Earlier this month, the Sixth Circuit rejected an ADA associational claim brought by a terminated manager. Stansberry v. Air Wisconsin Airlines Corporation, No. 09-2499 (6th Cir. 7/6/11). In that case, the plaintiff alleged that he had been terminated on account of his wife being disabled. However, the Court agreed that summary judgment for the employer was appropriate because the plaintiff had not shown any causal link between his termination and his wife's disability. There was no evidence showing that the employer was influenced by her medical expenses, by fear of contagion or his potential distraction. Therefore, the Court need not reach the issue of pretext created by evidence that the employer lied about why the plaintiff had been fired.
The plaintiff was a long-time employee with years of successful performance evaluations. His wife had been ill for a number of years with a serious autoimmune disease (which was not contagious). In Spring 2007, her condition worsened, but the employer's health plan announced that it was refusing to pay for the recommended treatment after July. The plaintiff began appealing that decision. In the meantime, the number of employees for which he was responsible to supervise doubled and the new employees made a number of significant mistakes. In addition, the plaintiff was not getting along well with his immediate supervisor, the regional manager, and he had threatened to resign in June. After the TSA notified the employer in June about several security violations by the new employees (which the plaintiff had failed to report to the regional manager), the employer promised the TSA that disciplinary action would be taken. A termination letter was prepared in advance, but the regional manager says that he had not yet made up his mind whether to fire the plaintiff. Nonetheless, while meeting with the plaintiff near the end of July, the decision was made to fire him. The employer later said it was because of the security violations, failure to adequately supervise, and failure to stay on budget, but the letter only mentioned the security issues. The plaintiff contended that there had been no prior requirement to inform HQ about security breaches – which the employer disputed – but a letter was sent to all supervisors earlier in July explaining this policy after the plaintiff raised the issue.
The plaintiff brought suit for violation of the ADA provision which prohibits discrimination against an individual on account of his or her relationship with a person with a disability. Under this theory, the employer can be liable for discriminating against an employee, but it is not required to provide any reasonable accommodation to the employee on account of the other person's disability. The Sixth Circuit noted that there are three primary theories under this ADA section:
(1) "expense"; (2) "disability by association"; and (3) "distraction." The "expense" theory covers situations where an employee suffers an adverse employment action because of his or her association with a disabled individual covered under the employer's health plan, which is costly to the employer. The "disability by association" theory encompasses two related situations. Either the employer fears that the employee may contract the disability of the person he or she is associated with (for example the employee's partner is infected with HIV and the employer fears the employee may become infected), or the employee is genetically predisposed to develop a disability that his or her relatives have. The "distraction" theory is based on the employee's being somewhat inattentive at work because of the disability of someone with whom he or she is associated.
Surprisingly, the plaintiff did not pursue the expense theory. He also could not prove "disability by association" because the employer had known about the wife's condition for more than a decade. Although he tried to pursue the "distraction" theory, that was not possible in light of the uncontested evidence that the regional manager had been dissatisfied with his performance. The plaintiff had been required to show that "the adverse employment action occurred under a circumstance that raises a reasonable inference that the disability of the relative was a determining factor in the decision." On the contrary, there was no evidence to "suggest that his discharge was based on any unfounded fears that his wife's illness might cause him to be inattentive or distracted in the future." The Court rejected the argument that the employer was concerned that he would become more distracted since his wife's condition had recently worsened because the employer had known about her condition for more than a decade and not fired him.
The Court noted that even if the plaintiff had met his prima facie case, the employer stated a legitimate and non-discriminatory reason for firing him on account of his poor performance. However, the Court then seemed to back track on that. The plaintiff asserted that he could prove the employer's explanation was pretextual because the regional manager lied about the reason for firing him. Conceding that this evidence would generally be enough to establish pretext, the Court then concluded that proving pretext in this case was irrelevant since the plaintiff failed to prove a prima facie case.
A plaintiff cannot bypass the prima facie showing requirement and must offer some evidence to suggest that the adverse employment action he or she suffered was due in some measure to discriminatory animus before the employer is required to articulate a non-discriminatory reason for the action. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48 (2000) (explaining that "a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated"). Therefore, even if Mulder had lied about the reason for terminating Stansberry, that does not show that Air Wisconsin terminated Stansberry on account of his wife's disability because Stansberry has offered no evidence to create an inference that he was fired on account of his wife's disability.
Finally, the Court noted that if the plaintiff's poor performance was caused by the distraction from his wife's illness, he still had no remedy under the ADA.
Importantly, while [the plaintiff's] poor performance at work was likely due to his wife's illness, that is irrelevant under this provision of the Act. [The plaintiff] was not entitled to a reasonable accommodation on account of his wife's disability. Cf., e.g., Larimer, 370 F.3d at 700. Therefore, because his discharge was based on actually performing his job unsatisfactorily, and not fears that his wife's disability might prevent him from performing adequately, Air Wisconsin's conduct is not prohibited by this section of the Act. While [the plaintiff's] situation is very unfortunate, he has not offered anything to show that his wife's disability was in any way connected to Air Wisconsin's decision to discharge him. The only connection is that it possibly caused his performance to slip. Therefore, Air Wisconsin's decision to terminate [him] does not run afoul of the Act.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
