On July 14, 2020, the 7th Circuit affirmed an order of summary judgment in favor of a defendant-employer in an age discrimination and disability discrimination lawsuit under the Age Discrimination in Employment Act ("ADEA") and the Americans with Disabilities Act ("ADA"). McCann v. Badger Mining Corporation, No. 19-2420 (7th Cir. July 14, 2020). The plaintiff alleged that her former employer discriminated against her on the basis of her age and disability when it failed to transfer her to a position in a different department, and when it eliminated her employment position as part of a reduction in force. On appeal, the plaintiff only challenged the grant of summary judgment on her ADA claim as to the elimination of her position. The 7th Circuit concluded that under the ADA, the plaintiff was required, but failed to come forward with evidence that, but for her disability, the defendant would not have eliminated her position.
To state a disability discrimination claim under the ADA, the plaintiff was required to plead and prove that: (1) she was disabled within the meaning of the ADA; (2) she was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (3) her disability caused the adverse employment action. To establish causation, the plaintiff was required to demonstrate that but for her disability, the defendant would not have terminated her employment. The 7th Circuit agreed with district court, that the plaintiff had not shown that her disability was the reason that the defendant eliminated her position.
The evidence upon which the plaintiff relied included: (1) suspicious timing; (2) management discussion regarding how to handle her disability; and (3) some indication that the defendant's proffered reasons for retaining one of the plaintiff's coworkers were pretext for discrimination. The ultimate question in an employment discrimination termination case is whether a reasonable jury could conclude that the plaintiff would have kept her job if she was not a member of the protected class, and everything else had remained the same.
One way of meeting this burden is for the plaintiff to show that the employer's stated reasons for the subject adverse job actions were pretextual. In evaluating pretext, the question is not whether the employer's stated reasons were inaccurate or unfair, but whether the employer honestly believed the reasons. Pretext requires more than just faulty reasoning or mistaken judgment on the part of the employer; rather, the plaintiff must show that the reason given is a phony reason for the adverse job action.
The plaintiff contended that one of the defendant's criticisms of her job performance was a deliberate falsehood, and that it changed its rationale in connection therewith. An employer's shifting and inconsistent explanations can establish pretext. The 7th Circuit concluded, however, that the defendant's rationale did not shift in a way to suggest it was a pretext. The plaintiff also claimed that she had raised a genuine issue of material fact as to the defendant's conclusion that she had certain performance difficulties. Pretext is not established when an employer is wrong about an employee's performance, or is too hard on an employee, but when the employer's proffered reason is a lie. Regardless of whether the manager's assessment of the plaintiff's work skills was accurate, the defendant's subsequent actions established that its manager's belief was genuinely held. The plaintiff further contended that the defendant's other performance-based reasons for choosing to eliminate her position were implausible and unworthy of credence. However, she presented no evidence sufficient to demonstrate that the manager did not honestly believe those reasons.
The plaintiff also argued that suspicious timing raised an inference that her position was eliminated because of her disability. Suspicious timing alone, particularly when there are reasonable, non-suspicious explanations for the timing, is rarely enough. In this case, the potential elimination of the plaintiff's position preceded her giving notice to the defendant of her disability and, therefore, the timing was not suspicious.
Lastly, the plaintiff maintained that there were ambiguous statements of animus from which disability discrimination could be inferred. But the statements indicated nothing more than knowledge of her health condition, a concern for the origin of her injury, and an attempt to cover any labor shortages resulting from her absences. An employer's knowledge of, and conscientious responses to, an employer's disability are not evidence of discrimination.
Because the plaintiff failed to present evidence from which a reasonable jury could conclude that but for her disability, her position would not have been eliminated, summary judgment was appropriate.