Fired Parks Employee Claims Retaliation in Violation of ADA

March 26, 2020, Department, by James C. Kozlowski, J.D., Ph.D.

2020 April Law Review Fired Parks Employee Claims Retaliation in Violation of ADA 410

In the case of Mullen v. Northampton Township, 2019 U.S. Dist. LEXIS 193630 (E.D Pa., 11/7/2019), the federal district court judge observed that this case demonstrated “no good deed goes unpunished.” The supposed “good deed” was plaintiff Robert Mullen driving a Township snowplow “to clear a drive-thru at a local McDonald’s and then to move the snow pile that he had created.” Shortly thereafter, the Township fired Mullen “for using Township property to benefit a private property owner.”

In response, Mullen claimed the alleged justification for his firing was a mere pretext and the real “discriminatory reasons” for the termination of his employment was an “act of retaliation” against him as an individual with a disability in violation of the Americans with Disabilities Act (ADA).

Facts of the Case
Mullen worked for Northampton Township, Pennsylvania, as a laborer in the Department of Parks and Recreation since May 2006. In this role, Mullen cut grass, performed various maintenance assignments and plowed snow in the winter, among other things. The Township did not have any written disciplinary records pertaining to Mullen. Over the years, Mullen suffered from ailments, such as vertigo, a hernia and a knee injury. Because the vertigo episodes tended to occur while he was driving at night, Mullen requested an accommodation to be excused from snowplow duties at nighttime. The Township granted this request in the 2016 and 2017 snow seasons and permitted Mullen to stop plowing once it got dark. With respect to the hernia, the Township provided help to Mullen and allowed him to return to work on light duty after he had corrective surgery in July 2016.

In March 2017, Mullen slipped on ice and injured his knee while working. He filed a formal work-injury report with the Township’s Human Resources department in May 2017 and sought treatment at that time. Because summer is a busy time of year for Mullen, work wise, he opted to have his knee surgery on August 3, 2017. The Township’s director of parks and recreation thanked Mullen for holding off on his knee surgery while it was busy. Following surgery, Mullen was out on medical leave for several weeks. He returned to work in November 2017.

On January 4, 2018, Mullen was caught using a Township plow truck to plow snow in a McDonald’s drive-thru during a snowstorm. The Township terminated Mullen on January 18, 2018. The Township explained that Mullen was being fired for plowing private property on January 4, 2018, though there was no formal policy prohibiting such conduct.

Mullen claimed the Township’s explanation was “pretext for discrimination and retaliation due to his disability and taking medical leave.” On July 25, 2018, Mullen filed a lawsuit against the Township for violations of the ADA.

After pretrial discovery of documents, sworn statements and deposition testimony, the Township moved for summary judgment on Mullen’s ADA claim. Summary judgment would effectively dismiss Mullen’s lawsuit without any trial proceedings.

A summary judgment in favor of the Township would only be granted, however, by the federal district court if the undisputed pretrial evidence shows “there is no genuine dispute as to any material fact” and Mullen had failed to demonstrate the required elements to establish his ADA claim.

ADA Discrimination
As cited by the federal district court, to establish a case of disability discrimination under the ADA, Mullen would have to allege and ultimately prove the following:

(1) he is a disabled person within the meaning of the ADA; (2) he is otherwise qualified to perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) he has suffered an otherwise adverse employment decision as a result of discrimination.

If the Township offered “a legitimate, non-discriminatory reason for the adverse employment decision — Mullen’s termination,” to maintain his ADA claim, the court noted: “Mullen must then come forward with evidence that the Township’s proffered explanation is pretextual.” According to the court, Mullen could demonstrate illegal pretext within the context of the ADA by producing evidence, which would reasonably indicate the following:

(1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.

The Township argued Mullen’s ADA claim should fail since he had not produced sufficient pretrial evidence to demonstrate the Township terminated him because of his disability. Moreover, the Township asserted the reason offered for Mullen’s termination was legitimate and not a mere pretext for discrimination on the basis of disability.

According to the court, to satisfy the required “causation element” for his ADA claim, Mullen would have to prove “the Township treated him differently based on his disability.” In so doing, the court would further require Mullen to demonstrate his disability “played a role in the Township’s decision-making process and that it had a determinative effect on the outcome of that process.”

In an attempt to show his disability was the true basis for the Township’s termination of his employment, Mullen pointed to the following facts:

(i) the temporal proximity of his termination, (ii) the lack of a formal policy against using a Township plow truck to plow on private property, (iii) the lack of a written disciplinary record, and (iv) a stray comment by a Township employee.

