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Jury Awards $200K+ to Employee Claiming ADA Discrimination Based on "Association" with Disabled Son: A Cautionary Tale for All Employers

A recent federal case should serve as a stark reminder to employers that the Americans with Disabilities Act (ADA) not only protects applicants/employees from discrimination based on their own disabilities but also from discrimination based on their “association” with others who have disabilities. See Buffington v. PEC Management II, LLP, d/b/a Burger King, Civil Action No. 11-229 (W.D. Pa, 10/18/13).  The facts of the Buffington case are also instructive with respect to what not to do when terminating an individual’s employment.

“Association” Discrimination under the ADA

The “association” provision of the ADA (i.e., 42 U.S.C. §12112(b)(4)) prohibits employment discrimination against a person, whether or not he/she has a disability, because of his/her known relationship or association with a person with a known disability. This means that an employer is prohibited from making adverse employment decisions based on unfounded concerns about the known disability of a family member or anyone else with whom the applicant/employee has a relationship or association.

Facts of the Case

PEC employed Theresa Buffington as a manager of one of its 34 Burger King Restaurants operated in Western Pennsylvania.  Ms. Buffington, who was not herself disabled, had a 14-year-old son who had cancer.  While working for PEC, Buffington’s son was repeatedly in and out of remission.  During his relapses, Ms. Buffington missed a substantial amount of work to care for him.  Beyond attendance there were other performance issues which went either undocumented and/or not shared with Ms. Buffington. In fact, PEC’s management consistently rated her job performance as average or above average on her performance evaluations and gave her raises throughout her tenure with the Company.

However, one night in late 2010, Ms. Buffington was the only manager on duty when she ran out of a product called "funnel sticks" at her restaurant. She sent an off-duty crew member to obtain the product from another of PEC’s restaurants using his own vehicle.  This was against Company policy.   When PEC’s management learned of this breach, it terminated Ms. Buffington’s employment.

PEC explained the termination as follows: 

Theresa Buffington was terminated for violating the policy of allowing a non-management employee drive for company business.   Compounding the violation was the fact that the employee was a minor and had come to the restaurant as a guest using the drive-thru to purchase food. He was then asked to punch in and transport product. Ms. Buffington did not explore any other options that would have been acceptable and consistent with company policy.  Ms. Buffington admitted she knew it was not the correct procedure stating that she knew she should have called … her District Manager. 

During the termination meeting with Ms. Buffington, PEC’s District Manager stated that the rule violation of sending the off-duty employee to run an errand using his own vehicle “was the straw that broke the camel's back….”  There were also disputed allegations that he made other statements at the termination meeting such as: "We need someone whose head is there 100 percent;” "Now you can go spend all your time with your son;" and, "Please go spend some time with your son." 

Buffington then sued PEC claiming discrimination on the basis of her association with her disabled son.  PEC attempted to get the case dismissed stating that it had legitimate reasons for Ms. Buffington’s termination, i.e., her violation of the Company’s Use of Vehicle policy and other poor performance.  The Court rejected these claims noting that the Vehicle policy was not enforced consistently with respect to other managers in the past and “[Buffington] was never given a poor performance review, received pay raises, was never disciplined, and was a long-term employee of PEC.”  The Court ruled that a jury could find that the reason for Ms. Buffington’s termination was unlawful discrimination and not the reasons cited by PEC.

Jury Award

The case ultimately went to a jury who found in favor of Ms. Buffington and awarded her $115,000 in front pay, $70,000 in compensatory damages, and more than $48,000 in back pay.  A potential award of attorneys’ fees (of an undisclosed amount) is also pending.

HR-Related Lessons to be Learned

While the jury was clearly sympathetic to Ms. Buffington’s troubles, there were a number of common errors that PEC’s managers made in this case that may have affected its outcome.   These include: 

  • Rating an employee as “average” when perhaps his/her performance is unacceptable.  Too often managers are afraid to be totally honest in performance evaluations for fear of confrontation or for fear of appearing unkind especially in situations where the employee may be having difficulties at home.  Managers need to learn to be unflinchingly honest in their evaluations.  The evaluation is considered to be the “official word” of the employer with regard to an employee’s performance.  An employee with an “average” rating will be viewed by judges and juries as an employee who is meeting standards and performing at a satisfactory level.  Terminations of such employees are viewed with skepticism and suspicion which can, in turn, lead to outcomes similar to Buffington.

 

  • Too much conversation during termination meeting.  Often even well-meaning statements in a termination meeting can be misinterpreted as having discriminatory intent behind them.  In this case, there was a dispute about what was said (e.g., "We need someone whose head is there 100 percent”) and what was meant by those statements. Consider instead terminating by letter as an alternative to the face-to-face meeting.  You can choose your words carefully and avoid disputes about what may or may not have been said during the meeting.  If you must have a face-to-face meeting with the employee, have it carefully scripted and keep good notes about what is said by all parties in attendance.  The face-to-face meeting in Buffington led to questions about what PEC’s true motivation was in deciding to terminate Ms. Buffington. Do not give judges or juries an opportunity to misinterpret your motivation when terminating a worker’s employment. 

 

  • Lack of documentation.  In the Buffington case, the District Manager is alleged to have said that Ms. Buffington’s policy violation was the “final straw” but there were no other prior written warnings (at least none that were shared with Ms. Buffington) or poor performance evaluations to show that Ms. Buffington had been a “problem” employee.  State and federal agencies that enforce the anti-discrimination laws (as well as courts and juries) believe that if an employer has an employee with performance deficiencies there will be documentation to prove it.  From their perspective, it is suspicious if it does not exist.  Document all performance problems and share them with the employee to, again, avoid any misinterpretations of your actions. 

 

  • Inconsistent enforcement of company policies.  It was undisputed in the Buffington case that Ms. Buffington violated PEC’s policy on vehicle use.  But that was not the end of the inquiry for the Court or the jury.  They wanted to know if the policy had been consistently enforced in the past.  When they found that other managers had violated the policy and had not been terminated, they concluded that Ms. Buffington was singled out for unfair treatment.  Remember that if you are selective with the enforcement of a policy, you cannot expect to convince a judge or jury that the policy violation is the true reason why you terminated a worker’s employment.

If you have any questions with respect to the foregoing, please feel free to contact us.