By Reba Weiss and Brennen Johnson
In Sherman v. County of Suffolk, a U.S. District Court determined that a former correctional officer presented legitimate allegations that the County of Suffolk, New York, discriminated against him based on his disability. In his lawsuit, the former officer alleged that the County discriminated against him based on a leg injury he sustained during training as a recruit. The County then filed a motion for summary judgment, arguing that there was no evidence to prove that discrimination was the reason that the former officer lost his job. Although the County convinced the Court that no medical evidence could support an inference that the Officer actually suffered from a disability, the Court concluded that reliable evidence suggested that the County still perceived him as disabled and fired him because of that perception.
In January 2010, Steven Sherman received a job offer to become a correctional officer at Suffolk County detention and correctional facilities. The position required that he complete a thirteen-week training program at the Correction Officers Academy. During a physical training at the Academy, Sherman injured his leg in a manner that prevented him from completing the physical component of his training. Despite his inability to complete the physical requirements of the program, Sherman was allowed to graduate with his academy class and received an extension of a year to complete the physical training requirements.
Four days after his graduation, Sherman began his position at the County Correctional Facility. Several months later, he received an evaluation indicating that his performance was “minimally acceptable” and that he required remedial training and reevaluation in a number of areas. Although these reports indicated that Sherman’s work was below par, a sergeant with the facility later testified that the evaluations were inaccurate and designed to force Sherman to receive additional training. In late July, Sherman received a letter requesting that he complete the physical training requirements. In response, Sherman returned a physician’s note that he could not complete the training at that time. About two months later, Sherman discovered he would need surgery and informed the County. The next day, after arriving home from work, three officers approached Sherman and informed him that he was being terminated from his position.
After his termination, Sherman brought a lawsuit in federal court claiming that he was fired because of his disability in violation of Americans with Disabilities Act (ADA). In response, the County argued that Sherman could not show that his disability was the direct, or “but-for,” cause of his termination (“but-for” meaning that the County would not have terminated him but for the discrimination). The County further argued that Sherman’s termination was based upon his poor performance evaluations—a legitimate non-discriminatory reason for his termination.
The Court concluded that Sherman had presented sufficient evidence that a jury could reasonably conclude that discrimination was the “but-for” cause of his termination. In reaching this conclusion, the Court relied on the close proximity between Sherman’s notice to the County of his impending surgery and his termination and the lack of any other legitimate and temporally proximate reasons. Specifically, it noted:
[Sherman] has, in the Court’s view, set forth sufficient circumstantial evidence of discriminatory intent on the basis of the Plaintiff’s “disability.” Indeed, there is evidence in the record that the Plaintiff informed a supervisor that he needed surgery the day of or the day before his termination. Temporal proximity may be sufficient to show a prima facie case. Further buttressing an inference of discriminatory intent is [a lieutenant]’s testimony that, to his knowledge and personal observation, he had never seen the use of “minimally acceptable” scores on an evaluation used as a basis of termination for an employee.
Ultimately, although the Court concluded that there was insufficient medical evidence for Sherman to show that he suffered from a disability, it also determined that the County perceived Sherman as disabled and might have fired him for that reason. As such, it denied the County’s motion for summary judgment and allowed Sherman to proceed to trial with his lawsuit.
An employer may be liable for disability discrimination even where the employee is not truly disabled, but the employer “perceives” her as disabled. There are also differing standards of proof in disability discrimination cases. Some courts hold that the employee must prove that she would not have been terminated “but for” discrimination. Other courts follow the “burden-shifting analysis” where the employee must first establish a prima facie case, then the employer gets to rebut with evidence of a legitimate reason for the termination, after which the employee must establish that the reason given is a “mere pretext” for discrimination. The “but for” standard is the more stringent of the two standards.
