Are Employees Protected From Retaliation When Requesting An Accommodation Under The ADA?

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees on the basis of disability. Discrimination under the ADA includes not making reasonable accommodations to the known physical or mental limitations of an individual with a disability. A reasonable accommodation may include job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, and an allowance of time for medical care or treatment. The ADA also protects employees against retaliation for requesting an accommodation for their disability. As explained by the U.S. First Circuit Court of Appeals in Soileau v. Guilford of Maine, Inc., 105 F.3d 12 (1st Cir. 1997), the U.S. Congress made it unlawful for employers to retaliate against employees who request an accommodation otherwise employees would be “unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.” The First Circuit’s more recent decision in Kelley v. Correctional Medical Services, Inc., 707 F.3d 108 (1st Cir. 2013) illustrates the protection afforded to employees who request a reasonable accommodation under the ADA.

Employer Hostility To Request For Accommodation

In Kelley, Katherine Kelley (Kelley) claimed that her employer, Correctional Medical Services (CMS), violated the ADA by terminating her in retaliation for requesting an accommodation for her disability. CMS provides medical staffing and health care services for inmates at the Maine Prison System. Kelley was employed by CMS as a licensed practical nurse. In July 2007, Kelley shattered the right side of her pelvis in a horseback riding accident. As a result of the injury, Kelley required surgery and took a six week leave of absence from work. When she returned to work, Kelley provided her supervisor with a doctor’s note outlining her restrictions, including her inability to use her hands for lifting and her need to use a cane at work. The supervisor told Kelley that the doctor’s note regarding her medical restrictions was not on the correct CMS form and told Kelley she could not return to work until she provided a doctor’s note on the correct CMS form. The director of nursing overruled the supervisor’s demand and allowed Kelley to return to work.

After returning to work, Kelley continued to experience hostility from the same supervisor regarding her disability and requests for accommodations for her disability. Because her leg problems persisted in 2008, Kelley continued to use a cane at work. The supervisor told Kelley not to use the cane at work unless she obtained another medical authorization to do so. As a result, Kelley provided more notes from her doctors stating she needed to use a cane at work and could only work 10.5 hours at a time. The supervisor also allegedly accused Kelley of lying about the extent of her injuries and stated Kelley would be unable to walk if she had truly fractured her pelvis. One member of CMS management told Kelley that her supervisor wanted her gone.

On her final day of work in October 2008, Kelley requested another accommodation for her disability by asking for permission to switch shift assignments with another employee because of leg pain she was experiencing that day. Although the employee agreed to switch shift assignments with Kelley, the supervisor insisted that Kelley perform some of the duties of her shift assignment. When Kelley told the supervisor that the duties involved too much physical activity, the supervisor instructed Kelley to perform the duties or she would be fired for insubordination. When Kelley refused, the supervisor had Kelley escorted from the premises by security. Based on the supervisor’s recommendation, Kelley was formally terminated about one week later.

The trial court found that CMS justifiably fired Kelley for insubordination and dismissed Kelley’s retaliation claim. On appeal, the First Circuit reversed and reinstated Kelley’s retaliation claim. The First Circuit found that the trial court erred by focusing “almost exclusively on Kelley’s insubordination.” In doing so the First Circuit explained, the trial court improperly disregarded evidence of the supervisor’s on-going hostility towards Kelley’s disability and accommodation of Kelley’s disability.

Unlike the trial court, the First Circuit examined the totality of the circumstances in evaluating the supervisor’s actions on Kelley’s final day of work. As evidence of the supervisor’s hostility towards Kelley’s requests for accommodations and resistance to providing Kelley with accommodations, the appellate court pointed to the supervisor’s attempt to prevent Kelley from returning to work until she obtained a doctor’s notice on a correct CMS form, her accusation that Kelley was lying about having a fractured pelvis and the extent of her injuries, and her instruction that Kelley could not use a cane at work until she returned with another doctor’s note stating the cane was necessary to aid her mobility. The First Circuit found that the supervisor’s actions on Kelley’s final day of work could be viewed as the culmination of the supervisor’s “ongoing disability based animus” and an “eagerness to be rid of Kelley.” In other words, the appellate court explained, a jury could find that the supervisor’s actions against Kelley in instructing her to perform duties that another employee agreed to perform, having her escorted off the premises by security, and recommending her termination were “a disingenuous overreaction to justify dismissal of an annoying employee who asserted her rights under the ADA, rather than the firing of an insubordinate employee.” Thus, the First Circuit concluded, it was for a jury to decide whether the supervisor “conveniently seized upon” Kelley’s refusal to perform duties of her shift assignment “as a basis for her termination” and “whether this decision was the product of retaliatory animus.”

Employer Hostility To Accommodation Is Evidence Of Retaliation

Kelley illustrates that an employer’s actions which manifest hostility towards an employee’s disability or hostility towards accommodating the employee’s disability is compelling evidence of the employer’s intent to retaliate against the employee for requesting a reasonable accommodation. As in Kelley, such evidence can be used to prove that the employer subjected the employee to an adverse employment action because the employee “had engaged in ADA-protected conduct one too many times.” As the Kelley court observed, an employer will sometimes seize upon an incident to fire an employee because it wants to be rid of an employee who asserts his or her rights under the ADA by requesting an accommodation for a disability. 

Consultation With Employment Law Attorney

We have extensive experience representing employees who have been subjected to disability discrimination and retaliation for requesting an accommodation for a disability. If believe that you have experienced disability discrimination or your employer has retaliated against you for requesting an accommodation for a disability, please contact our office for a free consultation.