Why it matters

A jury should decide whether pre-accommodation job performance was considered by an employer when it terminated a worker at the end of her probationary period, a federal court in Wisconsin has ruled. A hearing-impaired employee, Elizabeth Erickson was subject to a one-year probationary period when she was first hired as a counselor. When her supervisor questioned keeping her around based on mixed evaluations, she brought up her hearing impairment as an explanation for some of her performance issues and made a formal request for accommodations. The supervisor later presented Erickson with a list of new performance concerns, but Erickson said they were based on pre-accommodation performance. She was terminated and filed suit under the Americans with Disabilities Act Amendments Act (ADAAA). Denying the employer’s summary judgment motion, the court said heavily disputed issues remained about whether Erickson’s pre-accommodation performance was considered in her termination and expressed concern that the plaintiff was given less than six weeks to improve her performance using the approved accommodations.

Detailed discussion

The Wisconsin Department of Workforce Development’s Division of Vocational Rehabilitation (DVR) assists persons with disabilities to obtain, maintain and advance in employment. Employees at the DVR operate as counselors to consumers, creating an individualized plan for each. A client of the DVR due to her hearing disability, Elizabeth Erickson’s counselor recommended that she apply for a position at the agency.

She did so, completing a “disability self-identification and accommodation survey” as part of the application for a project position, disclosing that she has had deafness in her right ear since early childhood. While she sometimes uses a hearing aid, Erickson said that in some circumstances it makes hearing more challenging and she removes it. She also noted on her application that she was seeking out the job on the recommendation of her “two hearing-disability counselors” at the DVR.

When her project position came to an end, Erickson applied for a permanent job. She was hired for a one-year “probation” period, with a review of her goals and accomplishments (GAR) scheduled every three months. At her first GAR, Erickson’s written evaluation indicated that she was meeting her goals with an exception for a low caseload.

Her six-month GAR was not much different but at the nine month review, Erickson’s supervisor expressed concern about her ability to become a counselor and let human resources know he was recommending that she not be hired on a permanent basis. Erickson disagreed with the review and at a subsequent meeting about her progress, told her supervisor for the first time that she had a hearing impairment and a disability certification on file.

The parties disputed what was said at the meeting, with Erickson claiming her supervisor stated it was “cheesy” to be bringing up her disability at this point. Erickson was then given a performance improvement plan that she refused to sign, arguing that it contained numerous errors. The plan gave Erickson a deadline to satisfy the requirements.

Erickson also filed a formal request for accommodations and provided a note from her doctor that she would benefit from having as much information as possible presented in a visual format. DVR granted Erickson’s request and began implementing the accommodations.

Approximately one month later, Erickson’s supervisor stated that she had new concerns with Erickson’s performance. Erickson objected, arguing that several of the critiques were based on her performance before the accommodations were in place. Erickson was then terminated and she sued, alleging violations of the Rehabilitation Act and the Americans with Disabilities Act Amendments Act (ADAAA).

Ruling on the DVR’s motion for summary judgment, U.S. District Court Judge William M. Conley found the case “turns on the subjective factual questions that are very much in dispute.”

“Here, Erickson had the educational background and certification required for [the position],” the court said. “Whether she was otherwise qualified to perform the job based on subjective characteristics, like organizational ability or sound judgment, cannot be determined in defendant’s favor on the record at summary judgment.”

While DVR argued that the evidence demonstrated that Erickson was terminated because of her poor attitude, deficient performance, and questionable professionalism—not her hearing disability—the plaintiff countered that the performance issues relied upon by the employer occurred pre-accommodation.

“Defendants’ consideration of her performance before reasonable accommodations were in place and only providing six weeks for the accommodations to be in place (even assuming those accommodations were adequate) before terminating her employment also provides a basis for a reasonable jury to find causation here,” the court wrote.

Judge Conley also kept alive Erickson’s failure to accommodate claim, noting that a reasonable jury might find DVR’s awareness of her disability dated back to 2010, when she self-identified on a form for her project position or even 2002, when she was a consumer of DVR services. “Given Erickson’s early disclosure of her disability, DVR arguably had an obligation to engage in an interactive process at the outset of her permanent employment … rather than waiting for Erickson to make a formal request for an accommodation a year later,” the court suggested.

Erickson did make a formal request for accommodations later during her time at DVR, the judge noted, but less than six weeks elapsed between her termination and when the accommodations were put in place. “A reasonable jury could find that defendants’ decision to terminate Erickson’s employment within a few weeks of establishing a possible accommodation constitutes an effective denial of her request for an accommodation.”

To read the opinion and order in Erickson v. Department of Workforce Development, click here.