Letting It Slide: Documenting Infractions at the Ice Rink
The U.S. 7th Circuit Court of Appeals (the federal appeals court that governs Wisconsin) recently handed a win to employers, agreeing you don’t automatically forfeit the right to discipline an employee for past poor performance simply because you chose to overlook the conduct in the past. In the case, the court also found the employer couldn’t be held liable for a failure-to-accommodate claim when the employee neglected to reveal that the light-duty job assigned to him didn’t satisfy his job restrictions.
In December 2014, Arctic Zone Iceplex, LLC, hired James Graham, Jr., to work at its ice skating and hockey rink. As a maintenance worker, his job duties included generally keeping up the rink and operating the Zamboni machine, a resurfacer used to clean and smooth the ice.
During the early stages of Graham’s employment, Arctic Zone received two customer complaints about his attitude. Arctic Zone also observed the attitude issues and noticed he had difficulty completing tasks in a timely manner. It didn’t write him up, however, or otherwise discipline him when the issues occurred.
Less than two months after the start of Graham’s employment, he fell off of a ladder and sustained several injuries, including a concussion. Consequently, he was placed on no-work status for three months. He was subsequently released to work with the restrictions of no driving and only sitting down to perform his job duties. To comply with the limits, Arctic Zone assigned him to sharpen skates, which it believed he could do while sitting down. The restrictions remained in effect until August 12, 2015.
Shortly after Graham was released to work without restrictions, he drove the Zamboni into the ice rink wall, causing jagged plastic to protrude from it. Without first removing or fixing the protruding piece of plastic, he allowed skaters back onto the rink.
Arctic Zone terminated Graham that same day because it believed the protruding plastic piece was a hazard to its customers and he had shown disregard for their safety by allowing the skaters back onto the rink. In the termination letter, Arctic Zone listed several reasons for the discharge, including his past performance issues and the Zamboni accident.
Graham filed suit against Arctic Zone for disability discrimination in violation of the Americans with Disabilities Act (ADA). He further alleged that Arctic Zone failed to reasonably accommodate his disability. The district court granted Arctic Zone’s request for summary judgment and dismissed the case without a trial. Graham appealed.
The ADA requires employers to make reasonable accommodations that would allow an individual with a disability to perform his job functions. Graham claimed the skate-sharpening duties didn’t comply with his restrictions because they couldn’t be done while sitting. He said the few times he was caught sitting and resting, he was told to get back to work.
Graham was unable to specify, however, who told him to go back to work or whether he was even sharpening skates while seated, when he was given the directive. According to Arctic Zone, Graham complained about his modified job duties but never expressed he was unable to sit while performing the skate-sharpening duties or that he thought the accommodation was unsuitable.
Courts’ finding. The trial court ruled, and the 7th Circuit affirmed, Arctic Zone couldn’t be held liable for failing to address a problem it was never made aware of. The appellate court explained that “identifying reasonable accommodations for a disabled employee requires both employer and employee to engage in a flexible, interactive process.” The court went on to state that “if an employee doesn’t provide sufficient information to the employer to determine the necessary accommodations, the employer cannot be held liable for failing to accommodate the disabled employee.”
The 7th Circuit agreed Graham had failed to uphold his end of the “interactive process.” Arctic Zone couldn’t be held responsible when it was never made aware the accommodation wasn’t reasonable.
Disability Discrimination Claim
Graham also argued the real reason for the termination was his disability and that the performance issues raised by Arctic Zone were pretextual (or a cover-up for discrimination). He said the behavioral problems cited in the termination notice couldn’t be legitimate because he had never been disciplined for them, nor had he ever received written notice before his discharge. In essence, he argued that by not addressing the issues earlier, Arctic Zone had forfeited its right to count them as black marks on his record.
Courts’ finding. The trial court held, and the 7th Circuit affirmed, Graham hadn’t presented enough evidence from which a jury could find disability discrimination had caused his termination. Just because Arctic Zone had let the performance issues slide without a “formal response” didn’t mean they went “unnoticed or untallied.” The court explained that even minor instances can eventually “accumulate into a record that justifies termination.” Graham v. Arctic Zone Iceplex, LLC, Case No. 18-3508 (7th Cir., July 23, 2019).
Employers often let minor infractions by employees “slide” without a write-up or some sort of discipline. The reasons for doing so may be justified:
- Perhaps the infraction is minor, and you don’t want to rock the boat for something so petty.
- Perhaps the employee is new, and you don’t want to hurt morale by writing up every mistake.
- Perhaps the individual has personal problems, and you decide to give him a pass.
Whatever the reason may be, the 7th Circuit has held that a failure to write up every little problem doesn’t mean you forfeit the right to bring up the accumulated infractions at a later stage.
While the decision is a victory for employers, your lawyers should still caution and encourage you to document every infraction. Even if you choose not to discipline an employee for every mistake, it is still best practice to document the infractions. Doing so will, at the very least, ensure details and memories don’t fade with time. Imagine, for example, that the only supervisor aware of the circumstances surrounding an incident is no longer with the company. You would be aware the employee had performance issues but have no knowledge of the details.
The ruling is also a win for employers because it places the duty on employees to provide you with enough information to accommodate a disability. Individuals who fail to do so are likely to face an uphill battle if they later assert the accommodation provided was insufficient.
This article, slightly modified to note recent updates, was featured in the September 2019 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.