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

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

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, Bonnie Akerson, 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. Akerson 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.

Akerson 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 Akerson’s 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.

Akerson received an “acceptable” performance review for her first and only performance evaluation. The review did not mention Akerson’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. Akerson 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, Akerson’s bladder condition worsened and she took a two-week leave of absence from her job. Upon her return from leave, Akerson met with one of her supervisors and an HR representative to disclose her bladder condition. During the meeting, the supervisor asked Akerson how long she would need to be in the bathroom on any given visit and also asked Akerson to let her know about her whereabouts whenever she was away from her desk for reasons other than using the restroom. In addition, Akerson’s desk was moved to a different location and her duties were reassigned. Four days after the meeting, the Bureau terminated Akerson’s employment, ostensibly due to her poor work performance.

Akerson 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 Akerson’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 Akerson’s Equal Pay Act claim.

The court refused to grant summary judgment to the Census Bureau on Akerson’s disability discrimination and retaliation claims, however, for three reasons. First, the court found that Akerson’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 Akerson’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 Akerson’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 Akerson 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 Akerson’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 Akerson 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 Akerson’s disability discrimination and retaliation claims.

Key Takeaways

The district court’s decision in the Akerson 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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.