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Doing the right thing part of the time is not enough

published in Oklahoma Employment Law Letter | February 1, 2012

By Tony Puckett

The Tenth U.S. Circuit Court of Appeals (which includes Oklahoma) recently ruled that ending an accommodation for a disabled employee because of concerns that other employees might quit because of the accommodation is disability discrimination under the Americans with Disabilities Act (ADA).

Facts

An oil field directional driller was discharged from his job with Pathfinder Energy Services after the employer had allowed him to work part-time for two months as an accommodation for his disability. Previously, the employee had worked 24-hour shifts on 10- to 12-day assignments. When his diabetes and hepatitis C left him increasingly fatigued and weak, the employer accommodated his need for more rest (to cope with his health problems) by cutting his workload to one assignment per month instead of two. The employee was able to continue to work 24-hour shifts by working one assignment per month.

In December 2006, as the employee was finishing a 10-day assignment, his manager asked him to immediately work another 10-day assignment. The employee agreed, but on his way to the job site, he called the manager and said he wasn’t feeling well and needed time off to rest before starting another assignment. An argument ensued, and the employee ended up agreeing to work the assignment because he didn’t want to let his co-workers down. He used an expletive in telling his manager he would take the assignment. The manager brought up the fact that the employee was off more days than any other employee, to which the employee replied that the manager knew he had been sick.

When the employee arrived at the work site, he went to the sleeping quarters and took a lower bunk. A co-worker complained that the employee moved his belongings from the lower bunk. The co-worker was in a lower job classification, which meant the directional driller employee had the right to choose his bunk first. The employee didn’t care which bunk he had and moved, but not before cursing about the issue of who slept where. The employee didn’t curse at his co-worker.

The next day, the employee’s health worsened, and he went home sick. A few days later, the manager met with the employee about the bunk incident. The manager had been told that the employee had cursed at his co-worker. The employee responded by telling his version of the story, explaining that he cursed only about the event itself. The manager responded by informing him that he was being discharged for his inability to get along with others. The manager explained at his deposition that he discharged the employee over two instances: (1) his altercation with the coworker and (2) the expletive he used when agreeing to take the second assignment.

In the termination conversation, the employee stated he was “grouchy” because his diabetes was out of control at the time. The manager stated that other drillers were working 25 to 26 days per month and he was concerned they would start quitting if he didn’t discharge the employee, which was a slightly different explanation for the termination. The manager also told the employee that he was no longer able to work 24-hour shifts, although he had no medical reports or other information to support his statement. Importantly, the manager denied the employee’s request for additional time off to address his health issues. By contrast, the employee testified that he could have continued to work if he had been given time off to rest and recover between job assignments.

Legal analysis

The Tenth Circuit noted that under the ADA, part-time work is a reasonable accommodation provided the employee demonstrates he can perform the essential functions of his position while working part-time. The court stated that it could be difficult for an employee to prove that for some positions “because regular attendance may fairly be characterized as an essential function of some jobs.” One example cited by the court is that of a high-school teacher, for which regular attendance is necessary.

In this case, the employer didn’t contend that the employee’s position required full-time attendance or that his need for rest rendered him incapable of meeting reasonable job expectations. Rather, it asserted he wasn’t qualified to work 24-hour shifts when he was fired. The court rejected that argument, noting that he had been working 24-hour shifts up to the date of his discharge. It added that he could perform his work assignments with the accommodation of rest and recovery, which the employer had been providing for approximately two months.

The Tenth Circuit also addressed whether the employee produced enough evidence for a jury to conclude that he was discharged because of his disability. The court concluded that he had, citing his testimony about the manager’s statements — specifically, his reference to other drillers working more days, his comment that other drillers would quit if the employee wasn’t discharged, and incorrectly stating the employee couldn’t work 24-hour shifts. The court found those statements could lead a reasonable jury to conclude that the employee was discharged because of his disability and that the employer no longer wanted to accommodate him.

In discussing the employee’s evidence, the court emphasized that he wasn’t required to produce direct evidence of discrimination — that is, a comment by a supervisor that directly showed disability bias (e.g., “I don’t like people who can’t work full-time and need special help!”). The court noted that an employee may present circumstantial evidence of discrimination such as evidence that the employer’s stated reason for discharge was false or that the employer acted contrary to a written company policy in discharging the employee. In this case, the court found that the employee produced sufficient circumstantial evidence based on his deposition testimony of the manager’s statements in the discharge meeting.

The court added that the employer’s stated reason for discharge — the two instances in which the employed responded negatively by using profanity about work issues — is a legitimate nondiscriminatory reason for discharge. However, the court commented that in oil field work, where long hours and strenuous jobs are the norm, occasional “spats” are not uncommon. Carter v. Pathfinder Energy Services, Inc. (Nov. 2011).

Lesson learned

This case offers several lessons that employers should heed before making a discharge decision. First, consider which accommodations are being provided to an employee and whether he can still work within those accommodations. Second, rely on medical evidence and not personal opinion when making statements about whether an employee is physically able to perform the functions of a position. Third, make sure there is an investigation of the facts and that the manager’s statements about the facts conform to what was found in the investigation.