- Employment Law Update: Evidence that a company created a pretextual reason for a discharge may tend to prove that it regarded the employee as disabled.
- February 23, 2005
- Law Firm: Dickie, McCamey & Chilcote, P.C. - Pittsburgh Office
For purposes of the Americans with Disabilities Act (ADA), the term "disabled" can refer to an impairment that substantially limits a major life activity of an individual, or to the perception that the individual has such an impairment. The 6th U.S. Circuit Court of Appeals has held that an employer's pretextual reason for an employee's termination may be sufficient to show that the company regarded the individual as impaired and that the termination was based upon that perception. Moorer v. Baptist Memorial Health Care System, 6th Cir., No. 03-5855/5965, February 11, 2005.
William Moorer was employed by Baptist Memorial Health Care System for 17 years, moving through a series of promotions until his assignment, in 1995, to Administrator and Chief Financial Officer of Tipton County Baptist Hospital (BMH-Tipton). Early in 1997, Moorer met with his supervisor to discuss a list of performance concerns that recently had arisen and to work to develop a "plan of action" to address the concerns.
In mid-1997, Moorer was assigned to a new supervisor, Cathy Hill, who met with Moorer regarding performance issues. On July 21, 1997, Hill prepared a draft memo that acknowledged that Moorer had made efforts to correct deficiencies but added that Moorer needed to improve overall job performance. Hill did not send the memo at that time. However, on the following day, Hill attended a meeting at which she spoke to Moorer. Hill's later recollection was that Moorer smelled of alcohol, appeared to be overly fatigued, and had a "ruddy" complexion. Based on that meeting, Hill recommended to her own superiors that Moorer be referred to the company's employee assistance program (EAP) for possible alcohol-related problems. As a follow-up, Hill gave to Moorer a redrafted version of the July 21 memo, adding a directive that Moorer obtain a "fitness assessment" through the EAP and participate in any recommendations made through that assessment. At a subsequent meeting with Moorer, Hill stated that she had a family history of alcoholism and that she thought Moorer was an alcoholic.
After the EAP evaluation, Moorer entered an alcohol treatment center in Atlanta. While Moorer was undergoing treatment, Hill contacted Moorer's wife and informed her that, based upon her own knowledge of alcoholism, Hill believed that "alcoholism is an incurable disease and your husband will never be cured, and it is a deadly disease."
During Moorer's absence, Hill was contacted by the Chief of Staff at BMH-Tipton, who informed her of a list of problems and deficiencies at the hospital that had developed in the prior three to five years. Based upon Hill's assumption that Moorer played a role in those deficiencies, Hill recommended that Moorer not be permitted to return to his employment with the hospital system. Hill and her immediate supervisor met with Moorer during his stay at the Atlanta treatment facility and informed him of his termination. At that meeting, Hill told Moorer that his work problems were caused by his alcoholism and that she believed he no longer was able to perform his job as a hospital administrator.
Moorer brought suit against Baptist, alleging that he was fired in violation of the ADA. In order to prevail on his claim, Moorer was required to show that Baptist regarded him as unable to work in a broad class of jobs, or in a broad range of jobs in various classes. Although this is an extraordinarily difficult burden, Moorer was able to show, through testimony and evidence, that Hill's rationale for the termination was built largely on her own perceptions that Moorer would be unable to continue in his management role because of his alcoholism. Because the evidence supported Moorer's argument that the reason given for his termination was largely pretextual, Moorer was able to assert that his disability was the real reason for the firing and that the company violated the ADA.
After a bench trial (no jury present), the district court determined that Baptist regarded Moorer as having a disability and had terminated him because of it. It awarded back pay, front pay, and compensatory damages of over $800,000, along with over $212,000 in attorney fees. The award was upheld on appeal.
This is a difficult issue for employers, and one that should be approached with caution and full recognition of the obligations and responsibilities set forth under the ADA. In this case, the company's basic reactions to Moorer's performance problems generally were appropriate. The company documented the problems, met with Moorer, and began to implement an improvement plan. The company's reaction to Moorer's perceived alcohol problem, however, was poorly planned and badly implemented and included too many personal remarks. The referral to EAP may have been appropriate and justified, but Hill's intrusion into the process was not. Her personal remarks to Moorer and his wife regarding her own experiences with alcoholism, and her attempt to link Moorer to hospital problems that were unrelated to his work performance and responsibilities, created support for Moorer's argument that the real reason for his termination was his perceived disability. Additional investigation and documentation of performance problems, and continued attempts to assist Moorer in improving his performance, along with less personal involvement may have led to a different result.