KingSpry How To Avoid Retaliation Claims Under ADA

Recent Pennsylvania Case Gives Helpful Hints on How to Avoid Retaliation Claims Under the ADA

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Posted on August 2nd, 2018
by Timothy E. Gilsbach

The case of Smith v. University of Scranton, provides some helpful hints for employers to avoid successful ADA employment retaliation claims.

Smith involved an employee of the University who was hired in 2007 and in 2012 requested workplace accommodations, which were provided.

About a year later, the employee applied and was hired for a different position in the University for which she received the same pay and benefits.  The employee contended that she sought out this other position due to the fact that she was harassed by another employee, her supervisor, and was seeking to get away from her supervisor.

About a year into the new role, the employee received a satisfactory evaluation, but the evaluation did note some areas for improvement.  However, over the course of the 2014-15 school year, the employee’s performance deteriorated.

Towards the end of that school year, the employee’s supervisor contacted his supervisor to see if the employee could be transferred to another position within the University, given the performance issues.  While the employee’s supervisor did not wish to terminate the employee, the supervisor’s supervisors move forward with terminating the employee based upon poor performance.  The employee sued alleging the termination was retaliation the request for accommodations, which was clearly a protected activity under the ADA.

However, the Court found that the employee did not have a case.

First, the Court outlined that the claim failed because the employee was unable to establish a case for retaliation through showing the timing of the termination was unusually suggestive of retaliation, that there was a pattern of antagonism, or that there was any circumstantial evidence of the termination being a result of the protected activity of asking for accommodations.

In Smith, given the 33 month gap between when the employee asked for accommodations and when she was terminated, the Court found that there was no showing that the timing of the termination was related to the protected activity.  The Court further found that not only was there not a pattern of antagonism, the University accommodated the employee and when the employee sought to change positions within the University, this was permitted.

The Smith case shows that when addressing accommodation requests, there are some steps that can be taken that will put the employer in a much better position to defend against any retaliation claims.

The employer should document its response to the request.  In addition, it should create a prudent paper trail to show that any employment change is related to issues other than the accommodation request, in this case the employee’s poor performance.  Finally, this action should not be taken within close proximity to the request by the employee for accommodations.




The Eastern Pennsylvania Employment Log (EPELog) is a publication of the KingSpry Employment Law Practice GroupJeffrey T. Tucker, Esquire, is our editor-in-chief. EPELog is meant to be informational and does not constitute legal advice.