By Samantha L. Brooks and Erin Dougherty Foley

Seyfarth Synopsis: In McCann v. Badger Mining Corporation, — F.3d. — (7th Cir. 2020), the Seventh Circuit affirmed summary judgment and held that no jury could conclude that plaintiff’s position would not have been eliminated “but for” her disability.

In McCann, the plaintiff alleged that she had been discriminated against on the basis of age and disability when her former employer eliminated her position in October 2015 and failed to accommodate her. The District Court granted the employer’s motion for summary judgment on all counts.  Plaintiff appealed only her claim that her position was eliminated because she was disabled.

Plaintiff was employed by Badger Mining Corporation’s (Badger) predecessor, Atlas Resin Proppants (Atlas), as a laboratory technician in the research and development laboratory.  Plaintiff’s performance reviews for the years 2013 and 2014 were acceptable, but her supervisors noted some shortcomings, including dealing with conflict, communication, and dispute resolution. Badger merged with Atlas in April 2015. After the merger, Plaintiff was assigned and trained to perform “batch mixing.” Shortly thereafter, however, it was determined that Plaintiff was not satisfactorily performing her batch mixing responsibilities and another employee was assigned to perform batch mixing.

In September 2015, Plaintiff sought treatment for pain and numbness in her hands. On September 21, Plaintiff emailed her supervisor and human resources, stated that she had been diagnosed with two different conditions, and that she would require time off for additional follow-up tests, appointments, and possibly surgery. This email was the first notice to Badger about plaintiff’s hand conditions.

Unbeknownst to Plaintiff, in the late summer and early fall of 2015, Badger had been exploring cost-cutting measures and other measures to increase efficiency. Ultimately, Badger determined that 33 positions across three different facilities needed to be eliminated, including one position in the research and development department where plaintiff worked. The head of the research and development department, after reviewing the plaintiff’s performance reviews from 2013 and 2014, and based on her own knowledge and observations of plaintiff’s performance, including the difficulties plaintiff had with batch mixing, decided that plaintiff’s position would be eliminated. Plaintiff was notified on October 26, 2015.

The Seventh Circuit held that plaintiff failed to establish that her position would not have been eliminated and she would not have been terminated “but for” her disability, and that she failed to establish that defendant’s explanation for elimination of her position was pretext for disability discrimination.

Specifically the Court noted that, although plaintiff disputed the negative assessments of her performance, her supervisor’s belief that the performance was poor “was genuinely held.” Additionally, the record supported defendant’s contention that one co-worker was retained instead of plaintiff because plaintiff struggled with mixing batches of materials required for plaintiff’s department, while the co-worker could mix batches without need for detailed instructions and constant guidance.

Importantly, while plaintiff first disclosed the date of her hand condition close in time to the date of her termination, this “suspicious timing,” alone, did not defeat summary judgment where the need for cost cutting measures and position eliminations was being discussed prior to plaintiff’s disclosure.

Employer Takeaways

Document, document, document! Employers must remember to document performance deficiencies or mistakes. If employers need to justify a personnel action or if litigation ever arises, it will be important to have a contemporaneous record of performance issues.

Those with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the Labor & Employee Relations or Workplace Policies and Handbooks teams.