In employment discrimination cases, there are two kinds of cases (those involving direct evidence and those involving indirect evidence). Direct evidence cases are the proverbial smoking gun. That is, the plaintiff has explicit evidence that discrimination occurred. However, in most situations, it is difficult if not impossible to find direct evidence, rather things taken together (indirect evidence), indicate discrimination. To deal with the situation of indirect evidence, the United States Supreme Court in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), set forth a paradigm that works as follows. First, the plaintiff has to establish a prima facie case of discrimination (see blog entry on motion to dismiss for some helpful thoughts on that). Second, if the plaintiff succeeds in establishing a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for the employee’s rejection. Third, if the defendant is able to articulate a legitimate nondiscriminatory reason for the employee’s rejection, the plaintiff must then prove by a preponderance of the evidence that the legitimate, nondiscriminatory reason offered by the defendant were a mere pretext for discrimination. Throughout, the plaintiff has the ultimate burden of persuasion at all times. McDonnell Douglas has a fourth step, which said that after the person have been rejected, position remained open and the employer continue to seek applicant from persons of the plaintiff’s qualifications.

If you are looking for a cite to the above, look at Id. at pp. 802-803, 805. See also Golembeski v. Moorestown Township Public Schools, 2013 WL 1007672, *4 (D. N.J. March 13, 2013).

All this raises two questions. First, if you have a person already working for you and that person is discriminated against on the basis of a disability, is it a defense to say that the position was phased out and therefore, the plaintiff cannot meet a prima facie case because the company did not continue to seek applicants? Second, let’s say that the position was continued to be advertised and that a person was hired to replace the discriminated individual, must the discriminated individual, in order to make out a prima facie case, show that the person hired was outside of the protected class?

Golembeski addresses both issues. Before proceeding further, this case is in unpublished case. Thus, anybody seeking to rely on this should be aware that the various jurisdictions have restrictions on how you can cite unpublished decisions. Thus, while this decision is very useful for guidance, how persuasive it is going to be in a particular court is going to depend upon the court’s jurisdiction rules and upon whether any published authority is out there that might be better than this particular case for the situation at hand.

In Golumbeski, the plaintiff was hired by the defendant in 2004 to be an auditorily impaired paraprofessional whose job was to assist the classroom teacher and work one-on-one with deaf and hard of hearing children requiring more individualized attention than they would otherwise receive. She was expected to help assist the classroom teacher and work one-on-one with deaf and hard of hearing children requiring more individualized attention. When she was hired, the plaintiff alleged that she was told that she would be working primarily with one student and that is what she did. While the plaintiff’s contract stated that her employment terminated at the end of each year, the plaintiff alleged that she did not have to reapply for a position after the 2004-2005 school year and after the 2005-2006 school year. At the end of 2005/2006 school year, the school district informed the plaintiff that she would be transferred to a high school to continue working with the student that she has been working with. However, upon transferring to the high school, the school district informed her that the student she had been working with was going to work with an interpreter instead of a one-on-one aide. She then began working at the high school with a new student who had Downs Syndrome and was also deaf, but after one month, realized that she was not equipped to handle the particular needs of the student and requested a new assignment. She was then transferred to another school, where she worked as an aide and then subsequently transferred to yet another situation where she remained as an aide in the classroom environment until the end of the 2006/2007 school year. At some point during that year, the school district informed the plaintiff that there was going to be a change in the way the deaf classroom works. They informed her that each classroom would have two aids, one of which would be deaf and the other hearing. Since plaintiff worked in a room with another deaf aide, she was informed that the position would not be available for the next school year and she would have to reapply for the 2007/2008 school year. Plaintiff was able to show that at least one other classroom continued to have two non-deaf aides due to the classroom teacher’s preference for hearing assistant despite the change in the paradigm. During the summer 2007, she was told that there were not going to be any positions available for her. Since her benefits were tied to a job at the school district, she decided to apply to any available position in order to remain employed with the school district. She did find and accepted a position as a one-on-one aide with a student with cerebral palsy where she received less pay than she was making prior. She also applied for other positions and then in the process discovered that the school district was continuing to advertise for two openings for the position she originally had, auditorily impaired paraprofessional, and she inquired of her former supervisor why she had not been given one of those assignments if they were available. The former supervisor responded that one was at a school in which she had asked for a transfer and the other was for the classroom she had previously worked in and reiterated the paradigm they were using, saying that the setting was not a good fit for her. She then was placed in several positions for which she wasn’t qualified. After inquiring as to why she was not being given an interview for an auditorily impaired paraprofessional, a job where she had worked successfully in for years, she was granted an interview but did not ultimately get hired. Instead, they hired another person who was hearing impaired. The person hired was also deaf but used a cochlear implant to function like a hearing person. Whereas, the plaintiff was culturally deaf and used ASL to communicate.

