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“No Brainer” Terminations Can Become Close Calls When The Employee Has Engaged In Protected Activity (Part 3)

April 30, 2013

Here is another interesting case from the Seventh Circuit. Even though the employee allegedly threatened violence, the court found a fact question on the termination.

In Miller v. Illinois Dep’t of Trans., 643 F.3d 190 (7th Cir. 2011), Miller requested an accommodation under the ADA. After much wrangling back and forth, it was denied. Angie Ritter, an IDOT personnel manager, allegedly told Miller “we don’t grant requests.” Two months later, on his first day back at work after a company-mandated leave of absence that was related to his request for accommodation, Miller was at an IDOT office, where he encountered Ritter. Referring to Ritter, Miller then allegedly said to another employee: “Right there is Arch enemy Number 1. I have never hit a woman. Sometimes I would like to knock her teeth out.”

IDOT construed Miller’s comment as a threat, informed Miller that he had been relieved of duty, and instructed him to go home. Shortly thereafter, Miller was formally discharged for making a threat of violence against another employee and for disruptive behavior. Miller grieved his discharge, and the parties submitted to arbitration. Miller was found to have engaged in “conduct unbecoming” but was returned to work, without back pay or benefits. Miller then filed suit under the ADA, and for retaliatory discharge. Miller presented evidence that a crew leader, named Steve Maurizio, had threatened violence against his co-workers on more than one occasion – including one incident in which he threatened to kill three co-workers – but unlike Miller, was not disciplined or terminated for his behavior. The district court granted summary judgment against both claims.

The Seventh Circuit U.S. Court of Appeals reversed the district court’s grant of summary judgment. As for the retaliation claim, the court stated:

In reviewing the evidence, we cannot second-guess IDOT’s employment decisions to the extent that they were innocently unwise or unfair. But Miller has presented sufficient evidence from which a finder of fact could genuinely call into question IDOT’s honesty. First, a reasonable jury could find that Miller’s statement about Ritter was not a “threat” at all, or that even if IDOT properly construed it as such, its decision to terminate Miller was a disingenuous overreaction to justify dismissal of an annoying employee who asserted his rights under the ADA. Miller presented evidence that Maurizio himself had had a genuinely violent workplace outburst but was not terminated, and yet Miller was terminated for a much milder comment on his first day back at work. Also, Ritter’s comment to Miller that “we don’t grant requests” could be construed by a reasonable jury as showing a general hostility to requests for accommodation under the ADA. There is more here than “mere temporal proximity.” Cf. Stone, 281 F.3d at 644 (noting that mere temporal proximity between the protected conduct and the allegedly retaliatory act “will rarely be sufficient in and of itself to create a triable issue”). The combination of the ambiguity of the asserted threat, the response to Maurizio’s violent outburst, the hostility toward Miller’s request for accommodation, and the timing provided sufficient evidence to permit a reasonable trier of fact to infer pretext and retaliatory intent. The question must be decided at trial rather than on summary judgment.

Id. at 200-01.

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