The Americans with Disabilities Act prohibits employers from discriminating against individuals because of disability or perceived disability. However, in order to sufficiently support an ADA claim, an individual employee must be able to prove that he was qualified to perform his job in a satisfactory manner, with or without accommodation. Recently, the 7th U.S. Circuit Court of Appeals upheld summary judgment in favor of an employer, based upon the fact tat the plaintiff/employee, although disabled, was unable to show that he was meeting the legitimate job expectations of his employer and therefore was not a “qualified individual with a disability” under the ADA. Dickerson v. Bd. Of Trustees of Comm. College District 522, 7th Cir., No. 10-3381, September 16, 2011.
Robert Dickerson is employed as a part-time custodian for a community college in Illinois (“District 522”). Dickerson is mentally impaired, with a Full Scale IQ of 67 which, according to the court, falls into the range of “mild mental retardation.” In August 2007, Dickerson applied for a full-time position, but was not the successful candidate. In December of that year, Dickerson’s overall job performance was rated as “Unsatisfactory,” based on a number of issues, including the fact that he needed constant supervision or would wander off jobs. He often left his work area, putting additional burden on his co-workers. In January 2008, Dickerson filed a grievance with his union, and in February, he filed an EEOC charge alleging discrimination based upon his mental disability.
In the Spring of 2008, subsequent to the EEOC charge, Dickerson asked Larry Friederich, the District’s Vice President of Human Resources, what he should be doing in order to be promoted to a full-time position. Friederich responded along the lines of “you should not be suing your employer.”
Although Dickerson’s performance improved somewhat in 2008, the District found that he had made “insufficient progress” in correcting the issues raised in his 2007 evaluation, and terminated his employment. Dickerson grieved the termination, and an arbitrator reinstated him to his part-time position on the basis that the District had failed to follow the bargained-for progressive discipline policy. Dickerson then filed a lawsuit against District 522, claiming that District 522 discriminated against him by failing to promote him, evaluating him negatively, and firing him. The lower court granted summary judgment in favor of District 522. That decision was upheld by the Seventh Circuit on appeal.
An employee can support claims of discrimination and retaliation with direct evidence or indirect evidence. Direct evidence typically requires an admission by a decision-maker. In this case, Dickerson pointed to Friederich’s statement regarding the EEOC charge to allege that District 522 acted against him because of that charge. Indirect evidence requires the now-familiar “burden-shifting” analysis under McDonnell-Douglas, and requires an employer to set forth a legitimate business reason for its actions in order to rebut an employee’s prima facie case of discrimination.
In either event, the ADA protects only a “qualified individual” – someone with a disability who can perform the essential functions of the job with or without reasonable accommodation. In this case, the Seventh Circuit determined that Dickerson was unable to fulfill his job duties, based upon his history of discipline and performance criticism. It pointed out that Dickerson had received performance warnings as far back as 2005 for failing to complete work assignments and for leaving the job site without permission, that his 2007 performance evaluation was “Unsatisfactory,” and that his supervisor had frequently reprimanded him for work-related issues. While Dickerson disagreed with the negative evaluations, the court did not interpret that to mean that the evaluations were the result of unlawful discrimination.
While the rationale in this case is somewhat murky and seems to conflate the analysis of direct and indirect evidence, the holding rests squarely on the fact that District 522 was able to provide evidence and documentation of Dickerson’s history of performance problems, warnings, and counselings. The message for employers is obvious: regular, objective, and fully documented performance reviews are critical evidence in the defense of discrimination cases. Written job descriptions that spell out the duties and responsibilities of an employee also can assist in providing evidence of an employer’s legitimate expectations of an employee, and should be reviewed and updated regularly to accurately reflect that information.