Before getting started on the blog entry of the day, I did a webinar the other day for the Georgia Lawyers for the Arts on Internet accessibility and on effective communications. We also talked about other matters as well. It was the first time I did a webinar using the zoom platform. I found it worked well so long as I had the ability to dial in and use my Bluetooth so the sound could go directly to my hearing aids. One of the questions that came up was this: employer of less than 15 employees; in a state with no disability discrimination laws; and took the funds from the government to keep their business afloat. Does that company despite having less than 15 employees now have to worry about disability discrimination in employment? The answer I gave was yes because 29 U.S.C. §794, §504 of the Rehabilitation Act, applies to any entity receiving federal financial assistance. If same facts but state disability discrimination laws exist, then the company has to worry about §504 and possibly state disability discrimination laws as well.
I have promised a couple of times and have never followed up on it to blog on the case of Schmitz v. Alamance Burlington Board of Education a decision from February out of the Middle District of North Carolina. It does a great job of discussing associational discrimination. It also sets up a potential circuit court split with respect to the paradigm for evaluating these claims. As usual, the blog entry is divided into categories and they are: Key facts; court’s reasoning association discrimination generally; court’s reasoning adverse action/constructive discharge; court’s reasoning qualified; court’s reasoning reasonable inference of unlawful discrimination; court’s reasoning retaliation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Key Facts (Taken Directly from Opinion):
Theresa Schmitz (“Plaintiff”) is a resident of Wake County, North Carolina. (Compl. (Doc. 5) ¶ 3.) The Alamance-Burlington Board of Education (“Defendant”) is a corporate body solely based and operating in Alamance County, North Carolina. (Id. ¶ 4.)
Defendant hired Plaintiff in late October 2016 to teach fourth grade at an elementary school in Snow Camp, North Carolina. (Id. ¶ 6.) Plaintiff alleges that she performed satisfactorily throughout her first months, receiving positive feedback. (Id. ¶ 7.) In November 2016, her son was diagnosed with a brain tumor and required emergency surgery. (Id. ¶ 8.) Plaintiff alleges she returned to work on November 29, 2016, after her son’s surgery on November 23. (Id.) Plaintiff’s son was diagnosed with neurofibromatosis Type 1 (“NF1”), a disease also known as von Recklinghausen’s Disease. (Id. ¶ 9.) NF1 is a rare genetic disorder that causes tumors and growths in certain parts of the body; it negatively affected Plaintiff’s son’s ability to see, think, and learn. (Id.) Plaintiff’s son was unable to walk or care for himself following surgery. (Id.) Plaintiff’s son requires regular screenings and chemotherapy as a result of the disease. (Id.)
After returning to work on November 29, Plaintiff asked her Principal, Mark Gould, for permission to leave work at 2:30 p.m. each day to care for her son. (Id. ¶ 11.) Though classes ended at 2:30 p.m., teachers were expected to stay until 3:15 p.m. each day. (Id.) Principal Gould allowed Plaintiff to leave at 2:30 p.m. for one week, from November 29 until December 5. (Id.)
On or about December 5, Plaintiff took her son to the doctor to have his stitches removed; at that appointment, the doctor informed Plaintiff that her son would not be able to return to school for several weeks. (Id. ¶ 12.) Plaintiff emailed Principal Gould following that meeting, explaining the situation and asking for permission to leave at 2:30 p.m. for another week. (Id. ¶ 13.) Principal Gould responded that he could not talk about it at that moment because he was busy, but that he would discuss it with Plaintiff the next day. (Id.) Plaintiff never heard from Principal Gould, but she still left 2:30 p.m. the next day, December 6. (Id. ¶ 14.) Later that day, Principal Gould emailed Plaintiff to ask why she had not been at bus duty at 2:30 p.m. that day. (Id.) “Plaintiff replied that she had explained her situation with her son and thought it was okay to leave at 2:30 p.m. When she received no response back, she became very concerned.” (Id.) Plaintiff told Principal Gould that she would not be at work on December 7. (Id.)
On December 7, Plaintiff contacted Defendant’s human resources (“HR”) department to explain the situation with her son and to express concern that Principal Gould was “bullying her and retaliating against her for caring for her disabled son.” (Id. ¶ 15.) The HR department responded that day and told Plaintiff she was not permitted to leave at 2:30 p.m., but instead would have to take leave in half-day increments. (Id. ¶ 16.) Plaintiff alleges she asked HR why she could not work until 2:30 and have her pay prorated for the final forty-five minutes of the day, but she received no response. (Id.)
Plaintiff alleges that she was treated differently in this regard, because “other employees not associated with a disabled family member were regularly permitted to take sick leave in less-than-half-day increments on temporary bases.” (Id. ¶ 30.) Still, Plaintiff complied with HR’s instruction and took leave in half-day increments from December 5 until December 16. (Id. ¶ 16.) After December 16, 2016, Plaintiff alleges she did not request, nor did she take any other time off to care for her son. (Id.)
