Judge John Tunheim of the Federal District Court in Minnesota will permit a plaintiff to proceed to trial on his claims of discrimination in a case which seems to embody the adage “timing is everything”.

Landon Young worked for McLane Minnesota, a grocery supply chain company.  After his shift on September 24,  Young was injured in a car accident.  He was taken to the hospital, treated, and released that night.  That same evening, Young called McLane and spoke to the supervisor on duty, (although he cannot recall the individual’s name).  Young told the supervisor that he had been in an accident, would be out from work until his next doctor’s visit eight days later, and that he would present a doctor’s note to McLane after that visit.  Young alleges the supervisor told him “that was fine.”  The company denies this.

Two days later, on September 26, Young also informed the company’s billing office that he would not return until his next doctor’s appointment. Young’s cell phone records indicate that he placed a total of seven calls to McLane on September 24, 26, and 28 (two calls) and on October 2, 3, and  5.

On October 3, Young returned to work with a doctor’s note requesting certain work-related accommodations. That same day,  Young’s supervisor called him and fired him because “he missed too many days since the accident.”  McLane asserts that it terminated Young on October 1 for violating its “no call no show” policy on Thursday, September 27 and Friday, September 28.  The termination notice, however, stated that Young “had a non work related injury and failed to return to work.”  Significantly, the first time Young heard he was being terminated was after he had presented the doctor’s note requesting accommodations.  Young sued for disability discrimination.

The Court concluded that there were disputed factual issues here that would have to be decided by a jury.  For instance, Young’s termination notice specifically mentions his injury; a reasonable jury could conclude that this reflects direct evidence of a discriminatory attitude. 

There is also evidence that the employer’s reasons for terminating Young are not true and therefore a “pretext” for discrimination.  First, there was a change in the explanation for his termination: on October 3 his supervisor indicated that he was being terminated because he missed too many days; later, the termination notice indicated that the reason for discharge was “non work related injury and missed days.”  Judge Tunheim found that this additional language suggests discrimination.  Second, there is evidence that Young did not violate the “no call  no show” because he called the company a number of times, and he never received a warning between September 24 and October 3 that he had violated it.   Finally, the company itself failed to follow some of its policies in regard to Young, also suggesting pretext.

There are a number of lessons for employers to draw from this case:

• Don’t wait to terminate an employee.  For instance, if you are terminating her for “no call no show”, do so at the time of the violation, not after she returns to work;
• Don’t terminate an employee immediately after he has given you a note requesting accommodations;
• Don’t mention an employee’s injury in the termination notice, thereby suggesting a link between the injury and the termination;
• Do keep the reason for the termination consistent; and
• Do follow your own policies.