Court Finds Supervisor’s Comment Did Not Show Discriminatory Animus

A federal appellate court recently dismissed a lawsuit brought by a property accountant who claimed that she was not hired by a company because she had children with special needs. According to the court, the worker could not proceed with her discrimination claim under federal or state law because there was no direct evidence of association bias. Sarvak v. Urban Retail Properties, LLC, No. 12-4217, Sixth Circuit Court of Appeals (April 29, 2013).

Factual Background

Crystal Sarvak was employed by Developers Diversified Realty Corp. as a property accountant. Developers Diversified managed the Tri-County Mall in Cincinnati, Ohio. The mall’s General Manager was Michael Lyons.

Sarvak, who had children with special needs, made several requests for schedule changes and leave. Lyons approved all of these requests.

On September 3, 2009, Sarvak requested to take a later lunch hour and to reduce her hours to part-time. Lyons claimed that after he checked with his supervisor, he denied her part-time schedule request because “the position required full-time duties.” In early October, Lyons told Sarvak that the company “would help her with flex time,” but that the position would remain full time. Sarvak claimed, however, that Lyons never gave her a substantive response. She further alleged that Lyons said, “I honestly don’t see how you will be able to balance both, work and being a mom with special needs kids.”

In late 2009, the owner of the Tri- County Mall informed Developers Diversified that Urban Retail Properties, LLC would be taking over the management of the mall. Bryan Alper, Urban’s Senior Vice President of HR, contacted Lyons to discuss if there was anyone on the existing staff that would not fit into Urban’s system. Lyons expressed concern about Sarvak being a good fit because the companies used different accounting systems and Sarvak’s duties differed substantially from Urban’s onsite accountant’s responsibilities. Sarvak acknowledged that Urban used a different accounting program that she was not familiar with. Urban ultimately determined that Sarvak lacked the necessary experience and skills for its field-based accounting position and did not retain her.

Sarvak sued alleging discrimination on the basis of her association with her disabled children (among other claims). The trial judge dismissed the suit, and Sarvak appealed this decision to the Sixth Circuit Court of Appeals.

Legal Analysis

Sarvak argued that the trial judge erred in holding that she had not presented direct evidence of discrimination. In particular, Sarvak pointed to Lyons’ comment that he did not see how she would be able to balance work and being a mom of kids with special needs.

The court found that there was no discriminatory animus on the part of Lyons. In support of this finding, the court wrote: “Sarvak claims that Lyons knew that at least one of her children had a disability prior to her request for a part-time schedule, yet Lyons never expressed a concern about Sarvak’s ability to balance her responsibilities at work and at home previously. In fact, Lyons consistently gave her positive reviews and even promoted her.”

The Sixth Circuit also held that Urban presented a legitimate, non-discriminatory reason for not hiring Sarvak for the position (which she failed to rebut). According to the court, the company simply believed that Sarvak did not have the necessary experience and skills for its accounting position. Thus, the Sixth Circuit upheld the dismissal of her suit.

Practical Impact

According to Ellen Toth, a shareholder in Ogletree Deakins’ Cleveland office: “Adverse actions against employees and/or applicants should be handled on an individualized basis and evaluated without regard to their association with disabled relatives. Naturally, as evidenced in this case, the employer must ensure that it has a legitimate and non-discriminatory basis for any action(s) it takes.”