Plaintiff alleges that Principal Gould began a course of retaliation against her starting in mid-December 2016 and carrying into February 2017. (Id. ¶ 17.) This alleged retaliation, which Plaintiff characterizes as “nitpicking,” allegedly resulted in Plaintiff being held to a higher standard than other teachers. (Id. ¶ 18.) Plaintiff was placed on a performance improvement plan (“PIP”) on or about March 14, 2017. (Id. ¶ 20.) Plaintiff alleges this PIP entailed a lot of busy work, was based on misstated facts about her performance, and was another example of how she was held to a higher standard than other teachers. (Id. ¶¶ 20-21.)
Despite those positive developments, on May 12, 2017, Plaintiff was called into a meeting with Principal Gould and HR. (Id. ¶ 23.) Waiting for her in the meeting was a pre-drafted letter of resignation for her to sign, effective at the end of the school year. (Id.) Plaintiff was told to sign the letter, or she would be “put on a list she did not want to be on.” (Id.) Plaintiff alleges this list was “presumably a list of terminated employees or employees who were not eligible for hire” within North Carolina’s school systems. (Id.) Plaintiff was told she had to sign and “turn in” the letter. (Id.) Plaintiff does not expressly allege that she signed the letter, but she does allege that she was “forced to resign,” (id. ¶ 30), and that she was “constructively terminated,” (id. ¶ 24).
Plaintiff alleges she was retaliated against in the form of changes to her schedule and responsibilities, being placed on a PIP, being forced to resign, and other, smaller acts. (Id. ¶ 30.)
Plaintiff sued for association discrimination, retaliation, and violation of North Carolina law. The court winds up dismissing the North Carolina law claim but that does not concern us here.
Court’s Reasoning Association Discrimination Generally
- A prima facie case for an associational discrimination means showing: (1) she was associated with an individual with a disability as defined by the ADA and that her employer had knowledge of that association; (2) she suffered an adverse employment action; (3) at the time of such action, she was performing her job at a level that met her employer’s legitimate expectations; and (4) the adverse employment action occurred under circumstances raising a reasonable inference of unlawful discrimination.
- Pleadings are subject to Iqbal/Twombly. That said, plaintiff only has to plead facts that permit the court to reasonably infer that each element of the prima facie case is satisfied.
- McDonnell Douglas burden shifting applies to associational discrimination and retaliation claims.
- Association discrimination is, “because of.”
- The reason for the association provision being added to the ADA was to protect qualified individuals from adverse job actions based on unfounded stereotypes and assumptions arising from the employee’s relationship with particular persons with disabilities.
- With respect to employment, associational discrimination per 42 U.S.C. §12112(b)(4) means excluding or otherwise deny equal jobs or benefits to a qualified individual because of their association with a disabled person.
- In a footnote, the court says that plaintiffs alleging associational discrimination claims need not fit their claim into one of Judge Posner’s categories, which we discussed in this blog entry.
Court’s Reasoning Adverse Action/Constructive Discharge
- Adverse employment actions under the ADA use the same framework as title VII.
- Constructive discharge is viable where either the employee’s resignation was obtained by the employer’s misrepresentation or deception or where the employee’s resignation was forced by the employer’s duress or coercion.
- With respect to duress/coercion, it is a totality of circumstances test.
- When assessing the voluntariness of a resignation, factors to look at include: 1) whether the employee was given some alternative to resignation; 2) whether the employee understood the nature of the choice he or she was given; 3) whether the employee was given a reasonable time and when to choose to resign; and 4) whether the employee was permitted to select the effective date of resignation.
- If an employee can show that the employer knew that the reason for the threatened removal could not be substantiated, the threatened action by the employer is purely coercive.
- While plaintiff failed to plausibly allege that she did not have an option other than resignation, she did plausibly allege facts allowing the court to reasonably infer the employer lacked a good faith basis for threatening her with termination in the first place. For example, she successfully completed her performance improvement plan and had received a positive performance review from the principal.
- Plaintiff’s complaint permits a reasonable inference that the suggestion of a list that she would be put on if she did not resign was a threat of some undesirable consequences.
- While plaintiff was given sufficient time to consider her resignation, she did allege facts showing that her resignation date was predetermined, which is a strong indicator of the lack of voluntariness.
- The court was persuaded by the contrast between plaintiff’s allegations about her successful performance at the end of the school year and the allegedly abrupt way she was forced to resign. So, the totality of circumstances test combined with the facts alleged are sufficient to get by a motion to dismiss.
Court’s Reasoning Qualified
- To be protected under the ADA, a person with a disability must also be qualified.
- Plaintiff brought forward enough facts showing she was meeting defendant’s expectations. In particular: 1) plaintiff was a teacher and did miss class time to care for her son, but those instances allegedly ceased in December 2016, and it appeared the absences were approved leave; 2) between the time of absenteeism and when she was shown her pre-drafted resignation, plaintiff alleges she was performing satisfactorily. Those allegations are supported by the performance report written by the principal at some point during April 2017, which did not indicate any deficiencies nor did it indicate that she was not qualified to do the job.
