A recent opinion from the U.S. 10th Circuit Court of Appeals—which covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming—involving Tulsa, Oklahoma’s American Airlines facility is a reminder of the kind of evidence required to establish retaliation.
Worker Sues After Failing Test, Losing Position
“Lindsey,” who is African-American and has dyslexia, hearing problems, and a learning disability, filed suit against American Airlines after being rejected for a hazardous materials cleanup position. She had worked as a building cleaner for the airline for many years. In 2012, American Airlines outsourced its building cleaner positions and entered into an agreement with its union to allow existing building cleaners to move into maintenance support positions. Lindsey and five other employees then applied for hazardous waste maintenance jobs.
The hazardous waste maintenance position required workers to access an online database and read cleanup instructions for specific chemical spills. Additionally, after 180 days, workers were required to pass a test to demonstrate their competence. To assist workers in passing the test, American Airlines provided classroom instruction and training and had them shadow senior hazardous waste maintenance support employees for 6 months.
Lindsey was given at least 2 weeks’ notice of her test date. She did not ask for an accommodation of her dyslexia or hearing problems. However, during the test preparation period, she complained to her supervisor that she was not being adequately prepared because she is a black woman. Lindsey failed the test. Because her previous job had been outsourced, she could not return to it. American Airlines terminated her employment, and she sued for race and disability discrimination and retaliation.
Court Says Accommodation Request Was Inadequate
To establish disability discrimination, Lindsey was required to show that (1) she engaged in “protected activity by demonstrating that she had made a request for accommodation that was sufficient to qualify as a protected activity; (2) . . . she suffered an adverse action; and (3) [there was] a causal connection between [her] protected activity and the adverse action.”
The 10th Circuit found that Lindsey’s disability discrimination claim failed because of the nature of her request for an accommodation. The court said a request must make clear that the employee wants assistance with her disability. It reiterated the familiar concept that if an employer does not know that an employee has engaged in protected activity, it cannot retaliate against her because of the protected conduct.
Lindsey argued that she engaged in protected activity in a number of ways, including (1) providing a doctor’s note stating she had a disability to an unidentified person or department several years before and (2) requesting oral administration of the exam and exam preparation. Also, after she failed the test, she presented a doctor’s note stating she had dyslexia and required oral exams.
The court found that the first doctor’s note was not sufficiently direct or specific to constitute notice of a disability. It also found that Lindsey’s requests to have the exam administered orally were not sufficiently linked to a disability to constitute notice of a disability. The doctor’s note she submitted after she failed the test was rejected as a reasonable accommodation request and as a basis for unlawful retaliation because her employment had already been terminated.
In the 10th Circuit, a retaliation claim may proceed if there is a sufficiently short period of time between the employee’s protected activity and the alleged retaliation. Because Lindsey could not remember when she complained that she was not being adequately prepared for the test, she could not rely on temporal proximity to support her claim.
In addition, the court found that even if Lindsey established prima facie (minimally sufficient) claims of race and disability discrimination, she failed to show that the reason for her termination—i.e., the outsourcing of her previous job and her failure to pass the test for the hazardous waste maintenance position—was a pretext (excuse) for unlawful retaliation. Lindsey argued that American Airlines’ failure to engage in the interactive process was evidence of pretext.
Again, the court disagreed, reiterating that the employee must make an adequate accommodation request before the employer’s duty to engage in the interactive process is triggered under the Americans with Disabilities Act (ADA). Neither the initial doctor’s note, Lindsey’s vague request for an oral exam, nor the doctor’s note provided after her termination gave American Airlines such notice.
The appeals court affirmed the district court’s grant of summary judgment (dismissal without a trial) in favor of American Airlines. Pittman v. Am. Airlines, Inc., 2017 FEP Cases 194139 (June 8, 2017).
Bottom Line
American Airlines caught a few breaks in this case because Lindsey was not specific in her request for an accommodation and had a faulty memory. Most employees who request an accommodation provide the requisite specificity to trigger the employer’s duty to engage in the interactive process. Documenting employees’ specific accommodation requests and your efforts to accommodate is key to successfully defending ADA lawsuits.
Kathy Neal, contributor to Oklahoma Employment Law Letter, may be reached at kathy.neal@mcafeetaft.com.