Custodian fails to show supervisors' comments qualify as adverse action

In Kansas, successful employment discrimination claims require evidence of an adverse action by the employer that is connected to the employee's protected status.

Case name: Lara v. Unified Sch. Dist. #501, No. 08-3320 (10th Cir. 10/22/09, unpublished).

Ruling: In an unpublished decision, the 10th U.S. Circuit Court of Appeals affirmed summary judgment for a school district in a former employee's Americans with Disabilities Act and state workers' compensation law suit.

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What it means: In Kansas, to prevent dismissal of a claim, a worker must comply with the mandatory time provisions of the workers' compensation laws when filing a claim. Also, successful employment discrimination claims require evidence of an adverse action by the employer that is connected to the employee's protected status. Sporadic comments by supervisors suggesting an employee retire or noting that the employee has increased the company's costs do not rise to the level of adverse action.

Summary: A school custodian/building operator developed increasing health problems as he grew older. He had a hernia from lifting equipment at work, had a ruptured aneurysm, and had a heart attack requiring cardiac surgery. Although he wanted to wait until age 61 to retire, the custodian retired at age 60, claiming he was forced into retirement by his supervisors. The custodian sued under the ADA and state workers' compensation law. The 10th Circuit affirmed summary judgment for the school district. The court held that the custodian violated Kansas laws and rules of procedure by waiting only one day after submitting a workers' compensation notice of claim to the school district before commencing his lawsuit. The law requires that workers wait 120 days after submitting a notice of claim, or until notice of denial of the claim, before they can begin litigation. The custodian clearly did not wait long enough, the court said.

The court held that the custodian's discrimination claims under the ADA failed because he did not present evidence that he was subjected to an adverse employment decision. Although the custodian said he was forced to quit, he only presented testimony that his supervisors mentioned his health problems several times and cited his medical costs and frequent absences in suggesting that he take early retirement. However, the custodian acknowledged that none of his supervisors threatened him or insisted he retire and none of them mentioned retirement to him in his last months of work. The court concluded that the custodian was not faced with intolerable conditions or harassment and that his retirement was voluntary.

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January 7, 2010

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