Are Threats Enough for an ADA Retaliation Claim?
Last week I reviewed that an individual must be qualified in order to assert an ADA claim. The term qualified means that she is able to work with or without a reasonable accommodation. If an assertion is made in other litigation or ministry of matters, such as the Social Security proceeding that the person is disabled, then an explanation is necessary or the claim is due to be dismissed. The case that recently discussed that was Williams-Evans v. Advance Auto Parts, 843 Fed. Appx. 144 (11th Cir. 2021). That same case also discussed what was necessary in order to assert a retaliation claim under the ADA.
Ms. Williams-Evans injured her back at work when picking up the car battery. She was on Worker's Compensation leave for a while, and then made a return to work, on restricted duty. She began to miss work at times and one employee told her she might get fired if she kept missing work. A manager also noted that she would be terminated if she did not show up for work. Ms. Williams-Evans alleged that this was retaliation and that it also created a hostile work environment for her, as this was material adversity.
The 11th Circuit, however, said that for a retaliation claim under the ADA, a threat of termination alone is not materially adverse. There must be some action taken, rather than the threat of action. Ms. Williams-Evans also contended that these threats of termination created a hostile work environment for her. The court disagreed on that as well. The two termination threats were balanced by the court against text messages from other coworkers, who were sympathetic to her and encouraged her to recuperate before returning to work. Further, Ms. Williams-Evans also admitted “that no one at Advance made derogatory or offensive comments about herself or others with disabilities.” Thus, the two termination threats juxtaposed against all the positive text messages and the lack of any derogatory comment about the claimant or her disability, did not create a hostile environment.
The term qualified means that she is able to work with or without a reasonable accommodation. If an assertion is made in other litigation or ministry of matters, such as the Social Security proceeding that the person is disabled, then an explanation is necessary or the claim is due to be dismissed.