americans with Disabilities Act (ADA). The employer attempted to persuade the court that even if all the evidence he presented was true, the employee would still be unable to prevail at trial. Let’s see how things turned out.  You Are Fired

Background

Mark Bellerose began working as a custodian at Mont Vernon Village School in 2006. In May 2007, he received his only annual performance appraisal, in which he was rated both “Very Good” and “Outstanding” and received a total of 52 out of 55 points.

Over the course of his employment, Bellerose made a number of oral complaints to various people about the conditions at the school and his supervisor’s failure to address them. For instance, he reported to a firefighter that his supervisor made no attempt to shut off the water supply to the school when the power was out for several days. At other times, he voiced his concern about the school’s maintenance practices to his supervisors and complained to members of the public about mold growing on classroom walls, ice dams on the school’s roof, a failure to regularly inspect the smoke alarm system, and his supervisor’s inadequate response (in his estimation) to other maintenance problems.

Bellerose received a warning about his failure to follow the “chain of command,” but he later alleged that he hadn’t been notified of a chain of command. After receiving the initial warning, he received a second written warning, in which he was reprimanded for failing to “complete the task of snow removal” during a holiday break. However, he stated that there was no need to shovel because it didn’t snow during that week. He eventually received a “final warning” for using profanity in front of a citizen and two children. To rebut that charge, he obtained statements from two other school employees who denied hearing him say anything inappropriate.

After learning that his Asperger’s potentially qualified as a disability, Bellerose provided information about his condition to the principal, who asked, “Is this you?” Bellerose replied, “Yes.” Months afterward, the principal told Bellerose that his contract wouldn’t be renewed because “Your Asperger’s got in the way of your ability to interact with your boss, and we are tired of it.” The following spring, he applied for, but was denied, a part-time custodian position at the school.

ADA discrimination

Relying on a report from a doctor who saw Bellerose in 2010, the school argued that he didn’t have Asperger’s during the relevant time period and therefore didn’t have a qualifying disability under the ADA. Bellerose presented a report in which an expert concluded that he does have Asperger’s, which is a lifetime condition, and that it substantially limits life activities such as “learning, concentrating, thinking, communicating and social interaction.” The court concluded that the school district’s evidence that it didn’t renew his contract or rehire him for reasons other than his disability merely created a credibility determination for a jury to sort out at trial.

Bellerose also argued that the substance of his disclosure to the principal that he has Asperger’s was enough to trigger the school’s obligation to initiate the interactive process. The ADA requires an employer to engage in the interactive process with an employee after he or she requests provision of a reasonable accommodation or when the employer knows that one is needed. The court concluded that Bellerose’s submission of documents explaining Asperger’s to the principal, and their resulting dialogue (“Is this you?” “Yes”), wasn’t an explicit request for a reasonable accommodation that triggered the school’s duty to engage in an interactive process. The court noted that Bellerose didn’t allege that his provision of the information was related in any way to his warning letters or his conduct, nor did he ask for any accommodation during his employment.

Wrongful discharge

For his wrongful termination claim to proceed to trial, Bellerose had to establish that the school terminated him in bad faith and that he performed acts that public policy would encourage. Because he made statements critical of school maintenance to many individuals outside the school and the school cited his statements in his written discipline, the court concluded that he had provided sufficient evidence that the school’s proffered reason for not renewing his contract was pretextual (an excuse for discrimination).

The court allowed Bellerose’s wrongful discharge claim to proceed to trial because the school district failed to challenge the public policy element of his claim. Mark Bellerose v. SAU #39, U.S. District Court for the District of N.H. Opinion No. 2014 D.N.H. 265 (December 29, 2014).

Bottom line

This case should remind employers that an employee with Asperger’s may be able to point to sufficient facts to prove that he or she has a disability within the meaning of the ADA. The condition’s effect on a broad scope of life activities, such as “learning, concentrating, thinking, communicating and social interaction,” could pose a unique dilemma for employers that are trying to satisfy their duty to reasonably accommodate employees.

This article was written by attorneys with Sulloway & Hollis, P.L.L.C.