By Nolan R. Theurer and Andrew M. McNaught
Seyfarth Synopsis: On August 18, 2020, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment on a plaintiff’s associational disability discrimination and retaliation claims, finding the plaintiff failed to support his allegations with sufficient evidence. The decision prevents plaintiffs with associational discrimination claims from relying on unsupported allegations of “distraction” to explain their poor performance, and reinforces a plaintiff’s obligation to present evidence establishing adverse employment actions in support of their discrimination and retaliation claims..
Plaintiff/Appellant Frank Pierri (Pierri) began working as a chemist for Defendant/Appellee Medline Industries, Inc. (Medline), in 2011. In his first four years Pierri performed well and advanced his position in the company. In 2015, Pierri’s grandfather fell ill with cancer, resulting in Pierri’s request to his supervisor to modify his schedule to four ten-hour shifts per week to care for Pierri’s grandfather. After six months of Pierri working the modified schedule, his supervisor ordered him to return to his normal schedule as a result of poor work performance. Pierri argued he needed at least one week-day off per week in order to care for his grandfather, and his supervisor offered him a modified Tuesday-Saturday schedule in order to accommodate Pierri’s needs. Pierri declined the accommodation because he wanted to attend school on Saturdays, and reported the dispute to Human Resources. As a result, Pierri applied for and received leave under the Family Medical Leave Act (FMLA), permitting him one day of leave per week to care for his grandfather.
According to Pierri, his supervisor began a pattern of harassment when he began his alternate schedule. His supervisor began belittling and micromanaging Pierri’s work, and refused to assign him research and development projects, on which Pierri’s bonus primarily depended. As a result of stress and anxiety from the alleged harassment, Pierri sought and received full-time FMLA leave on March 30, 2016. Pierri also filed an EEOC charge, alleging that Medline discriminated against him based on his grandfather’s disability, and retaliated against him for reporting the alleged harassment to Human Resources.
After allowing Pierri to remain on FMLA leave for nearly one year, Medline contacted his attorney on March 28, 2017 to find out whether Pierri planned on returning. Medline warned that if it did not hear from Pierri by the end of the week, he would lose his job. Pierri did not contact the company, and Medline terminated his employment.
On September 27, 2017, Pierri received a right-to-sue letter from the EEOC, and subsequently filed his complaint in the Northern District of Illinois. Pierri alleged two claims in his complaint: (1) that Medline had discriminated against him in violation of the Americans with Disabilities Act (ADA) for his association with his ill grandfather; and (2) that his supervisor retaliated against him for complaining to Human Resources and filing a charge with the EEOC.
The District Court granted summary judgment to Medline on both claims, and the Seventh Circuit affirmed. According the Seventh Circuit, Pierri failed to establish a prima facie case of associational discrimination. Citing Larimer v. Int’l Bus. Mach. Corp., 370 F.3d 698 (7th Cir. 2004), the Court identified three situations in which a plaintiff may bring a claim of associational discrimination: (1) the “expense” variant, where an employee’s relative has an expensive disability which is covered under the employer’s plan; (2) “disability by association,” where an employer fears that an employee may have become infected with a disease because of the known disease of an associate of the employee; and (3) “distraction,” where an employee’s family member’s disability causes him to become inattentive to his own work.
Pierri cited the “distraction” prong, and argued that the “distraction” caused his poor work performance. But he failed to produce any evidence in support of that assertion.. Pierri did not present any evidence that he was distracted, that Medline regarded him as distracted, or that Medline took any action against him due to his distractedness. Indeed, Pierri failed to produce any evidence at all to support any theory of associational discrimination. The record instead demonstrated that Medline made sincere efforts to accommodate Pierri’s need to care for his grandfather, permitting him first to adjust his work schedule, and asking him to return to his former schedule after it became clear that his work performance had deteriorated. At that point, Medline offered a Tuesday-Sunday schedule to accommodate Pierri’s needs, but Pierri declined for a reason unrelated to his grandfather’s disability (his desire to go to school on Saturdays).
Even more damaging to Pierri’s claim of associational discrimination, he never demonstrated that any adverse employment action occurred. Pierri’s supervisor general rudeness and attitude towards Pierri do not constitute an adverse employment action, nor did Pierri’s subsequent “average” rating on his performance review. Further, any reduction in Pierri’s bonus occurred primarily as a result of Pierri’s decision to stop working and take long-term FMLA leave. Finally, a simple shift in the balance of job responsibilities, where plaintiff remained at the same position, and performed tasks which had always been a part of his job, did not constitute the “wholesale change of duties” reflecting a de facto demotion for purposes of the ADA.
The apparent lack of any adverse employment action was also fatal to Pierri’s retaliation claim. The critical point in a retaliation claim is to “offer evidence that would allow the factfinder to conclude that the employer took the adverse action because of the protected activity.” After Pierri had already taken a full year of FMLA leave, Medline informed him that it would fire him if he did not provide notice of his intent to return to work within two weeks, and Pierri never responded. The only reasonable conclusion is that it was Pierri’s failure to respond, not retaliation by Medline, that led to his termination.
This case presents several key takeaways. First, the holding demonstrates the critical importance of supporting arguments with sufficient evidence. Specifically, a plaintiff cannot sustain a claim for associational discrimination under the ADA based solely on his allegation that his poor work performance resulted from “distraction” due to his need to care for a disabled family member. Such allegations must be supported by evidence sufficient for the court to determine that the poor work performance was indeed caused by the alleged distraction. Employers should also take special note of the Seventh Circuit’s assertion that the three situations described in Latimer are not meant to be exhaustive of the potential justifications for an associational discrimination claim. Employers should be prepared to defend against any well-supported allegations of associational discrimination, even if those allegations do not fall into the categories recognized by Latimer.
With respect to Plaintiff’s retaliation claim the case reinforces that employers can protect their lawful employment decisions through good documentation. Where employers thoroughly and appropriately document their legitimate, non-retaliatory reasons supporting employment decisions, they have a stronger chance of successfully defending those decisions in litigation.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Counseling & Solutions Team or the Workplace Policies and Handbooks Team.