In the opinion of the federal district court: “None of these facts demonstrates that the Township fired Mullen because of his disability, especially when considered in light of the fact that the Township granted Mullen’s prior requests for disability-related accommodations.” In reaching this conclusion, the court further found the timing of Mullen’s termination was “not unusually suggestive of discriminatory intent.” Mullen claimed he did not return to work following his knee surgery until November 2017. The Township terminated his employment on January 18, 2018. In the opinion of the court, the “temporal proximity” of these facts was “not unduly suggestive” of a pretext for discrimination on the basis of disability because “more than two-and-a-half months had passed before Mullen was terminated after returning from knee surgery.”

In addition, the federal district court found Mullen had failed to “articulate how the Township’s lack of a formal policy against using a Township snowplow on private property raises an inference that the Township terminated Mullen based on his disability.” Moreover, in the opinion of the court, “the lack of a written disciplinary record for Mullen during his years of employment with the Township” did not suggest that the Township terminated his employment on the basis of disability in violation of the ADA. While the “lack of criticism of an employee’s performance and positive reviews can be relevant,” the court found such evidence would not necessarily suggest Mullen’s termination was on the basis of disability. Similarly, the court found “the fact that the Township’s director of parks and recreation thanked Mullen for holding-off on his knee surgery during the summer does not lead to an inference of discrimination.”

In his ADA claim, Mullen had argued the Township had become fearful of his injuries and extended time off and “used the snowplow incident as a pretext to terminate his employment.” The federal district court, however, found Mullen had produced “no evidence to support this assertion.” On the contrary, the court characterized Mullen’s claim as “pure conjecture” and “wholly insufficient” to support an alleged violation of the ADA. As noted by the court, “a plaintiff’s belief alone that he is a victim of discrimination is not enough to meet his burden of proof” under the ADA. Moreover, the court reiterated its finding that “the Township granted Mullen’s requested accommodations” over the course of his employment. Accordingly, the court determined Mullen was unable “to point to direct or circumstantial evidence of discrimination” by the Township based on his disability.

Pretext for Discrimination
Assuming Mullen had sufficiently alleged a case of discrimination, the court stated it would still conclude Mullen’s ADA claim should fail because the Township had “offered a legitimate, non-discriminatory reason” for terminating his employment, viz., Mullen’s “use of the Township’s snowplow to clear private property.”

To overcome this legitimate non-discriminatory given for the Township’s decision, according to the court, Mullen would have to “present evidence that the Township’s justification was pretextual.” In so doing, Mullen could not discredit the Township’s rationale for its action by simply claiming the Township’s decision was “wrong or mistaken.” According to the court, Mullen would have to show the Township’s decision was motivated by “discriminatory animus,” not whether “the employer is wise, shrewd, prudent, or competent.”

Within the context of the ADA, the court noted that an employer’s otherwise legitimate justification for its action would be considered “pretextual” if the plaintiff could “demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable fact finder could rationally find them unworthy of credence.” In this particular instance, Mullen had claimed “the Township’s proffered reason for the termination — his use of a Township plow truck to plow private property — was outlandish and a smokescreen” for discrimination on the basis of disability. The court rejected Mullen’s argument.

While characterizing the Township’s decision as “extremely harsh,” the court found “nothing implausible or incoherent about a municipal entity deciding to terminate an employee who uses the Township’s property to benefit a private property owner.” According to the court, Mullen had tried to argue that the Township’s decision to terminate him was “too grave of a disciplinary action” under the circumstances. The court, however, found “an employer’s decision that an incident is serious enough for a given disciplinary action” would not support an inference of pretext to discrimination on the basis of disability in violation of the ADA.

In addition to pretext, the court also considered Mullen’s claim that the Township’s decision was motivated by “retaliation” for his having taken medical leave. As cited by the court, Mullen would have to show the following to establish his claim of retaliation by the Township in violation of the ADA:

(1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employee’s protected activity; and (3) a causal connection between the employee’s protected activity and the employer’s adverse action.

To establish the required “causal connection” for retaliation, the court acknowledged: “a plaintiff usually must prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link.” In the absence of such proof, according to the court, a plaintiff could still demonstrate retaliation if “evidence gleaned from the record as a whole” would necessarily “infer causation.” According to the court, such evidence could include: “any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action.”

In this particular instance, the court found Mullen had failed to establish that his termination was in retaliation for him having taken medical leave. In so doing, the court once again found “the temporal proximity between Mullen’s medical leave to recover for knee surgery and his termination is not unduly suggestive.” Moreover, the court noted, “Mullen has not alleged a pattern of intervening antagonism by the Township.”

Having determined that Mullen had failed to “demonstrate the existence of essential elements of his various discrimination and retaliation claims” under the ADA, the federal district court held the Township was entitled to summary judgment, effectively dismissing Mullen’s lawsuit:

While one might find the Township’s action unforgiving, Mullen has not adduced evidence to demonstrate that it was illegal. The Township is therefore entitled to summary judgment.

 James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Sport, Recreation and Tourism at George Mason University. Webpage with link to law review articles archive (1982 to present).