In a recent case, emails from an employee’s managers were evidence that the employer’s reason for her loss of assignment—reduction in force—was a pretext for disability discrimination. Kelly v. Ports Am. Mgmt. Corp. (Cal. Ct. App. 2014).
Kelly, a union employee, suffered shoulder and back injuries that required her to take a leave of absence beginning in September 2008. Kelly notified the union of her need for leave, but did not communicate with her managers. Six months later, when Kelly contacted her managers about returning to work, they expressed annoyance and frustration over her failure to provide them with notice of her leave and ongoing reports on her status. They said they needed to speak to HR before they could discuss her return. When they contacted Kelly again, they told her that she had lost her steady work assignment and referred her to the union dispatch hall for work.
Kelly sued the company alleging that the real reason she lost her assignment was due to her disability. At trial, the company said that Kelly lost her assignment in a seniority-based reduction in force. Kelly argued that her managers had not said anything about a reduction in force when they spoke to her. She offered emails from her managers, which she said showed their frustration and annoyance with her failure to provide notice before her leave. She also referred to her excellent performance record and said that the company normally did not do reductions in force based on seniority.
The court found that the company had gone through a reduction in force that affected several employees. However, because that reduction in force had occurred three months prior, the court did not believe that Kelly’s loss of assignment was related. In addition, the court said that the temporal proximity between Kelly’s loss of assignment and her request to return to work could persuade a jury that the company was really acting because of Kelly’s leave. The court allowed Kelly’s case to proceed to trial based on evidence that the employer lied, and other suspicious circumstances, surrounding her loss of assignment. The court said employers cannot use a reduction in force as a “convenient opportunity” to get rid of a disabled employee.
The takeaways for employers are to train managers on what statuses are protected and how to properly communicate with employee about leaves. Employers should be truthful about the reason for an employee’s seperation and not use reductions in force as opportunities to get rid of “problem” employees. In a legal challenge, lying about the reason for the separtion only makes things worse. When caught in a lie, nothing the employer says from that point forward has to be believed. Moreover, dishonesty allows a judge or jury to assume the worst—that the employer lied to cover up a violation of the law.