On September 18, 2017, the 7th Circuit affirmed an order of summary judgment in favor of an employer in a federal lawsuit filed under the Americans with Disabilities Act ("ADA") by a transportation worker, who alleged that he was terminated on the basis of his mental disability in violation of the ADA. Monroe v. Indiana Department of Transportation, et al., No. 16-1959 (7th Cir. 9/18/2017). The plaintiff worked for the Indiana Department of Transportation for over 21 years. One of his job duties was to clean up human remains after traffic fatalities. He also witnessed the death of a co-worker in a work-related accident; and he served in combat in the Gulf War. He was discharged from employment for allegedly creating a hostile and intimidating work environment based on the investigation of a complaint against him by a group of his subordinates, who alleged that he mistreated them. During the investigation, the plaintiff disclosed that he had recently been diagnosed with Post Traumatic Stress Disorder.
The ADA, as amended, provides that no covered entity shall discriminate against a qualified individual on the basis of disability in regard to...discharge of employees. To prove a claim under the ADA, a plaintiff must establish that: (1) he or she is disabled; (2) he or she is otherwise qualified to perform the essential functions of his or her job with or without reasonable accommodation; and (3) the adverse job action was caused by his or her disability. To satisfy the causation requirement for purposes of defeating a summary judgment motion, a plaintiff must show that a genuine issue of material fact exists with respect to whether his or her disability was the 'but for' reason for the adverse employment action. However, one of the changes to the ADA under the ADA Amendments Act was to change the language from prohibiting employers from discriminating "because of" a disability to prohibiting employers from discriminating "on the basis of" a disability. The 7th Circuit stated that, "...it is an open question whether the change from 'because of' to 'on the basis of' changes the 'but for' causation standard." This issue was not raised by the parties in this case so the 7th Circuit applied the 'but for' standard. Evidence to satisfy the causation standard includes suspicious timing, ambiguous statements or behavior toward other employees with disabilities, disparate treatment, and pretext. The 7th Circuit concluded that there was not sufficient evidence to create a genuine issue of material fact that the plaintiff's disability was the 'but for' cause of his discharge. He failed to establish that the employer's proffered legitimate nondiscriminatory reasons were pretext to hide discriminatory motives. He could not establish pretext by pointing to prior positive performance evaluations that preceded the investigation of the complaint against him. A minor misstatement in the employer's EEOC position statement or a disagreement between defense witnesses about an irrelevant detail were also insufficient to establish pretext, as was the fact that the decision-makers questioned the veracity of the plaintiff's statement that he had PTSD. The plaintiff also identified three non-disabled employees who he contended engaged in similar misconduct but were not discharged, in an effort to establish his ADA claim through evidence of disparate treatment. However, the 7th Circuit agreed with the district court that none of the three comparators was similarly situated to him and, therefore, they could not be used to create a genuine issue of material fact regarding whether his disability was the 'but for' cause of his termination. Two of the comparators were not "at will" employees at the time of their misconduct, and the misconduct of the third was less severe than that of the plaintiff. Thus, the district court properly granted the defendant-employer's motion for summary judgment. The significance of the 7th Circuit's opinion, though, is that it raises the issue, for future decision, of whether an ADA violation may be established in a mixed-motive case in light of the amendment to the ADA.