The 7th Circuit Court of Appeals recently reiterated that the ADA-required interactive process is definitely a two-way street.
In Graham v. Arctic Zone Iceplex, the plaintiff was hired by the company to be head of maintenance. The company had noted some performance deficiencies and customer complaints after his employment but had not brought them to plaintiff’s attention prior to the time that he suffered a work-related injury which kept him from work for about three months. He returned to work with restrictions, including that he remain seated while working. The company gave him the job of sharpening skates, which company representatives stated that they believed he could perform while seated.
After a couple of months, plaintiff transitioned back to full duty and was assigned to the night shift, which the company stated was done in order to address seasonal needs. Plaintiff claimed it was a demotion. A few months after his reassignment, plaintiff had an accident with the Zamboni machine, causing damage to the ice rink. Plaintiff and the company disagree on the amount of damage caused by the accident, but the company terminated plaintiff on the day of the accident, citing five reasons for his discharge, including a poor attitude about his assignment, customer complaints, and insubordination. Plaintiff filed suit under the ADA, alleging that the company failed to accommodate his disability and then terminated him in violation of the ADA.
Plaintiff argued that the stated reasons for his discharge were pretext because, among other reasons, he was never told about his deficiencies or given warnings to improve. The court noted that in evaluating pretext, “the question is not whether the employer’s stated reason was inaccurate or unfair, but whether the employer honestly believed the reason it has offered to explain the discharge. Pretext requires more than just ‘faulty reasoning or mistaken judgment on the part of the employer; it is [a] lie, specifically a phony reason for some action.’ Arctic Zone’s decision to let something slide without a formal response does not mean that it went unnoticed or untallied. And even minor grievances can accumulate into a record that justifies termination.”
As to his failure to accommodate claim, the court noted that the plaintiff failed to notify the company that he could not sharpen skates while seated, therefore, thereby defeating his failure to accommodate claim.
Employers should note that although the company had not notified the employee of his performance deficiencies prior to his discharge, it had documented them. While best practice calls for employers to give notice and an opportunity to remedy minor performance problems, it may not be fatal to a defense as long as those issues are well documented at the time of their occurrence.
