Employer wins discrimination case — Evidence of non-performance outweighs employer’s imprudent remark

October 7, 2011 – 2:09 pm | By Kathryn McGovern | Post a Comment

A recent appeals court ruling shows that clear and consistent documentation of an employee’s poor performance is more important than certain imprudent things a supervisor may say to an employee.

Robert Dickerson, an individual with a mental disability, worked as a part-time custodian for an Illinois community college. He was recorded several times losing employer property and leaving his worksite without permission.

In a performance evaluation, a supervisor documented that Dickerson was late for work, failed to listen to instructions and did only the
bare minimum to meet job requirements. Dickerson regularly wandered off the job site and required constant supervision. Dickerson refused to sign the evaluation, submitted a signed statement to the contrary and filed a grievance with his union.

He applied for a full-time position and was denied. He filed a discrimination charge with the EEOC but continued to apply for full-time
jobs. When he asked how he could improve his chances of a promotion, a supervisor offered constructive criticism but also said “you should not be suing your employer.” (One successful part-time applicant was told that if he wanted to be elevated to a full-time position, he should “stay away from Bobby Dickerson.”)

When Dickerson’s performance did not improve, he was fired. Dickerson filed a second EEOC charge, adding a retaliation claim. He eventually filed suit, alleging the college violated the Americans With Disabilities Act when it denied him a promotion, gave him negative reviews and fired him.

A federal district court dismissed his claims and he appealed to the 7th U.S. Circuit Court of Appeals. The appeals court upheld
(Dickerson v. Board of Trustees of Community College District) the lower court’s summary judgment. Dickerson was not meeting his employer’s “legitimate employment expectations,” the court found.

To survive summary judgment, Dickerson would have needed to show that the employer’s reason for his firing was pretextual. He pointed to the comment made by his supervisor, but the court said this statement was nothing more than “imprudent.”

It “lends little support to Dickerson’s discrimination claim because it came after he filed his EEOC charge,” the court said. In addition,
the employer had ample evidence the true reason for his firing was Dickerson’s poor job performance.

“For a valid discrimination and retaliation claim under the ADA, an employee must show that he was meeting his employer’s legitimate
employment expectations, and that he was performing his job satisfactorily,” the court explained.

Dickerson’s signed statement disputing his evaluation did not raise enough of a question to survive summary judgment, the court added.

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