Dive Brief:

• A university employee who requested two Americans with Disabilities Act (ADA) accommodations in 2012 and was fired for performance issues in 2015 was not able to prove discrimination or retaliation (Smith v. University of Scranton, No. 18-2655 (3rd Cir. May 9, 2019)).
• The employee received several poor performance reviews and two warnings before she made her accommodation request, and her performance remained "spotty" afterward, said the 3rd U.S. Circuit Court of Appeals. She made numerous mistakes, was inattentive and managed her time poorly, even after her employer began putting her assignments in writing to help her keep track of tasks while dealing with memory problems and headaches, as she requested.
• While an employer may not fire an employee for requesting a disability accommodation, that request "does not immunize [the employee] from being fired for legitimate reasons," said the 3rd Circuit. Additionally, said the court, employers are free to discuss events occurring around the time of an accommodation request: "[T]he request does not put years of work history off-limits." Because the employee's "years of poor performance, not her accommodation request" were the cause of her termination, the 3rd Circuit upheld a district court's summary judgment in favor of the university. 

Dive Insight:

In general, when an adverse employment action closely follows a protected activity — such as complaining about harassment or requesting a disability accommodation — it can create an inference that the adverse action was improperly made in response to that protected activity. In fact, timing alone can establish a prima facie case of retaliation, Philip K. Miles III, a shareholder at McQuaide Blasko, previously told HR Dive.

But this does not mean that employees in protected groups are insulated from legitimate discipline, up to and including termination. The 6th Circuit, for example, recently upheld the termination of an employee one month after he returned from Family and Medical Leave Act (FMLA) leave. His firing was considered warranted because he was found to have abused his employer's travel policy.

On the other hand, it's harder for employers to defend themselves against suspiciously timed actions if the employee in question is an exemplary performer. A dental practice manager with a lengthy history of strong performance reviews recently survived a motion for summary judgment on her ADA claim; she was fired barely a week after informing HR of a medical condition. And Humana recently paid $500,000 to settle a lawsuit brought by an employee with excellent reviews fired a few weeks after returning from FMLA leave.

Detailed, contemporaneous documentation of performance issues is crucial to establishing that discipline is justified and not merely an illegal response to protected activity. Similarly, performance reviews should be thorough, accurate and conducted on a regular schedule; an unusual last-minute flurry of paperwork can appear suspicious to a judge or jury, experts say.