Employee’s Performance Issues Are Legitimate Reason for Termination
The Seventh U.S. Circuit Court of Appeals (which includes Wisconsin) recently affirmed a district court’s dismissal of a lawsuit against an employer that terminated an employee with a disability for performance reasons. The case was decided under federal law. Employers in Wisconsin should remember that under our state disability discrimination law, an employee need not be able to perform all the essential functions of a particular position, so a Wisconsin administrative law judge might have reached a different conclusion based on the same facts.
The case also illustrates the difficulties you might have when accommodating individuals with disabilities. Each employee may face different challenges and have different strengths and weaknesses. Let’s take a look at what the employer in this case did right.
Robert Dickerson suffers from a mental disability. He has a WAIS-III Full Scale IQ of 67, took special education classes in high school, and has difficulty acquiring, retaining, and processing information. In 1999, he secured a position as a part-time janitor for Belleville Area Community College District 522. With three exceptions, his part-time tenure proceeded without recorded incident.
In December 2005, Dickerson filed a union grievance against a supervisor who issued him a warning because he allegedly refused to perform a work assignment. In July 2006, he received a warning for failing to secure job-related equipment, resulting in District 522’s loss of $459 to replace the equipment. In April 2007, he received a warning for leaving his work site without first obtaining his supervisor’s permission.
In August 2007, Dickerson applied for some full-time janitor positions, but he wasn’t hired for any of them. On October 17, he attended a meeting of District 522’s board of directors and complained that he was being discriminated against because of his personal traits and a speech defect. Later, he met with District 522’s attorney and repeated his belief that he was being discriminated against. On December 18, the district performed its first written evaluation of his work performance.
The evaluation form had seven categories. In each category, there were five possible ratings: outstanding, very good, good, satisfactory, and unsatisfactory. Dickerson was rated as satisfactory in “Attendance & Punctuality,” “Quality of Work,” “Knowledge of the Work,” and “Attitude.” In those categories, it was noted that he was consistently late for work and needed to improve, some jobs had to be redone because he didn’t listen to the job instructions, and he did only the bare minimum to meet job requirements. Overall, his job performance was rated as “unsatisfactory.”
In January 2008, Dickerson filed a grievance with his union alleging that District 522 was discriminating against him because of his union activities and that his poor written evaluation was a form of unjust discriminatory discipline. On February 7, he filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in which he alleged that District 522 failed to promote him to a full-time janitor position because it believed he was mentally disabled.
After he filed his EEOC charge, Dickerson approached Larry Friederich, District 522’s vice president of HR, to ask what he should be doing differently to be promoted to a full-time position. Friederich’s response included something along the lines of “you are suing your employer and you should not be suing your employer.”
On July 17, a follow-up evaluation of Dickerson’s work performance noted that he showed improvement in securing equipment, but he hadn’t improved in being a team worker, communicating with his supervisor before leaving a task, or completing his share of the workload instead of shifting responsibilities to his coworkers. The evaluation also noted that Dickerson had been orally warned several times about his unsatisfactory performance.
District 522 fired Dickerson effective September 10 based on his lack of improvement. Friederich was involved in the termination decision. Dickerson then filed a union grievance over his termination. An arbitrator ruled that he should be reinstated to his part-time position because District 522 had violated the parties’ collective bargaining agreement by failing to employ progressive discipline in correcting his behavior. District 522 did, in fact, reinstate him to his part-time position.
Dickerson then filed another EEOC charge in which he alleged that he had been fired in retaliation for filing a charge of discrimination against District 522 and that the firing itself was a further act of unlawful discrimination by his employer. He eventually filed a civil suit in federal district court alleging discrimination and retaliation based on the fact that his former employer didn’t award him a full-time janitorial position, gave him negative evaluations, and fired him. The district court dismissed the lawsuit in favor of District 522, and Dickerson appealed.
Seventh Circuit’s decision
The court of appeals affirmed the dismissal of Dickerson’s claims. First, it found that his mental impairments, including his recorded IQ of 67, substantially limited his major life activities to the extent that he qualified as a disabled person under the Americans with Disabilities Act (ADA). The court then chose to analyze his discrimination and retaliation claims together because they failed for the same reason — i.e.,he wasn’t performing his job up to his employer’s legitimate expectations.
The court emphasized that to make a valid discrimination and retaliation claim under the ADA, an employee must show that he was meeting his employer’s legitimate employment expectations and performing his job satisfactorily. The court stated that as far back as 2005, Dickerson had performance issues, and in late 2007, his overall performance was rated as “unsatisfactory.” In the follow-up evaluation, he remained an unsatisfactory employee. The court held that to survive pretrial dismissal of his case, he had to establish a genuine issue of material (significant) fact about whether he was a satisfactory employee who was meeting his employer’s legitimate employment issues, and he could not do that.
The court didn’t specifically analyze whether certain accommodations would have enabled Dickerson to perform his job satisfactorily. Given that some of his performance issues appear related to his low IQ, it’s possible that there may have been some reasonable accommodations available to help him perform at a higher level. As part of the interactive process, an employer may consider obtaining the employee’s school records or speaking with the school’s guidance counselor. There are many variables with respect to IQ, and each individual will have different cognitive abilities that may or may not lend themselves to accommodation.
Finally, the court found that Friederich’s statement that Dickerson shouldn’t have sued his employer was insufficient to demonstrate bias, considering the evidence that it was his work performance that led to his termination. Part of the court’s reasoning was that Friederich’s statement came after the district refused to promote Dickerson. Dickerson v. Bd. of Trustees of Comm. College District 522, 7th Cir., No. 10-3381 (Sept. 16, 2011).
Disability cases are very fact-specific and can create a host of problems for employers. Under federal law, you may terminate an employee who, with or without reasonable accommodation, cannot meet your legitimate performance expectations. However, because Wisconsin disability discrimination law can be broader than federal law, you must consider whether an employee’s performance deficiencies are the result of a disability. If so, you must consider whether there is a basis for granting temporary clemency or forbearance with respect to any performance issues or if there is a reasonable accommodation to help the employee improve his performance. Finally, Wisconsin law may not require employees to perform all essential job functions, so you shouldn’t rely solely on an essential functions analysis when making employment decisions affecting disabled employees.
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