If I've said it once, I've said it 1000 times...DOCUMENT, DOCUMENT, DOCUMENT! Getting caught in the “he said, she said situation” when confronted with a charge of discrimination, despite good intention, can be problematic. Demonstrating that important employment decisions aren't ADA subterfuge, can be better assessed through your ongoing paper trail that shows good faith efforts to reasonable accommodate someone with a disability.
An Information Technologist at Cornell is suing the University for $1 million for violating the ADA in a way that he says brought him “severe emotional pain and suffering, mental anguish, humiliation [and a] loss of enjoyment of life.”
Mr. Zavala, 51, has worked at the University since 1993. In his lawsuit, he alleges that he was ..."criticized by his supervisors for attending medical appointments, was asked to obtain an excessive number of medical clearances to return to work, and was deprived of the vehicle and tools needed for his job.”
Experiencing complications from diabetes since 1989, Mr. Zavala says he’s been able to do his job. But, when he was diagnosed with early kidney failure in October 2009 and his foot began to swell (among other symptoms), he felt the University began discriminating against him when his supervisor and newly-hired associate director unfairly withdrew some of his responsibilities and assignments, basing their decisions to do so on his disability rather than his job performance. He felt that his 2009 performance evaluation was unfair and didn't accurately describe his actual performance.
“My record was great; I never had anything bad put on my record the whole time I’m here. Then, all of a sudden, they start worrying about my foot,” he said. “They [started] saying, ‘Well, you’re missing too many days going to the doctor,’ and that shouldn't be put on [my] job performance evaluation.” Zavala also alleges that the University switched his job positions in a way that was unfair.
In October 2010, Zavala was issued a doctor’s order indicating he couldn't climb ladders, and the University transferred him from the BLS (Bureau of Labor Statistics) back to the CFS (Computing Facilities Support)— a move that Zavala said was a demotion.
“I didn't get any money taken away from me, but you work so hard, you go to school, you learn different skills, and now you get thrown back into doing something that somebody that is entry-level would basically do,” he said.
Allegedly, Cornell later made an offer to Zavala to rejoin the BLS...but, the two parties, differ on their interpretations of the offer. While the University claims in the lawsuit that Zavala rejected its offer, Zavala said that his meeting with a University official to discuss the offer was “a setup.” The offer, he said, did not give him the opportunity to truly return to his previous position — forcing him to reject it and stay with the CFS.
The University feels they've accommodated his needs and its actions haven’t adversely affected his employment. The University asserts that the restrictions it placed on Zavala’s work, the medical clearances it asked Zavala to undergo and its evaluation of his job performance cannot be considered adverse actions.
As I follow this case, some of my main questions are these...
- Did the University engage in the interactive process (talk with Mr. Zavala) to explore needed workplace supports or rely solely on a doctor’s letter and then make decisions based on assumptions about his condition?
- Did the University document every meeting with Mr. Zavala in its attempt to provide reasonable workplace supports?
- Did the University document any workplace supports that weren't provided and its reason for denial?
I will watch this case and report the outcome if it’s available.
This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.