11th Circuit Upholds Summary Judgment in Favor of Employer in ADA Case
Recently, the 11th Circuit reviewed the American with Disabilities Act in the case of Cunningham v. Nature's Earth Pellets, LLC. Special thanks to Kelli Robinson, an associate with Sirote for this summary. Kimberly Cunningham appealed a summary judgment in favor of her former employer, Nature's Earth Pellets, and against her complaint of discrimination in violation of the Americans with Disabilities Act (ADA). Cunningham argued that Nature's Earth pellets wrongfully terminated her and regarded her as disabled based on her addiction to prescription drugs. After considering the evidence, the Eleventh Circuit of the United States Court of Appeals affirmed summary judgment in favor of the employer. Practice Pointer. The Cunningham decision shows the importance of documenting problem employees. Because there was a clear record of excessive absenteeism and progressive discipline, the Court was able to decide that there was no pretext in the decision to terminate Cunningham. Social Media impacts job applicants. The New York Times published an article entitled "Social Media History Becomes a New Job Hurdle" examining the use of social media searches as a background check. Social Intelligence, a year old company, performs internet searches that go back 7 years to look for conduct that may disqualify an applicant for the job. Several instances of what I call stupid conduct are cited, including a women on Craigs List looking for Oxycontin, a woman posting nude pictures on an image-sharing site, instances of people making racist remarks, anti-Semitic remarks, and evidence of violent activity. Interestingly, less than a third of the information found comes from social networking platforms like Facebook, Twitter and MySpace. Rather, much of the negative information comes from blogs, user groups and other sharing sites. Photographs and videotapes seem to cause the most trouble. Practice pointer. It is important that you control, the best you can, what you put up on the internet. It is also important to monitor what other people post about you, whether it be in pictures, videos, or comments.
The ADA provides that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual" in any of the "terms, conditions, or privileges of employment." To establish a prima facie case of employment discrimination under the ADA, a plaintiff must prove that she has a "physical or mental impairment that substantially limits one or more [of her] major life activities" or is "regarded as having such an impairment." Cunningham failed to establish a prima facie case of discrimination based on either an actual or perceived disability.
Cunningham argued that her addiction to anti-depressant medications prevented her from resolving other mental disorders, caused her to suffer about ten panic attacks a month, and interfered with her ability to breathe, concentrate, interact with others, and care for herself; but, Cunningham failed to establish that any of these impairments were or were regarded as substantially limiting. Cunningham testified that she was able to breathe and get ready for work; she performed regularly the tasks of a shipping clerk, which required her to monitor the supply of company products and coordinate deliveries of those products; and, she exercised sufficient independence of thought and concentration to withdraw from a rehabilitation facility against the advice of her physicians.
Even if Cunningham had established a prima facie case of discrimination, she failed to prove that the legitimate reason proffered for her termination was pretextual. Nature's Earth Pellets introduced evidence that Cunningham had been terminated because of her extensive absenteeism and the number of final warnings that she had been given under the company's progressive discipline system. To establish pretext, Cunningham was required to provide that the "proffered reason was not the true reason for the employment decision ... either by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation was unworthy of credence." Despite Cunningham's argument that Nature's Earth Pellets had not considered terminating her for past infractions of its leave policy, the court did not find that the employer's decision to fire Cunningham this time lacked credence. The court agreed that, based on Cunningham's history of absenteeism, Nature's Earth Pellets legitimately terminated Cunningham and, therefore, the court affirmed the summary judgment in favor of the employer.
