Employee fired days after receiving VA letter rating PTSD as 70 percent disabling advances FMLA, ADA claims

A veteran fired from his job at a car dealership just days after he received a letter from the VA rating his post-traumatic stress disorder as 70 percent disabling can proceed to trial on his FMLA interference and retaliation claims as well as his claims under the ADA. Citing evidence he was told “[W]e’re going to have to part ways . . . . due to you not being a hundred percent while you’re here, being on the medications that you’re on and missing work for appointments at the VA, we need to let you go,” a federal district court in Illinois denied his employer’s summary judgment motion in large part.
Although the car salesman indicated in a hiring questionnaire that he did not need any special accommodation to do his job, he claimed his health problems did interfere with his work performance. Specifically, he says, he was terrified of filling balloons for dealership events because of his anxiety about the noise they might make if they popped; he sometimes got anxious at work and needed to remove himself from the situation; he sometimes had to sit down to manage his restless leg syndrome, or stand if he had been sitting too long; he experienced unpleasant side effects from his medications; and he had panic attacks at work. He also claimed he needed to take time off to attend doctors’ appointments at the VA.

Big fat check.

According to the employee, when he told his employer that he would be getting a disability percentage rating from the VA, his manager responded “Is that why you’re planning on quitting? When you get that big fat check for your disability, you’re going to quit right?” He was fired several days after he received the letter, purportedly because of his poor sales performance.

Notice.

After first finding a jury could conclude that the employee’s PTSD or other ailments were serious health conditions, the court rejected the employer’s contention it was never informed of his probable need for leave. Citing evidence that he told his manager about his PTSD, that his managers noticed the effect his medications had on him at times and sent him home because of it, and that he showed a manager the letter from the VA, the court observed that a reasonable jury could find the employer received notice of his PTSD sufficient to show he likely had an FMLA-qualifying condition.

Denial of FMLA benefits.

As to the employer’s assertion that the employee could not show he was denied FMLA benefits to which he was entitled because he was not prevented from taking time off that he requested or from returning to work after a period of absence, the court explained that the interference prohibited by the FMLA is broader than this. It includes termination of an employee because he has elected to exercise his rights under the FMLA by taking leave, or refusal to allow an employee to return to the same or a similar position after taking leave.

Confusion.

The employer’s confusion, said the court, might “come from the fact that three pertinent subsections of the FMLA describe prohibited conduct by employers-2615(a)(1), (a)(2), and (b)-but the various courts of appeal, including the Seventh, have not clearly explained the nature of and differences between the causes of actions these provisions give rise to.” The point of deepest confusion, the court noted, “seems to lie in the fact that subsection (a)(1) bans interference with exercise of FMLA rights, i.e. leavetaking or reinstatement, but also seems to be the only place to fit retaliation based simply on taking FMLA leave, since subsection (a)(2), although labeled ‘discrimination,’ bars discrimination only for ‘opposing any practice made unlawful by this subchapter.'” Thus, courts have not always seemed to know where a retaliation claim should fit.

Interference.

Turning to the employee’s first claim for “Interference with FMLA Entitlement,” in which he cited as an example a failure to reinstate him, the court presumed he meant his termination as he did not claim he took FMLA leave and then was not permitted to return. But, said the court, he also produced enough evidence to permit a reasonable jury to find he was terminated because he took time off despite his right to do so under the FMLA, which was enough to support a claim under Section 2615(a)(1). Further, if he was fired for “missing work for appointments at the VA,” as he claimed, and that activity was protected by the FMLA, then his employer interfered with his exercise of rights under the FMLA. In addition, he testified that on many occasions, he was prevented from taking leave when he asked for it. Thus, this claim survived summary judgment.

Discrimination and retaliation.

As to his second FMLA claim, labeled “FMLA Discrimination and Retaliation,” which was brought under Section 2615(a), the court found it unclear whether the employee meant to bring a claim under Section 2615(a)(2), alleging termination for “opposing any practice” made unlawful by the FMLA or, rather, whether he meant he was terminated in retaliation for taking FMLA leave. In his response to the summary judgment motion, however, he did not seek to show he opposed any practice made unlawful by the FMLA and thus the claim was dismissed as to that ground. Insofar as he was alleging he was retaliated against for taking FMLA leave, the court found he offered enough evidence for the claim to survive.

Causal connection.

In support of a causal connection between his exercise of FMLA rights and his termination, the court found that in addition to other evidence, the manager’s alleged statements that the employee was being fired for missing work for VA appointments and for being on medications was sufficient on its own to survive summary judgment. And while the employer claimed the employee was fired because of his low sales numbers, his total sales numbers from the beginning of the year onward were the third lowest of a relatively small sales staff and were the fourth lowest for the last three month of his employment. Nor was there any evidence that his numbers were unusually bad or not in line with the employer’s legitimate expectations.

ADA claims.

Turning to his ADA claims, the court found that the employee’s PTSD and associated symptoms constituted conditions that a reasonable jury could find to be disabling. Citing evidence he discussed his PTSD with two managers, the court found a jury could conclude the employer knew he suffered from PTSD.
As to a causal connection between his disability and his termination, the court again pointed to the manager’s alleged statement at the time of the employee’s termination. Not only could a reasonable jury construe the claim about the employee “not being a hundred percent” as a reference to his PTSD and its effect on him, it could also construe the alleged statement about firing him because of the medications he was on as an admission that he was fired due to the illnesses those drugs treated. And even if a jury did not accept the employee’s version of the manager’s statement, it could construe as discriminatory the employer’s decision to fire him days after he received a detailed diagnosis, in letter form, of his PTSD-a diagnosis that he had shown to a manager just days earlier.
His failure-to-accommodate claim also survived as a jury could conclude that purportedly allowing the employee a few days off here and there but denying him others, requiring him to stand at the door even when he felt physically unable to, and requiring him to reschedule his VA appointments, then firing him amounted to a failure to engage in an interactive process, and thus, a failure to reasonably accommodate his disabilities.

SOURCE: Carlson v. Sexton Ford Sales, Inc., (C.D. Ill.), No. 4:15-cv-04227-SLD-JEH, September 26, 2017.
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