By Mitchell Riese and Mitchel Wilson
In Sube v. City of Allentown, the Court denied the Defendant City’s motion for summary judgment and permitted the employee’s disability discrimination claims under the ADA to proceed to trial. As the City was aware of Sube’s injury and later terminated him soon after he sought to bring discrimination charges with the EEOC.
Anthony Sube worked as a patrol officer for Allentown in 2006 and later suffered an injury while on duty in 2008 that caused nerve damage to his right hand. Following the injury, the City assigned him light duty for six months. Sube returned to patrol duty in 2009. A year later, the Assistant Chief changed Sube’s shift hours as an accommodation, at Sube’s request.
Complications with the department began to arise when Sube took sick leave one day when he was unable to get to work because his driveway was blocked by a snow storm. Sube apparently could not clear the snow because of his injury, but he was later able to attend a mandatory hearing at City Hall. The Police Chief saw him there and became angry and glared at Sube. About six weeks after the hearing, Sube was transferred to another platoon. His new shift conflicted with a Worker’s Compensation hearing he had scheduled.
The Captain wrote Sube up for his sick day, while also requiring that Sube be under constant supervision with “his door open at all times.” At his Loudermill hearing for the sick day, the hearing panel, which included the defendant Chief, suspended Sube for three days. Sube then took two weeks off for stress and faced harassment from fellow officers when he returned. Sube’s attorney sent a letter to the Chief informing him of Sube’s intent to file charges of discrimination with the EEOC. Sube was terminated 11 days later. Sube then brought suit for disability discrimination and retaliation.
The City attempted to argue that Sube failed to request an accommodation, but the Court disagreed:
The averments in plaintiff’s Second Amended Complaint support the reasonable inference that (A) defendant City’s police department was aware of plaintiff’s right-hand nerve damage and joint problems; (B) plaintiff requested additional leave, a job transfer (within the Allentown Police Department, or to another department within the City), and a disability pension from the City; and (C) defendant City failed to engage plaintiff in a dialogue concerning the physical or medical basis for plaintiff’s requests and whether plaintiff’s limitations could be reasonably accommodated without creating a hardship on the City.
The Court also permitted Sube’s retaliation claims to go to trial, because a jury could reasonably conclude that Sube’s protected activity, seeking to file a discrimination claim with the EEOC, lead to his termination because they were within two weeks of each other.
This case illustrates an important issue that frequently arises in these types of situations, where the employer takes some adverse action against the employee soon after the employee has complained of discrimination. Thus, the employer will often set themselves up for a retaliation claim even if the employee may not have had an underlying discrimination claim that was very strong. A retaliation claim is not dependent upon whether or not the employee can prove the underlying discrimination claim; the employee need only have a good faith basis for believing that the employee was discriminated against.
