Curley v. City of North Las Vegas, No. 12-16228 (December 2, 2014): The Ninth Circuit Court of Appeals recently affirmed a judgment against a worker who claimed that he was fired because of his hearing impairment in violation of the Americans with Disabilities Act (ADA). The court found that the employee could not show that the reasons for his discharge—including intimidation of his coworkers by threats of violence and conducting personal business during work hours—were pretextual. The court also rejected the worker’s argument that his employer’s tolerance of his “bad behavior” for years before he made an accommodation request confirmed that his discharge was retaliatory.
During his employment with the City of North Las Vegas, Michael Curley received numerous oral and written reprimands. In 2008, Curley filed a discrimination charge with the U.S. Equal Employment Opportunity Commission (EEOC) claiming that the city denied his request for an accommodation for his hearing impairment. He also alleged that the city retaliated against him for previously filing a discrimination and retaliation charge.
In 2009, Curley made a second accommodation request for his hearing impairment. He asked to be relieved from duties requiring him to be near one of the trucks he operated. The city rejected his request because those trucks were essential to his position and recommended that Curley use hearing protection. Shortly thereafter, Curley was involved in a heated verbal exchange with a coworker. As a result, the city placed Curley on administrative leave and initiated an investigation into his behavior.
The investigation revealed that Curly had repeatedly threatened his coworkers and their families with physical violence. In addition, multiple coworkers claimed that Curley conducted personal business while at work, and it was revealed that Curley was operating an ADA consulting business during work hours. At the conclusion of the investigation, the city fired Curley for (1) failing to perform duties due to excessive personal phone calls, (2) intimidating his coworkers by threats of violence, (3) conducting and soliciting personal business on work time, and (4) making disparaging remarks about his supervisors and the city.
Curley filed suit under the ADA alleging that the city unlawfully terminated his employment because of his hearing impairment and retaliated against him for filing an EEOC compliant and requesting an accommodation. A federal trial judge granted the city’s motion for summary judgment, and Curley appealed.
The Ninth Circuit first found that Curley failed to offer any basis for believing that any of the four reasons that the city had provided for his discharge were a pretext for discrimination. Curley argued that the results of a fit-for-duty evaluation, which showed that he was fit for duty and not a danger to himself or others, called into doubt the city’s credibility regarding its reasons for firing him. The Ninth Circuit rejected this argument, finding that the city fired Curley “because of the threats he had made in the past, not the danger of future violence.” Moreover, even if the evaluation had undermined the city’s credibility with regard to its concerns about Curley’s intimidating behavior, it did not refute the city’s three other reasons for his termination.
With regard to his retaliation claim, Curley argued that because the city tolerated his behavior in the past, his discharge must have been retaliation for the fact that he filed an EEOC claim and made an accommodation request. The Ninth Circuit rejected this argument as well, finding that “Curley wrongly assumes that the [c]ity was aware of the severity and scope of his misconduct during the years in which it refrained from terminating him.” According to the court, the city’s failure to fire Curley sooner is not evidence that its reasons for firing him were pretextual.
Finally, the court rejected Curley’s claim that the close temporal proximity between his discharge and his protected activity is evidence of pretext. According to the court, because of the information revealed about Curley during the city’s investigation, the timing “does nothing to refute the [c]ity’s legitimate explanations for the adverse employment action.” Thus, the Ninth Circuit affirmed the trial court’s order in the city’s favor.
Practical Impact
According to a shareholder in the San Francisco office of Ogletree Deakins, “Although the Curley case does not break new legal ground, it is one of the few cases to clearly articulate several long-standing doctrines. For instance, it is well settled that a close ‘temporal proximity’ between a protected activity and an adverse employment action raises a rebuttable presumption of a causal relationship between the two. The court in Curley, however, made it clear that a significant intervening event, such as an employee’s currently threatening conduct, can rebut that presumption.”
Wright continued, “Next, to withstand summary judgment of discrimination or retaliation claims, an employee must prove that the reasons given for his or her discharge were false and that the termination was, in fact, motivated by discriminatory or retaliatory animus. The court in Curley holds that where there are multiple valid reasons for the termination, the employee cannot carry his or her burden of proof by establishing that only one of them is false. The employee must prove that all of the articulated reasons are pretextual. A key takeaway from the Curley decision is that the employer should articulate all of the genuine and legitimate reasons for the termination at the time the employee is fired.”