As a result of all this, the plaintiff brought suit alleging violations of the ADA for failing to renew her contract, failing to accommodate her in various positions and, failing to hire her to do the type of job she was originally qualified for.

You can find all these facts at Golembeski at **1-2.

With respect to the first issue, the defendant argued that since they did not seek another person to perform the same work that the plaintiff had been doing during the 2006/2007 school year as a result of the position being eliminated, the plaintiff could not meet her prima facie case. The court wasn’t buying this for a couple of different reasons. First, the school district internal emails were inconsistent in terms of how it referred to the position thereby creating an issue of fact as to whether the position had been eliminated at all. Id. at *4.

Second, to the court, the whole argument was a bit of a red herring because in order to make out a prima facie case under the ADA, all the plaintiff has to show is that she: 1) had a disability within the meaning of the statute; 2) was a qualified individual; and 3) had suffered an adverse employment action because of that disability. Id. at *4. The court said that the facts were such that the plaintiff had satisfied a prima facie case. While McDonnell Douglas does refer to continuing applications, the court noted that it was following McDonnell Douglas with respect to the burdens but not because the claim was identical. That is, they specifically noted that McDonnell Douglas explicitly said what is a prima facie case cannot be the same standard with respect to every different factual situation. Id. at *4 at n.5.

Finally, the court said that while it was going through the McDonnell Douglas paradigm anyway, it wasn’t sure that it had to since the defendant admitted that the plaintiff was not rehired because of her disability as well as, to an extent to be determined, her incompatibility with the new model for the program for deaf education (arguably, direct evidence). See Id. at *4 n.2.

With respect to her failure to hire claim for the 2008/2009 school year, the defendant argued that since they had hired a deaf person, there was no way the plaintiff could meet her prima facie case. That is, the argument was that the plaintiff was not able to show that they were ultimately replaced by a person sufficiently outside her protected class to create an inference of discrimination. The court wasn’t buying this either for three reasons. First, the plaintiff noted that the were critical distinction between a person who is deaf with a cochlear implant and a person like the plaintiff who is culturally deaf, and relies on ASL, and therefore a resolution was particularly inappropriate on a motion for summary judgment. See Id. at **5-6.

Second, the court noted that the Third Circuit specifically rejected the requirement that a person in a title VII situation must be ultimately replaced by a person sufficiently outside the protected class because such a requirement was particularly inappropriate when the classification of such individuals was categorical and not continuous. Id. at *6 n.6.

Third, such a requirement was not mandatory in the Third Circuit to begin with. That is, to establish a prima facie case under the ADA for failure to hire, all the plaintiff has to show was that: 1) she belonged to the protected category (person with a disability); 2) she applied for and was otherwise qualified for the job for which the employer was seeking applicants; 3) despite her qualification, she was rejected; and 4) after her rejection, the position remained open and the employer continue to seek applicants. Id. at *5. Filling the position with someone from outside the protected class was not a mandatory thing to show but rather could be shown in the alternative, if the person could not show that after her rejection, the position remained open and the employer continued to seek applicants. Id.

The Third Circuit approach of specifically rejecting a requirement that person needs to be ultimately replaced by a person sufficiently outside the protected class in order to make a prima facie case, has very good policy reasons to support it, particularly with respect to ADA matters. First, the ADA has been amended so that many more people are included within the definition of a person with a disability. Second, and more importantly, no two disabilities, even the same ones, are handled the same by different people. For example, a person who is culturally deaf (born deaf, state schools for the deaf, and ASL) may have the same hearing loss as a person with a cochlear implant, but the way they go about their business is going to be dramatically different. Also, you may have people of the same hearing loss but function entirely differently. In both of these situations, I am referring to people of the same type of disability and even here, it would be very difficult to show true comparability. Let alone, what would happen, if you try to compare different kinds of disabilities with each other.

For the reasons discussed here, I have never really understood how some opinions, and they are not many, try and look for comparatives with respect to ADA matters. Since disabilities are very different, both across disabilities and even within the same disabilities, the full on McDonnell Douglas paradigm fails. Furthermore, this case makes clear that such a paradigm isn’t required in the first place. What this case does, it returns the inquiry to whether the person with a disability of otherwise qualified and whether they were in fact discriminated against rather than focusing on extraneous matters which don’t deal with the question of whether the discrimination of an otherwise qualified individual with a disability took place in the first place. In short, a company, in light of this case, has two choices. The preventive approach would be to narrowly focus on what is a prima facie case as laid out in this decision. That said, a company would be perfectly within its rights to continue with advocacy with respect to positions being eliminated and with respect to hiring people outside of protected classes as being necessary elements of a prima facie case, but such litigation would likely be very costly and complicated, particularly when it comes to comparing disabilities across the spectrum and even within the same disabilities.