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Evidence of Pretext Supports Employee’s FMLA and ADA Claims

By Scott R. Eldridge  2/24/2014

The 10th U.S. Circuit Court of Appeals revived a disabled worker’s retaliation and discrimination claims after concluding that a reasonable jury could find that his former employer’s stated reasons for terminating him were a pretext. Steven Smothers, who worked for Solvay Chemical Inc. for 18 years as a surface maintenance mechanic, was fired for a first-time safety violation and a dispute with a co-worker. He sued, alleging, among other things, that the company’s true motivations were retaliation for his having taken medical leave (in violation of the Family and Medical Leave Act (FMLA)) and disability discrimination (in violation of the Americans with Disabilities Act (ADA)). The trial court granted summary judgment for Solvay, but the 10th Circuit reversed.

Smothers had injured his neck years ago and developed a degenerative disc disease in his spine, both of which caused serious pain and migraine headaches and required surgery. Consequently, he missed a lot of work.

He sought and was granted intermittent FMLA leave to cover his treatments and absences due to pain. Even though Smothers had a reputation as an excellent mechanic who always did “top-notch work,” his manager and co-workers complained about his FMLA-protected absences.

In August 2008, Smothers and his crew members were doing a routine chemical wash of equipment using hydrochloric acid when a problem with the acid flow arose because of a rupture in the line that transferred the acid into the plant. Smothers’ co-workers told him that they were going to get a “line permit” to lock out the pump, per company policy, before disconnecting the line. When Smothers approached the acid tank he noticed a damaged component that had caused the problem. As he attempted to remove it a colleague suggested he wait until receiving the proper line permit. Smothers disagreed that this was required, and the two argued. Nonetheless, Smothers removed the broken component to repair it. The colleague then reported his conduct as a violation of the company’s safety rules. After an investigation, Solvay discharged Smothers.

The 10th Circuit explained that Smothers’ FMLA and ADA claims turned on whether Solvay’s proffered reasons for discharging him were a pretext. According to the court, a jury could find that the company treated Smothers differently from similarly situated employees who committed comparable safety violations. Specifically, two foremen had previously violated the lockout policy deliberately, and others had violated Solvay’s safety policies. Yet, in those instances, many of the same decision-makers chose not to terminate the violators. Rejecting Solvay’s argument that those other employees were not “similarly situated” to Smothers because not all of the same decision-makers were involved, the court explained that “requiring absolute congruence would too easily enable employers to evade liability.” It thus rejected the trial court’s “insisting that the composition of the decision-maker groups be precisely the same in every relevant disciplinary decision.”

The court also concluded that the company’s investigation into Smothers’ quarrel with his co-worker was inadequate because the decision-makers acknowledged that their beliefs were based almost entirely on the co-worker’s version of events. In fact, none of the decision-makers interviewed Smothers about the incident, despite their testifying that the argument “weighed heavily in the group’s decision to fire Mr. Smothers.” According to the court, by not giving the plaintiff an opportunity to share with them his response to the co-worker’s version of events, the decision-makers “deliberately prevented Mr. Smothers from defending his actions.” And, as a result, “a reasonable jury could find that Solvay’s investigation into the quarrel … was not fair or adequate.”

Further supporting a finding of pretext, according to the 10th Circuit, Solvay’s managers previously took negative action against Smothers because of his FMLA-protected absences. For example, a superior pressured Smothers to change shifts (with a corresponding reduction in pay), though a larger staff could have more easily absorbed his absences without the company’s incurring overtime costs. And Smothers received negative performance evaluations because of absenteeism related to his FMLA leave. Moreover, the HR department had advised Smothers’ superiors that their conduct and statements in that regard would be unlawful under the FMLA. According to the court, “[t]his background evidence lends further support to the inference that Solvay was frustrated with Mr. Smothers’ use of FMLA leave and seized upon his safety violation and quarrel … as a pretext to fire him and avoid the inconvenience cause by his FMLA-protected absences.”

Finally, the 10th Circuit rejected the trial court’s conclusion that the plaintiff did not have a disability under the ADA. It explained that a reasonable juror could find that his neck condition substantially limited his ability to sleep. The medical evidence, according to the court, showed that numerous medical treatments failed to resolve his condition or eliminate his severe pain, and he consistently complained of an inability to sleep, waking between four and six times each night because of pain. It noted: “Mr. Smothers’ documented medical history shows his sleeping issues have been virtually intractable and limiting for years despite numerous treatment efforts. A jury could therefore reasonably conclude that his impairment is sufficiently permanent or long term to qualify as a disability.”

Smothers v. Solvay Chemicals Inc., 10th Cir., No. 12-8013 (Jan. 21, 2014).

Professional Pointer: Thorough and fair investigations into possible work-rule violations, along with consistent application of discipline under similar circumstances, remain hallmarks of defensible decisions to discharge employees.

Scott R. Eldridge is a principal attorney at the law firm Miller, Canfield, Paddock and Stone, P.L.C. in Lansing, Mich. 

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