Did An Employer Inflate Its Worker’s Performance Deficiencies as a Pretext for Disability Bias? Mass. Court Says Maybe

On November 4, 2013, in Akerson v. Pritzker, No. 12-10240-PBS, the U.S. District Court for the District of Massachusetts rejected the race discrimination and Equal Pay Act claims brought by a former employee of the U.S. Census Bureau’s, but allowed her Rehabilitation Act claims to proceed to trial. The plaintiff in the case had been employed as a “partnership specialist” for the U.S. Census Bureau where she educated organizations about the 2010 census and encouraged them to enter into partnership agreements with the Census Bureau. Applicants for the position could apply for one or more of four salary grade levels: GS-7, GS-9, GS-11, and GS-12. The plaintiff applied for the position at the GS-9 pay grade and was paid accordingly. Her male colleague applied for the position at the GS-11 pay grade and was paid at a higher level although both levels involved substantially the same job responsibilities.

The plaintiff suffered from interstitial cystitis, an inflammatory bladder disease which, during flare- ups, caused her to use the restroom frequently—as often as every twenty minutes. Although her supervisors were not aware of her condition until she disclosed it to one of them nine months into her employment, she claimed that one of her supervisors would intentionally call her on the phone when she was in the restroom, and when she did not answer the phone he would send a co-worker in the restroom after her, and would then “shake his head disapprovingly” when she returned.

The plaintiff received an “acceptable” performance review for her first and only performance evaluation. The review did not mention the plaintiff’s bathroom breaks. A month later, the U.S. Census Bureau instituted an office-wide policy requiring that all partnership specialists submit a minimum of 10 signed partnership agreements per week. The plaintiff failed to meet that requirement during the next three months, and her supervisors counseled her for her failure to do so and for her work performance generally.

Approximately nine months into her employment with the Bureau, the plaintiff’s bladder condition worsened and she took a two-week leave of absence from her job. Upon her return from leave, she met with one of her supervisors and an HR representative to disclose her bladder condition. During the meeting, the supervisor asked the plaintiff how long she would need to be in the bathroom on any given visit and also asked to let her know about her whereabouts whenever she was away from her desk for reasons other than using the restroom. In addition, the plaintiff’s desk was moved to a different location and her duties were reassigned. Four days after the meeting, the Bureau terminated the plaintiff’s employment, ostensibly due to her poor work performance.

The plaintiff filed a lawsuit in which she alleged that the Census Bureau had discriminated against her because of her race (Caucasian) and disability (interstitial cystitis), had retaliated against her for seeking an accommodation of her disability, and had paid her less than a similarly qualified male employee in violation of the Equal Pay Act. The district court held that the plaintiff’s documented performance issues and lack of evidence of racial discriminatory animus doomed her race discrimination claims. The court also held that the Census Bureau’s practice of paying employees based on the job grade for which he or she applies constituted “a legitimate factor independent of sex” and thus was sufficient to defeat the plaintiff’s Equal Pay Act claim.

The court refused to grant summary judgment to the Census Bureau on the plaintiff’s disability discrimination and retaliation claims, however, for three reasons. First, the court found that the plaintiff’s bladder condition impaired her ability to work and substantially limited her in her ability to work “as compared to most people in the general population.” Based on these findings, the court held that the plaintiff’s condition qualified as a “disability” under the 2008 Americans with Disabilities Act Amendments Act because the condition.

Second, the court considered the four-day interval between the plaintiff’s disclosure of her disability and the termination of her employment and the Bureau’s changes to her employment conditions (e.g., moving her desk, reassigning her duties, and asking the plaintiff to inform her supervisor of her whereabouts whenever she was away from her desk for reasons other than using the restroom). The court found that these allegations were probative of discriminatory animus.

Third, the court held that although there was undisputed evidence of the plaintiff’s performance deficiencies, a reasonable jury could conclude that upon learning of her request for accommodation and her disability, the Bureau had artificially inflated the severity of those deficiencies as a pretext for firing her. Specifically, the court noted that the Bureau’s claim that its decision to discharge the plaintiff predated her request for accommodation was suspiciously unsupported by any documentary evidence, and thus could not support an award of summary judgment in the Bureau’s favor on the plaintiff’s disability discrimination and retaliation claims.

Key Takeaways

The district court’s decision in the case underscores the importance of clear contemporaneous documentation of all adverse employment decisions including documentation of the recommendations that may lead to discipline or termination of employment. Oral testimony, alone, from a supervisor and/or a decision-maker concerning an adverse employment decision may be insufficient to prove that the employer had a legitimate, non-discriminatory reason for its decision, or that the reason was not a pretext for discrimination or retaliation.