By Steve Jones
The U.S. 8th Circuit Court of Appeals (which covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) recently affirmed a district court’s ruling that an employee failed to establish a case of disability discrimination and retaliation.
As you’ll recall in part one of this article, “Willow” a cancer survivor with long-lasting side effects, was terminated from her position at Medtronic. Medtronic cited poor performance, among other reasons, in its decision to terminate Willow.
Willow filed an Americans with Disabilities Act (ADA) suit against Medtronic claiming her status as a cancer survivor as a disability. The district court ruled for Medtronic, concluding she hadn’t proven that her firing was related to her disability or that her protected activity resulted in her termination. Willow appealed to the 8th circuit.
8th Circuit’s Decision on the Discrimination Claim
The ADA prohibits covered employers from discriminating against a qualified individual on the basis of disability. When the employee can provide no direct evidence of discrimination, she first must establish that (1) she is disabled within the meaning of the ADA, (2) she was qualified to perform the essential job functions, and (3) a causal connection exists between the adverse employment action and her disability.
The burden then shifts to the employer to show a legitimate nondiscriminatory reason for the adverse action. Finally, the employee must show that the proffered reason was, in reality, a pretext, or false excuse, for discrimination.
Willow’s theory was that her bout with cancer left lingering, long-term effects—a suppressed immune system, cardiomyopathy, and other unspecified side effects from her treatment—which caused frequent absences from work for medical appointments and left her in need of certain accommodations, such as teleworking and a schedule that allowed her to attend her appointments without missing work. She claimed Medtronic fired her because it didn’t want to accommodate her scheduling needs, thereby discriminating against her on the basis of her disability.
The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities of [an] individual.” The 8th Circuit pointed out that cancer is an impairment, the functioning of one’s immune system is a major life activity, and Congress has instructed the courts to determine whether a limitation is substantial in light of its command to interpret disability broadly under the ADA Amendments Act (ADAAA).
Further, under the ADA, “an impairment that is . . . in remission,” as was Willow’s cancer, the court noted, “is a disability if it would substantially limit a major life activity when active.” Therefore, Willow’s cancer, even while in remission, was clearly a covered disability under the ADA.
Willow argued that the district court took an inappropriately narrow view of her disability, treating it as a past event when in fact it is a continuing condition with extended effects. Essentially, she appeared to argue that both her cancer and the substantial limitations it has placed on her health are “disabilities” under the ADA.
Medtronic responded that Willow did not make this argument in the district court and that she alleged only her bout with cancer itself as a disability. Ultimately, however, the 8th Circuit stated it did not matter how it characterized the effects of her bout with cancer. There was evidence in the record supporting a causal connection between the cancer and certain effects of her long-term health problems. In either event, her claim’s causation issue rose or fell on the existence of a causal connection between the challenged employment action and those long-term health problems.
8th Circuit: Mixed-Motive Causation
The 8th Circuit applied a mixed-motive causation standard, allowing claims based on an adverse employment action that was motivated by both permissible and impermissible factors. (The court declined to address whether ADA discrimination claims now require a but-for causation standard like discrimination claims filed under the Age Discrimination in Employment Act (ADEA) because Medtronic was entitled to dismissal without a trial even under the less restrictive mixed-motive causation standard.)
The issue, then, was whether the evidence supported the conclusion that absences caused by Willow’s cancer-related health problems and her need for accommodations motivated Medtronic’s decision to terminate her. The court found that the decision to fire her was made because she rejected the settlement offer, which in turn was caused by her suspension for failing to meet the requirements of the CareLink position and her PIP.
Giving her the benefit of all reasonable inferences, the court assumed that the CareLink job carried impossibly difficult responsibilities and that Mary and Tiffany assigned her to it in hopes of finding cause to suspend or terminate her. Therefore, the court decided not to consider her inability to keep up with her duties in that position as the true cause of her firing.
It was clear to the court that Mary and Tiffany had myriad concerns with Willow’s performance. She gave incorrect and potentially life-threatening advice concerning a patient’s pacemaker. She was perceived by her managers as insolent and threatening and admitted attempting to undermine their authority. She failed to follow Medtronic’s procedures and was repeatedly present in interactions with customers that gave rise to complaints. These problems certainly provided a permissible basis for Medtronic’s concern.
Willow argued that the evidence supported the inference that Medtronic had impermissible motives. She pointed to two indications that Mary and Tiffany were motivated by her disability: (1) her frequent need to be absent for medical appointments and (2) her scheduling and other accommodations.
First, the court agreed that Willow’s absenteeism did appear, in part, to motivate Mary’s and Tiffany’s negative view of her performance. They brought up her absenteeism to her on at least two occasions, and Mary overestimated her absenteeism rate three times.
What was less clear to the court was the causal connection between Willow’s absences and her disability. She generally claimed that she needed to make frequent medical appointments because of health problems caused by her cancer, testifying that she was ill at least four times a year and saw her physician every 4 weeks because of a risk of stroke or heart attack related to the cancer.
But the court said her claim wasn’t supported by medical evidence of any specific appointments and the health issues for which they were necessary. Were the court to extend the reach of reasonable inference to the questionable conclusion that any illness-related absence of Willow’s was necessarily caused by her suppressed immune system, it would reach only her absences for whooping cough and an unidentified lung illness. She presented no medical evidence diagnosing her with either alleged affliction, and no evidence connected her absences for other identified medical issues to her disability.
Second, Willow argued that Mary’s belief that she might not have had cancer and was lying about it could have given rise to an inference that Mary didn’t think her accommodations were necessary, she didn’t want to provide the accommodations, and this in turn caused her to take a negative view of Willow’s performance. This inference was supported by Mary’s reluctance to provide Willow with an exception to Medtronic’s teleworking policy and to provide her with a 7:00 a.m. start time.
But the court pointed to other evidence that undercut this inference. Medtronic granted nearly every accommodation request made by Willow, and its insistence on a 9:00 a.m. start time had a legitimate business justification. Further, the 9:00 a.m. start time accommodated her need to attend medical appointments, just not precisely in the manner she would have preferred. The court also noted that Mary’s statement questioning whether Willow had suffered from cancer was made in a deposition years after the events in question, minimizing its relevance.
In this context, the 8th Circuit agreed with the district court that there wasn’t a strong enough causal connection to support Willow’s discrimination claim.
8th Circuit’s Decision on the Retaliation Claim
Willow also claimed Medtronic fired her in retaliation for asserting her ADA rights during her meeting with Bruce and rejecting the settlement offer. According to the court, the ADA provides that “no person shall discriminate against any individual because [she] has opposed any act or practice made unlawful by [the ADA].” A retaliation claim, the court explained, requires the employee to show (1) she engaged in statutorily protected activity, (2) she suffered an adverse employment action, and (3) a causal connection exists between the two.
An ADA retaliation claim requires a but-for causal connection between the employee’s assertion of her ADA rights and an adverse action by the employer. The district court had determined Willow could not show causation. Medtronic had cause to fire her because of her performance issues. She presented no evidence that any purported statements she made to Bruce at their meeting motivated Medtronic’s decision to fire her, and her rejection of the proposed settlement agreement wasn’t protected under the ADA.
The 8th Circuit could find no evidence of a retaliatory motive on Medtronic’s part to support a showing of causation, even under the mixed-motive standard. Therefore, the court affirmed the judgment for Medtronic on this claim as well.
The ADA protects even individuals whose impairment is in remission if the impairment would substantially limit a major life activity when active. However, an employee claiming discrimination based on such an impairment must provide evidence that the employer’s adverse treatment of her was motivated by the impairment.