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Timing of Accommodation Request Crucial in ADA Case


Timing can often be a critical issue in employment discrimination cases. Why? Because intent is important and if you cannot establish knowledge of protected activity or inclusion in a protected category, you may not be able to establish that intent. In other words, before you can show your employer terminated you for requesting an accommodation for your disability, you must establish that your employer knew about your request before the decision to terminate you was made. That was one of the primary issues in a recent ADA retaliation case in the Tenth Circuit.

Was the decision to terminate made before the request for accommodation?

In a recent Tenth Circuit case, Foster v. Mountain Coal Co., LLC, a mine worker was terminated allegedly after informing his employer of his need for neck surgery and a reasonable accommodation. The issue was raised as to whether the employer had already decided to terminate him before the request was made. Factually, the employee brought up his need for surgery during a disciplinary meeting. The purpose of the meeting was to discuss the employer’s belief that he had lied about his medical condition.

The employee, Foster, injured his neck while at work and was treated at the emergency room. When he submitted the return-to-work form from the ER physician, he was told the form was inadequate. The employee claims he obtained an additional form and left it on the HR clerk’s desk. However, the HR clerk denies receiving the form and suggested that the employee was lying about having one. The form that was ultimately received was obtained not from the ER physician but from his primary care doctor.

The disciplinary meeting

Foster was subsequently called into a meeting on April 3 where he was told he was being suspended for dishonesty. According to management, they believed he lied about the first note and the second note was insufficient as the primary care physician had not actually treated him for his neck. Foster alleges that he complained at the meeting that the company had been trying to “get rid” of him and that he was going to see the company-referred doctor on Friday to schedule surgery for his neck.

The decision to terminate Foster

According to management, they had already decided to terminate Foster for dishonesty on April 9, but had not been able to reach him to notify him of that decision. Instead, a letter dated April 11 was sent to Foster informing him of his termination. Foster received the letter on April 14. In the meantime, however, Foster had received the notation from his doctor regarding the required surgery on April 11. So, the question became whether the decision to terminate occurred before the request for accommodation for the surgery.

What constituted an adequate accommodation request?

In order for the employee to establish that he had engaged in protected activity (i.e., requesting an accommodation) he must first show he made an adequate request. It was the employee’s position in this case that his statements at the April 3 meeting that he would be needing surgery were sufficient to constitute a request for accommodation. The trial court ruled that this statement was inadequate. However, the Tenth Circuit disagreed. The court instead held that the employee’s comments at the April 3 meeting sufficient to put the employer on notice that he was requesting an accommodation for his neck injury.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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