Recently, the federal court in Oklahoma City denied an employer’s motion for summary judgment in an Americans with Disabilities Act case. That’s not unusual; it happens. What makes this case unusual is that the Judge did so finding the plaintiffs had presented “direct evidence” of discrimination. That is unusual. Generally, an employer moves for summary judgment under what we call the McDonnell-Douglas standard, which is a way the courts view the evidence because most of the cases involve circumstantial evidence. What happened in this case is worth reviewing, and the lesson is clear – employers must train decisionmakers about the law!

J. Folmar was the plant manager of a manufacturing facility (“the Plant”). He had remained in contact with some guys from high school, C. Dunsworth and S. Shelton, both veterans. Folmar knew they were both veterans. Folmar told them about some positions at the Plant. Dunsworth and then Shelton made application through a temp agency and were placed for work at the Plant. During orientation, they were asked about medication which might affect safety. They were also told to call in and speak to a supervisor or manager if they were going to be absent or late. At some point at work, Dunsworth informed the Plant’s safety rep that he had been prescribed a pain medication. The safety rep expressed some concern about it, but Dunsworth said he only took it at night because it made him drowsy.

Folmar was not either Dunsworth’s or Shelton’s immediate supervisor or manager. Nevertheless, on August 26, Dunsworth told Folmar he needed time off for a doctor’s appointment, and Folmar granted the request.

On August 29, Folmar learned that Dunsworth and Shelton had failed to show up for work at scheduled times without calling their respective supervisors or him. At that time, the safety rep told Folmar about Dunsworth’s prescribed pain medication.

Folmar was not pleased with these events. So, he took to texting Dunsworth and Shelton in a group text. These texts were entered into evidence and read:

Folmar: So I’m guessing u guys gave up on me or found something better? Hope everything works out for u guys

Shelton: I overslept, ur text woke me up

Folmar: Well I don’t think it’s gonna work out guys bc of the physical issues and needing to take pain meds for them. [The plant] is not a big fan of hiring people with physical disabilities. Sorry if I would have known about them before I would have said something to u guys

Shortly thereafter, Folmar emailed the staffing agency, stating this:

[Dunsworth] nor [Shelton] has shown or called today. That’s okay, figured something wasn’t going to go right always happens with people you know from your past. They also have some physical disabilities that they are taking pain meds for on [an] as needed basis and [the Plant] is not a fan of that nor am I. If I would have known this prior I would have never sent them or given them the offer. So in need of [position names].

Subsequently, Folmar discussed the situation with the company’s senior management, apparently “realized the import of his statements,” and then tried to recant them in texts to Dunsworth and Shelton – even offering them their jobs back. They declined.

Dunsworth and Shelton sued under the ADA, claiming they were discharged based upon perceived disabilities. In other words, that the employer perceived they had a disability and, for that reason, terminated their employment.

In this case, when the employer sought to have the case adjudicated in its favor without the necessity of a jury trial, the Court denied the employer’s motion. Instead, the Court found that Folmar’s text and email were “direct evidence” of discrimination. Folmar wrote to the staffing agency that the two men had “some physical disabilities.” He also wrote that he would not have hired them had he known and that he and the Plant are not “fans” of people with disabilities. Even though Folmar may not have been their direct supervisor, he was a supervisor and the Plant is now being held responsible for Folmar’s statements and their effect.

Lesson to be Learned. As that employer prepares for its jury trial, what lessons can you learn? The ADA is complicated – it always has been. It protects qualified individuals who have a disability, persons with a record of a disability, and persons who are perceived as having a disability. While you can take full week courses on the law, not everyone needs that level of intense study. However, you certainly should ensure your decisionmakers are given regular and adequate training tailored to their day-to-day work needs. It is not fair to expect your supervisors to know the law if they have not been trained, and you leave the company exposed if you are not training all the decisionmakers.

By Kristen L. Brightmire, kbrightmire@dsda.com