Publications: Employer’s Shifting Explanations For Employee Termination Not Fatal

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Score one for employers in the Seventh Circuit (which covers Illinois, Indiana and Wisconsin)where an employer engaged in risky behavior - shifting its explanations for an employee’s discharge - and got away with it. In Nese v. Julian Nordic Constr. Co., No. 04-2576 (7th Cir. 2005), a construction firm hired the plaintiff, a carpenter, after he disclosed that he suffered from epilepsy. Six months later, the contractor cut the carpenter’s pay and eventually terminated him, citing performance reasons and lack of work. The carpenter sued under the American With Disabilities Act (“ADA”), claiming that the contractor’s treatment of him was attributable to its incorrect perception that he suffered from a disability - epilepsy. Significantly, the carpenter did not claim that his epilepsy actually made him disabled within the meaning of the ADA. Rather, he argued that his former employer perceived him as disabled due to his epilepsy and then made adverse employment decisions because of that incorrect perception.

The carpenter attempted to prove an ADA violation by combining evidence that his former employer was aware of his seizure disorder with evidence that it “concocted” a pretextual justification for the termination, specifically, that the carpenter’s work pace supposedly was too slow. The carpenter further argued that evidence of pretext existed in the fact that his performance evaluation form contained a whited-out comment that he “has worked for himself for a long time and has apparently never had to shift gears,” which was replaced with the comment, “He needs to complete assigned tasks within acceptable time frame, also needs to learn new tasks and methods.” The carpenter argued that if an employer’s reason for an employment action was somehow less than straightforward, the court can and should draw the conclusion that the employer was motivated by illegal discrimination.

Neither the trial court nor the Seventh Circuit Appeals Court agreed with the carpenter. The Seventh Circuit held that an employer is not guilty of discrimination every time it takes an employment action for one reason, but provides a different explanation to the employee, unless the real reason for the action is based on some protected characteristic.

The construction firm was lucky in this case that the court did not construe its shifting explanations as evidence of disability discrimination. As it turned out, the facts in this case clearly demonstrated the employer’s lack of discriminatory intent, especially since the same person who hired the carpenter also terminated him. However, in cases where the facts are not so clearly in the employer’s favor, employers with shifting reasons for discipline, or more commonly, for discharge, risk a high probability that such shifting reasons could be construed as evidence of discrimination. Employers are well advised to follow their attorneys’ long offered advice - avoid shifting reasons for discipline or discharge.