Deficient performance dooms discrimination claims

Where an employee alleged that he was terminated because of his race and disability, but the record showed that he was not meeting his employer’s legitimate expectations for several months, the employer prevailed on the discrimination claims.

Background

Johnny W. Pope II filed a complaint against Western Tidewater Community Services Board, asserting claims for (1) discrimination in violation of the

Americans with Disabilities Act, or ADA; (2) retaliation in violation of the ADA; (3) discrimination in violation of Title VII and (4) retaliation in violation of

Title VII. Western Tidewater has now filed a motion for summary judgment.

ADA discrimination

Plaintiff alleges that defendant terminated his employment and altered the terms and conditions of his employment because of his disability. To establish a prima facie case of wrongful discharge under the ADA, a plaintiff must demonstrate: “(1) he is within the ADA’s protected class; (2) he was discharged; (3) at the time of discharge, he was performing the job at a level that met his employer’s legitimate expectations; and (4) his discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination.”

The court finds that by failing to attend his job for almost six months, plaintiff could not perform any of his job functions and is therefore not a qualified individual. Even if plaintiff were a qualified individual, the court finds that he was nonetheless not meeting his employer’s legitimate expectations. Moreover, plaintiff has failed to raise any circumstances whatsoever that raise a reasonable inference of unlawful discrimination. Finally, even if plaintiff had established a prima facie case, the court would nonetheless dismiss this claim because plaintiff neglects his burden of establishing pretext.

To establish a claim for disability discrimination in altering the terms and conditions of employment under the ADA, a plaintiff must prove: (1) he has a disability; (2) he is a “qualified individual” for the employment in question and (3) his employer took an adverse employment action against him because of his disability. The court finds that plaintiff is not a qualified individual for the same reasons previously stated with regard to his wrongful discharge claim. Even assuming that plaintiff is a qualified individual, plaintiff nonetheless fails to establish the third prong.

ADA retaliation

To establish a prima facie retaliation claim under the ADA, a plaintiff must prove: (1) he “engaged in protected conduct”; (2) he “suffered an adverse action” and (3) “that a causal link exists between the protected conduct and the adverse action.” The court finds that plaintiff did not engage in protected activity. While he forwarded various emails to HR, without providing any reason whatsoever as to why he forwarded his email correspondence to HR, the court finds that the context in which plaintiff communicated his complaint could not reasonably have led defendant to understand its nature. Even if this were protected activity, moreover, plaintiff has failed to establish any causal connection between these emails and his discharge.

Title VII discrimination

To establish a prima facie case of Title VII discrimination, a plaintiff must prove: “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” As previously discussed, the court finds that plaintiff failed to adequately perform his job for at least one year prior to his termination. Plaintiff’s inability to prove satisfactory job performance renders his claim meritless across the board.

Further, even assuming for the sake of argument that all of defendant’s challenged decisions within this claim are adverse employment actions, plaintiff is unable to establish that he received “different treatment from similarly situated employees outside the protected class.” Finally, even if plaintiff could establish a prima facie case, he abandons his burden of establishing pretext in response to defendant’s proffered legitimate and nondiscriminatory reasons.

Title VII retaliation

Plaintiff relies entirely on his argument with respect to his ADA retaliation claim to support his Title VII retaliation claim. His Title VII claim, in turn, fails for the same reasons as his ADA claim.

Defendant’s motion for summary judgment granted.

Pope v. Western Tidewater Community Services Board, Case No. 2:21-cv-449, Aug. 8, 2022. EDVA at Norfolk (Jackson). VLW 022-3-343. 40 pp.