When do legitimate reasons to terminate an employee become pretext for disability discrimination? In Burton v. Freescale Semiconductor, Inc., the U.S. Court of Appeals for the Fifth Circuit considered this question, as well as whether two employers had violated the Americans with Disabilities Act (ADA).

Temp worker is terminated

The plaintiff started working as a temporary employee at a manufacturing company in 2009. In January 2011, the plaintiff broke the manufacturer’s equipment and received counseling from her staffing agency. Subsequently, she inhaled chemical fumes at work and, two months later, went to the emergency room with heart palpitations. The plaintiff believed that her health condition was caused by the fume exposure, and she filed a workers’ compensation claim.

In June 2011, contrary to company rules, the plaintiff was seen using the Internet. She was terminated soon after. The employee who made the decision to terminate the plaintiff relied on reports from the plaintiff’s supervisors. But it was unclear whether he made the choice before or after the Internet incident.

Agency discourages action

At the time of termination, the staffing agency requested that the manufacturer provide it with supporting documentation. The manufacturer generated retrospective documents. The staffing agency responded by recommending that the plaintiff not be terminated, citing lack of documentation and the plaintiff’s existing workers’ compensation claim.

Nevertheless, the manufacturer insisted that the staffing agency terminate the plaintiff based on four factors:

1. Poor performance reviews,
2. Broken equipment,
3. Unauthorized use of the Internet, and
4. Continued poor performance after the termination decision was made.

The staffing agency eventually acquiesced and terminated the plaintiff. Soon after, she filed a claim with the Equal Employment Opportunity Commission (EEOC) and in court, alleging discrimination in violation of the ADA. But the trial court found in favor of the employers, holding that they had asserted legitimate reasons for termination. The plaintiff appealed.

Court reverses decision

To succeed on an ADA discrimination claim, a plaintiff must make a prima facie showing of employment discrimination. If that showing is made, the employer then needs to articulate a legitimate nondiscriminatory reason for the adverse employment action. The burden next shifts back to the plaintiff to show, through substantial evidence, that the employer’s reasons were pretextual.

The appeals court stated that, based on the evidence, there was a genuine issue of material fact as to whether the employee’s termination for poor work performance was pretextual. It held that, while the employers noted poor performance, the plaintiff’s performance reviews were actually positive because any negative comments were offset by statements that the plaintiff had made significant improvement.

The court also found that there was conflicting evidence about when the manufacturer learned of the plaintiff’s Internet use. If it had been informed of the incident after the termination decision, the Internet use would be false and pretextual.

As for the employers’ offered reason of continued poor performance after the termination decision was made, the court held that evidence of a sudden and unprecedented campaign to document the plaintiff’s deficiencies to justify a decision that had already been made could raise an inference of pretext. On the other hand, the court decided that the manufacturer’s second reason, breaking equipment, could indeed evidence poor performance.

However, both employers provided misleading information to the EEOC regarding the reasons for the plaintiff’s termination, not to mention that the termination decision occurred shortly after she’d filed a workers’ compensation claim. All of this could lead to an inference of pretext, so the appeals court reversed the trial court’s decision.

Don’t delay

If you find you need to terminate an employee, take great care to document all contributory incidents and examples of poor performance as soon as they occur. Failing to do so may lead to a discrimination claim.  

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