A recent opinion from the U.S. Tenth Circuit Court of Appeals involving Tulsa’s American Airlines facility serves as a reminder of the kind of evidence required to establish retaliation.

Worker sues after failing competency test and losing position

In Pittman v. American Airlines, Inc., employee Anna Pittman filed suit after being rejected for a hazardous materials cleanup position. Pittman, an African American with dyslexia, hearing problems and a learning disability, had worked for American Airlines for many years as a building cleaner. In 2012, American Airlines outsourced its building cleaner positions and made an agreement with its union to allow the existing building cleaners to move into maintenance support positions. Pittman and five other employees then applied for jobs as hazardous waste maintenance workers.

The new position required individuals to access an online database and read cleanup instructions for specific chemical spills. Additionally, after 180 days, applicants were required to pass a test in order to demonstrate their competence. To assist them in doing so, American Airlines provided classroom instruction and training and had them shadow senior hazardous waste maintenance support employees for six months.

Pittman was given at least two weeks notice of her test date. While she did not ask for an accommodation of her dyslexia or hearing problems, she did complain to her supervisor during the test preparation period that she was not being adequately prepared for the test because she was a black woman.

Pittman failed the test. Because her previous job had been outsourced, she could not return to it, and American Airlines terminated her employment. Pittman sued for race and disability discrimination and retaliation.

Court rules accommodation request inadequate, pretext not shown

To establish disability discrimination, Pittman was required to show: 1) that she engaged in “protected activity by demonstrating that she had made a request for accommodation that was sufficient to qualify as a protected activity; 2) that she suffered an adverse action; and 3) a causal connection between protected activity and the adverse action.”

The Tenth Circuit found Pittman’s claim for disability retaliation must fail because of the nature of her request for an accommodation. The court said a request must make clear that an employee wants assistance for the disability. It reiterated the familiar concept that if an employer does not know that an employee is engaging in protected activity, it cannot retaliate against that employee because of the protected conduct. Pittman argued she engaged in protected activity in a number of ways, including (1) providing, to an unidentified person or department several years before, a doctor’s note stating she had a disability, and (2) requesting oral administration of the exam and exam preparation. She also presented a doctor’s note after she failed the exam stating she had dyslexia and required oral exams. The court found that the initial doctor’s note was not sufficiently direct and specific to constitute notice of a disability. It found that the requests to have the exam administered orally was not sufficiently linked to a disability to constitute notice of a disability. The doctor’s note submitted after she failed the test was rejected as a request for a reasonable accommodation. It was also rejected as a basis for unlawful retaliation because her employment had previously been terminated.

In the Tenth Circuit, a claim for retaliation may proceed if there is a sufficiently short period of time between the protected activity and the alleged retaliation. Because Pittman could not remember when she complained that he was not being adequately prepared for the test, she could not rely on temporal proximity to support her claim.

The court also found that even if Pittman satisfied the prima facie showing for race and disability discrimination, she failed to establish that the reason for her termination – the outsourcing of her previous position and her failure to pass the test for the hazardous waste maintenance position – was pretext for unlawful retaliation. Pittman argued that American Airlines’ failure to engage in the interactive process was evidence of pretext. The court disagreed, again, reiterating that the employee must make an adequate request for accommodation before an employer’s duty to engage in the interactive process is triggered under the ADA. Neither the initial doctor’s note, Pittman’s vague request for an oral exam, nor the doctor’s note provided after her termination gave American Airlines such notice.

The court affirmed the district court’s grant of summary judgment to American Airlines.

• Pittman v. Am. Airlines, Inc., 2017 FEP Cases 194139 (June 8, 2017)