Disability discrimination cases arising out of terminations of employment are now quite common. The United States Court of Appeals for the First Circuit regularly decides such cases. In September, 1996, the court decided in Jacques v. Clean-Up Group, Inc. that an employer had not failed to reasonably accommodate an employee admittedly disabled by epilepsy. In the Jacques case the employee quit and commenced a lawsuit because the employee thought no reasonable accommodation had been made. In Soileau v. Guilford of Maine, Inc., --F.3d-- (1st Cir. January 23, 1997), the court decided a case from the other end of the disability discrimination spectrum: a case involving an employee of disputed disability status who had requested and received a reasonable accommodation and was later terminated for poor performance. In Soileau the court held that the employee was not "disabled" and that the employee had not been terminated in retaliation for his reasonable accommodation request.

     1. The facts of the Soileau case. Mr. Soileau worked for Guilford as an analyst. Over a period of two years he had various problems with his immediate supervisor, which ultimately lead to his receiving a "Final Written Warning/Suspension" for poor performance and poor attitude in March, 1994. The warning identified the employee's problem areas and directed the employee to prepare and submit an improvement plan. At that time the company had no knowledge that the employee had or claimed to have any emotional problems. The employee reacted negatively to the Final Warning/Suspension, went to see a psychologist with whom he had treated for depression years earlier, and was diagnosed by the psychologist as suffering from depression again. In early April the employee told his supervisor that he was having trouble interacting with other people, and the employee asked to be relieved of his normal job duty of conducting certain employee meetings. The supervisor agreed to this request. The employee's doctor then wrote to the company and asked that the employee be allowed to avoid "significant interaction with other employees." In late April the supervisor terminated the employee because the employee had shown no improvement in four problem areas and had not submitted an improvement plan.

     2. The employee was not "disabled." The employee claimed that he was "disabled" within the meaning of the ADA because he had a mental impairment which substantially limited one or more of his major life activities. The employee claimed that he had been diagnosed by a psychologist as having "dysthymia" (chronic depression) which substantially impaired his "ability to get along with others." The court accepted that dysthymia is a mental impairment but ruled that the "ability to get along with others" is not a "major life activity" within the meaning of the ADA, and that even if the ability to get along with others were such a major life activity, the employee's impairment did not impose a "substantial limitation" on that ability; the impairment was only minor and temporary. The court's ruling here is noteworthy for two reasons. First, it came in the context of an affirmance of a grant of summary judgment against the employee, which means that in the court's view the employee did not even have enough evidence to obtain a trial on his claim. This is a strong rejection of the employee's claim. Second, the court rejected the EEOC's view, as expressed in the EEOC's Compliance Manual, that "interacting with others" is a major life activity. The court stated that the activity of "interacting with others" was too vague, and too different from acknowledged major life activities such as walking and breathing, to be considered a major life activity.

     3. The employee was not unlawfully discharged. The employee claimed that he was fired in retaliation for his request for a reasonable accommodation. In support of this claim, the employee pointed to the timing of his termination: on April 7 the employee asked for an accommodation, which was granted; on April 12 the employee's psychologist wrote to the company requesting an accommodation; on April 21 the employee and his supervisor met to discuss the doctor's letter; and on April 22 the employee was fired. The court ruled that the employee's "narrow focus" on timing "ignores the larger sequence of events and also the larger truth." The court noted that the employee was initially suspended and directed to submit an improvement plan before the company knew anything about his alleged disability, that the employee had never submitted an improvement plan, and that the employer had willingly granted the employee's accommodation request. The court held that this evidence was insufficient to support a retaliation claim. Again, the court's ruling here is noteworthy for two reasons. First, the court's ruling highlights the proper analysis of "timing" evidence, which is often the only evidence or the major evidence that claimants assert in retaliation cases. By showing that timing evidence of the type seen here is not necessarily enough to avoid a summary judgment, the Soileau case will be a great help to employers defending against retaliation claims. Second, the court used strong language in rejecting the employee's attempt to use his disability to avoid discipline for his poor performance. The court said: "A danger of the line of argument presented by [the employee] is that it would permit an employee already on notice of performance problems to seek shelter in a belated claim of disability. The ADA was not meant to prevent employers from taking steps to address poor performance by non-disabled employees. . . . To allow the antidiscrimination laws to be used by poorly performing employees will eventually work to the detriment of those who have a legitimate need for the protection of the laws."

     Conclusion. The Soileau case involved one of the most common, risky questions facing employers today: whether and how to discipline a possibly disabled employee for the employee's poor performance. The case teaches that an employer may fairly discipline a possibly disabled employee for poor performance. The case is also a good reminder that not every impairment is a disability, and not every disciplinary action taken against a disabled person is illegal.

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Dated: February, 2000