The employee worked at a carwash, one of several owned by the employer. The facility was not air conditioned. The employee had a heart condition and the employer was aware of it. The employee presented the employer with a doctor's note stating “Due to cardiomyopathy he should avoid heat of day due to risk of dehydration.” Without seeking any further clarification, the employer assumed the note to mean the employee could not perform his job during any heat that may exist at any point during the day." The employer terminated the employee from employment the day it received the note.
The the employer's letter to the employee reads in part:
I take health issues seriously, particularly heart related issues. Since I now have a doctor’s note in my possession, liability for your heart issue is now passed along to me. If you got overheated while working at Champion Car Wash, and it caused further damage or injury to your heart, I would be liable and open to a lawsuit.Frankly, I do not have any jobs available that would preclude you from working in the heat of the day. In the summertime, as recently demonstrated, temperatures can easily reach 90+ degrees as early as 9-10 am and last until late in the evening. Those words from your doctor “he should avoid the heat of the day . . .” prevent you from performing your job duties during any heat that may exist at any point during the day. For personal and legal reasons, I must take your doctor’s note seriously.Since you cannot perform your job duties as needed, I am going to have to release you, for medical reasons, from employment at Champion Car Wash
In response to the employee's claim for unemployment the employer wrote the employee. . . .
“was released because of a medical condition,” and to avoid a lawsuit.The district court concluded the termination letter was direct evidence of discrimination, and further opined the statement to unemployment "might be" as well. The court also noted the employer's complete failure to engage in an interactive process to determine if a reasonable accommodation was available. There was an opening on a morning shift (arguably a cooler time of day) at another of the employer's car washes which had air conditioning. There are several other aspects of the case that provide food for thought (including the court's diminishment of the "same actor" defense the employer urged.
We have long urged employers to be cautious in any articulation of the reasons for an adverse employment action. Often little thought is given before direct evidence of the employers subjective motivation is put on paper (or electronically communicated). For employees seeking to second guess their employers, this is a gift, one that can keep on giving right up to a judgment in the employees favor.
We also believe not engaging an employee in an interactive dialogue concerning any alleged disability, and possible accommodations is a strategy that creates significant risk. Patience is a virtue. In this case the employer argued the employee failed to move his chair out of the sun during the "heat of the day"
and that he had been warned about the issue. The court discounted that position as a basis for termination, due to it being inconsistent with the contradictory direct evidence. If the employer were truly motivated by the "misconduct" alleged, another warning or two and a termination memo saying that was the real reason for the employer's action would have been a better strategy.
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