Close Timing Not Enough to Support Discrimination Claim
By Gregory W. McClune
Employers who propose to terminate an employee are often rightly concerned that the proximity of another event or protected activity may “insulate” the target employee from termination. However, as a recent federal court decision demonstrates, an employee’s claim will not always proceed merely because two events were close in time.
Walid El Sayed, a U.S. citizen of Egyptian descent, worked for Hilton Hotels. Apparently another hotel employee accused him of being a “terrorist Muslim Taliban,” and he lodged a complaint. About three weeks later, the hotel terminated him, giving as reasons the existence of omissions in his employment application. Mr. El Sayed filed a discrimination lawsuit asserting his termination was in retaliation for his filing a legitimate discrimination complaint. The trial court granted judgment to the hotel group, and he appealed. (Walid El Sayed v. Hilton Hotels Corporation et al.)
Because Mr. El Sayed could show that his discharge occurred within a few weeks of his complaint, there was a legal inference that these two events were connected. At this point, Hilton asserted that Mr. El Sayed’s omissions from his employment application were in violation of its policies and constituted legitimate non-discriminatory reasons for his discharge. Mr. El Sayed was unable to offer any evidence other than the close timing between the filing of his complaint and his discharge. Thus, the appeal court upheld the lower court’s decision on the basis that Mr. El Sayed had not met his burden of establishing that the discharge was retaliatory.
While this case is useful, an employer should always carefully scrutinize an employment decision that comes close on the heels of any protected conduct by the employee, and, indeed, consider seeking advice from legal counsel before acting. The more evidence —especially well documented evidence —that an employer has of violations of company policies or other business reasons for the termination, the less likely a court is to use mere close timing to allow a retaliation claim to proceed.
Psychotherapist-Patient Privilege Is Not Automatically Waived Under an ADA Claim
By John L. Litchfield
An employee’s mental state cannot always be explored in a lawsuit merely because the employee files a claim against the employer under the ADA. In Kronenberg v. Baker & McKenzie LLP, a law firm associate in Chicago brought suit against the firm after his employment was terminated upon his return from FMLA (http://www.dol.gov/whd/fmla/) leave taken for a chronic degenerative spinal disc disorder. The employee alleged his repeated requests for a reasonable accommodation were ignored by the law firm, that he was unlawfully discharged, and that he was retaliated against in violation of the ADA. In his complaint, the former associate alleged the firm deprived him of equal opportunities by failing to accommodate his disability and sought reinstatement with appropriate accommodations, back pay, punitive damages, and attorney’s fees and costs.
During the lawsuit, the firm sought the employee’s medical and psychological records and the names of physicians, psychiatrists, psychologists, mental health professionals, or personal or family counselors from whom he had sought treatment from 2000 onward. The employee objected to these requests on the grounds that they sought information that is protected by the psychotherapist-patient privilege. The firm then argued that the employee’s mental health care records were both relevant and discoverable since “proving a claim under the ADA requires [the employee] to show that he was capable of performing the essential functions of his job as a lawyer without regard to accommodation.” The firm further argued the psychotherapist-patient privilege was waived because his request for relief included back pay, reinstatement, and compensatory damages.
The court ruled an employee does not automatically waive the psychotherapist-patient privilege merely by asserting he has a physical disability, nor when the damages sought do not include emotional harm or distress. The court ruled that the psychotherapist-patient privilege would cease to exist in any ADA case if it accepted the employer’s argument that the firm should have access to the mental health records to determine his ability to perform the essential functions of a lawyer, with or without a reasonable accommodation. Because mental state was not placed at issue in the lawsuit, and the damages sought were not for emotional distress, there was no waiver of the privilege in this case.
On the flip side, however, the judge also was keen to point out that an employee, during suit, is faced with a choice of asserting the psychotherapist-patient privilege, and thereafter risk that non-expert testimony will be used at trial whereby a layman’s account of the employee’s mental state is asserted. In this situation, the employee cannot then put forth expert evidence of his sound mental state to rebut the layman’s testimony. That would be a return to the “sporting theory of justice.”