Court’s Reasoning Reasonable Inference of Unlawful Discrimination
- Plaintiff has to show that it is more likely than not that the employer took the adverse action because of her association with an individual with a disability.
- “Because of,” language associated with association discrimination and retaliation in the statute means causation is, “but for.”
- Where a plaintiff is performing her job satisfactorily and her only issues with her employer revolve around her association with the person with a disability, then that raises an inference of discriminatory motivation.
- Plaintiff alleged discriminatory intent sufficient to get by a motion to dismiss in numerous ways: 1) she was performing her job well in October and November of 2016; 2) defendant’s only alleged displeasure with the plaintiff involved her time off to care for her son with a disability in late 2016 early 2017; 3) after December 2016, defendant allegedly began to treat plaintiff differently; and 4) after those incidents involving her son with a disability, plaintiff was again performing her job well. Accordingly, plaintiff alleged sufficient facts to show that her association with her son was more likely than not the motivating factor for defendant’s actions.
- Even though there was some period of time between the defendant’s notice of plaintiff’s association with her son with a disability and her termination, a period of six months, the totality of the circumstances is such that there still exist the necessary minimal inference of discriminatory intent (the court noted that the Seventh Circuit has found five months to not be too long of a gap).
- A period of time that is otherwise long does not negate causation if the adverse action comes at the first opportunity to retaliate.
- If a period of time between notice about an association with the person with the disability and the discriminatory act is filled with other acts illustrating discriminatory animus, then causation can still be established. Particularly noteworthy, is that the defendant knew plaintiff was associating with a family member with a persistent condition requiring more care and that the defendant was also aware of the chronic nature of plaintiff’s son’s disease. Plaintiff also alleged evidence of discriminatory intent between the time defendant became aware of plaintiff’s association and her forced resignation. Those actions included: 1) holding plaintiff to a higher standard than other teachers; 2) reprimanding her for allegedly routine matters; and 3) placing her on a performance improvement plan starting in mid-March.
- While the ADA does not require an employer to provide a reasonable accommodation to the nondisabled associate of a person with disability, an employer’s reaction to such a request for accommodation can support an inference that a subsequent adverse employment action was motivated by associational discrimination.
Court’s Reasoning Retaliation
- Proving up a retaliation claim means showing: 1) plaintiff engaged in protected conduct; 2) plaintiff suffered an adverse action; and 3) a causal link exists between the protected conduct and the adverse action.
- Plaintiff need not show that the conduct being opposed was actually an ADA violation. Instead, plaintiff must show a good faith belief the conduct violated the ADA. That good faith belief has to be objectively reasonable.
- A reasonable and good faith belief is only required for opposition activity. If a person is involved in the EEOC process and retaliation occurs, a reasonable and good faith belief showing is not necessary.
- The law is crystal clear that a person alleging associational discrimination is not entitled to reasonable accommodations. Accordingly, it is not reasonable to assume that a plaintiff had a good faith belief that such a request was protected under the ADA. Accordingly, dismissal of the retaliation claim is warranted.
- Iqbal/Twombly means giving the defendant enough facts so that it is clear as to what is being alleged and what the claims are. Depending upon the jurisdiction, judges may allow a degree of notice pleadings, but it is very specific to the individual judge. So, on the plaintiff side, more facts are better than less.
- It’s interesting that even though causation for retaliation and associational discrimination claims is “but for,” McDonnell Douglas is still in play.
- The court’s footnote talking about how associational discrimination claim do not have to fit into one of the boxes we discussed in this blog entry sets up a potential circuit court split.
- Duress and coercion when it comes to figuring out constructive discharge is a totality of the circumstances test.
- Just because there is a length of time between notice about an individual’s association with a person with a disability and the ultimate discriminatory act, that is not the end of the matter where other acts illustrating discriminatory intent exists.
- Objective reasonableness when it comes to retaliation does mean not being ignorant of the law. In other words, it makes perfect sense to me that a person would think it is perfectly reasonable and within the ADA to request accommodations because they are associating with a person with disability. However, the law is quite clear that is not the situation. Accordingly, regardless of a plaintiff believing that, that belief does not hold up for retaliation claim. All this said, many courts are holding a failure to accommodate a person’s request for a reasonable accommodation to deal with their association with the person with a disability can be evidence of discriminatory intent. So, in this situation, the interactive process or lack thereof is critical.
- “Disabled,” v. “person with a disability.” The medical community, many courts, and some disability rights activists use the term, “disabled.” However, a significant group of people in the disability rights arena, and it does not depend upon age, prefer people first language, i.e. “person with a disability.” Since it is an individual preference, when speaking generally always start with people first language and then switch over to identity first, “disabled,” if the person with a disability prefers it that way.