The Cellular Connection, which sells Verizon products, did not violate the Americans with Disabilities Act when it terminated an employee who claimed his depression caused him to fall short on performance goals and miss work events, a federal district court in Ohio held Dec. 9.
The employee, a TCC regional manager, was responsible for selling equipment to the owner of nearly three dozen Verizon stores, according to court records in Pennell v. The Cellular Connection, LLC. He suffered from clinical depression, which intermittently caused him intense fatigue, uncontrollable sadness, sleep disturbances and excessive daytime sleepiness, court records said.
The employee allegedly first told his supervisor about his depression after he began weeping uncontrollably during a business meeting. A few years later, he was progressively disciplined for performance issues he alleged were brought on by his depression, according to the court.
First, three years after he allegedly told his supervisor about his depression, the supervisor issued him a corrective action for failing to submit store visit reports for a month. Three months after that, he received a final warning after he was a “no show” at several requisite events during a conference TCC was hosting.
Less than five weeks later, the employee overslept, missed a regularly scheduled 10 a.m. call with his team and didn’t answer his supervisor’s texts, according to the record. That afternoon, his supervisor and TCC’s HR director decided to fire him.
The employee sued TCC for violating the ADA and Ohio law by discriminating against him because of his depression and for failing to accommodate him.
The court granted summary judgment to TCC. It found TCC provided legitimate, nondiscriminatory reasons for terminating the employee — “repeated and well-documented performance and attendance deficiencies,” and he failed to show these reasons were a pretext for disability discrimination.
As for the failure-to-accommodate claim, the ruling addressed a sticky question: Must employers retroactively accommodate — effectively excusing — past misconduct of an employee with a disability? Generally, no, and specifically, not in this case, the court held.
The employee argued that TCC should have granted his requests for retroactively paid time off to cover his failure to submit the store visit reports and his absences at the conference. The court disagreed: “EEOC guidance and applicable Sixth Circuit precedent demonstrate that rescinding discipline is not a ‘reasonable accommodation’ under the ADA because the ‘timing of the request is crucial,’” the court said.
In other words, according to the guidance, “Since reasonable accommodation is always prospective, an employer is not required to excuse past misconduct even if it is the result of the individual’s disability,” the court noted.
Also, unlike in cases cited by the employee, TCC didn’t have a policy that provided for retroactive PTO, and he didn’t suggest TCC’s actions prevented him from requesting PTO in a timely manner, the court noted.
It also rejected the employee’s argument that TCC should have engaged in an interactive process to discuss accommodations before it fired him. “Framing the triggering condition for the duty to engage in the interactive process as [the plaintiff] does ignores the requirement, repeatedly explained by the Sixth Circuit … that the employee must actually make a ‘request for reasonable accommodations,’” the court said.
