- A call center employee for will get another chance to prove she was fired because of her disability, severe back pain, the 4th U.S. Circuit Court of Appeals held (Cowgill v. First Data Technologies, Inc., No. 21-1543 (4th Cir. July 22, 2022)).
- Prior to the employee’s injury, she had a nearly spotless record, court documents indicated. Several months later, her supervisor placed her on a 90-day improvement action plan (IAP) after she was rude on a call. About a month into the IAP, another caller reported that she hung up on him, although she said she couldn’t hear anyone on the line. The company fired her, and she sued on several grounds, including that the company violated the Americans with Disabilities Act by firing her because of her disability.
- The 4th Circuit revived the ADA claim but otherwise upheld judgment for the employer. In sending the case back for trial, the 4th Circuit found it “highly suspicious” that the supervisor failed to coach the employee as indicated by the IAP. “It is hard to believe that a company ... concerned about curbing call avoidance would fail to follow through when—pursuant to its own plan—that help is required to improve an employee’s work performance,” the court said. This, along with other evidence, raised jury questions about the employer’s motive, the court held.
This case was revived largely because of two common issues: suspicious timing and evidence of similarly situated employees being treated more favorably.
Three weeks after the employee disclosed her disability and asked for an accommodation (intermittent leave to see a physical therapist), her supervisor issued her a final warning for excessive absences (allegedly including approved leave). An HR staff member eventually withdrew the warning, but that didn’t “erase the mark of discriminatory motive,” the 4th Circuit said.
Also, when the warning was withdrawn, an HR staff member told the employee she needed to “protect” her job, according to court files. The comment could reveal a discriminatory motive because it suggested the employee’s job would not be protected if she let her disability get in the way of her performance, the court said.
The timing of the IAP was also suspicious, the court added. The supervisor placed the employee on the plan after confronting her about a call that took place a month earlier. The plaintiff claimed the delay was unusual in that company practice was to review questionable calls within two days. The supervisor didn’t bring up the call until after the employee said she wanted to renew her accommodation request, court records indicated. At that point, the supervisor immediately told her she was being placed on an IAP and could be fired if she was unprofessional in the future. This sequence of events strongly implied discrimination, the court noted.
The company allegedly treated a similarly situated nondisabled coworker more favorably. For example, after the co-worker was issued a final warning for mishandling a call (referred to as “call avoidance”), she received special attention from two team leaders who sat next to her and coached her as she worked. By comparison, the company provided far less help to the plaintiff, the 4th Circuit observed. Her IAP intended for the supervisor to meet with her once a week. But the supervisor met with her only once, and the session consisted of the supervisor telling her to “play pretty,” according to court files.
“A reasonable factfinder could conclude that First Data searched for and found the single nuggest of misconduct that allowed it to place [the plaintiff] on an IAP and set the course for her termination,” the court said. A jury will have to determine if she was fired for impermissible reasons.