It’s easy to imagine a work situation where a company decides it
wants to fire a worker wrongfully – such as because of their gender,
age or nationality. Fortunately employment laws rightfully prohibit a
company from doing so. In legal terms, the concept of “pretext”
applies where a company comes up with an excuse for a negative employment
action, but the real reason is
A recent case from Maine provides a good example of pretext. In
Kelley v. Correctional Med. Servs. Inc., a nurse was fired for alleged insubordination. She asserted that the real
reason behind her termination was that she requested a job accommodation
under the American’s with Disabilities Act (ADA) due to a pelvic
Under the ADA, if you are a qualified individual with a disability your
employer is require to make an effort to reasonably accommodate your disability.
If, despite your disability, you are able to do your job, either with
no accommodation at all, or with a reasonable accommodation, your employer
must accommodate you. An accommodation can be something as simple as changing
your starting time a few minutes, giving you a telephone amplifier if
you’re hard of hearing, or changing your workspace if it exacerbates
your medical condition. If your employer refuses to accommodate you, in
most cases you can file an ADA discrimination charge. The ADA also prohibits
your employer from taking an adverse action against you because you are
disabled, because you have a record of a disability, or because it regards
you as disabled.
If you have questions about the ADA, reasonable accommodations, or pretext
– it’s important to speak with a dedicated Atlanta discrimination
attorney right away.
Here, the nurse – Kelley – suffered a significant pelvic injury
as the result of riding a horse. She shattered the right side of her pelvis,
requiring surgery and six weeks leave. While on leave, her supervisor
called he and told her that she would be fired if she didn’t work
full-time after her leave. She also got a similar email from human resources.
When Kelley did return to work, her doctor’s restrictions provided
that she should use crutches to move around, not use her hands for lifting,
bend and squat only on a limited basis, and lift, push, and pull objects
only when seated.
While at work, Kelley continued to experience leg and health problems.
Her supervisor refused to accommodate her without a doctor’s note
on a specific form and repeatedly suggested that Kelley misrepresented
the extent of her injuries. Further, a member of management told her that
her supervisor “wanted [her] gone.”
The troubles culminated when Kelley was assigned to the main prison clinic
where she would be responsible for responding to “code blues,”
or emergency calls, which might require her to quickly travel some distance
using her cane and to lift a stretcher. She asked a nurse working in the
infirmary to switch assignments, but the other nurse refused.
Kelley was subsequently fired for insubordination. The evidence revealed
numerous disagreements between Kelley and her supervisor regarding Kelley’s
need for accommodation. The court stated: “Taken together, this
circumstantial evidence could lead a jury to conclude that (the supervisor)
was repeatedly hostile to any accommodation of Kelley’s disability.”
Further, Kelley’s alleged insubordination could be seen as a “culmination”
of events, and “a reasonable fact finder could find that the supervisor’s
action against Kelley was ‘a disingenuous overreaction to justify
dismissal of an annoying employee who asserted [her] rights under the
ADA,’ rather than the firing of an insubordinate employee.”
This case serves as a victory for workers and a warning to employers. It
is not okay to make up “excuses” to shirk you duties pursuant
to the law. For more information about pretext or any other
employment law issue, please contact the experienced Atlanta employment discrimination
lawyers at Buckley Beal LLP for a
confidential case evaluation.