Jury Could Find Termination Substantially Motivated by Disability

Disability Discrimination Lawyers of Helmer Friedman LLP have extensive knowledge in this area of law.

Although Employer Had Tentatively Placed Employee RIF List Before Becoming Aware of Her Disability, It Did Not Terminate Her Employment Until After It Was Aware Of Her Disability – A Reasonable Jury Could Find That Employee’s Ultimate Termination Was Substantially Motivated By Her Disability

Lin v. Kaiser Found. Hosps., 88 Cal.App.5th 712 (2023)

Suchin I. Lin was employed by Kaiser as an IT Engineer. Lin became disabled as a result of a fall in the workplace which caused her to suffer an injury to her left shoulder. A doctor issued a work status report placing Lin on modified duty with restrictions requiring Lin to use a sling and to limit the use of her left arm. The doctor also indicated that surgery might be necessary. As part of a round of employee layoffs Kaiser planned, at least tentatively, to terminate Lin before Lin became disabled. Following her disability, Kaiser went forward with her layoff. Lin sued for disability discrimination. Kaiser filed a motion for summary judgment, arguing that it was entitled to summary adjudication of Lin’s disability discrimination and retaliation claims because the decision-maker had made the decision to eliminate Lin’s position in a RIF before Lin sustained her disability. Lin opposed the motion arguing that, while her name was selected for the initial RIF list prior to her disability, this “proposed” list was “subject to further review,” as reflected in the list’s gradual reduction from 31 employees to the 17 who were ultimately laid off. She further argued that her ultimate termination was a result of the decision-maker’s reliance on her supervisor’s post-disability assessment of her, particularly a post-disability email to the decision-maker rating her performance much lower than that of her teammates. The trial court granted Kaiser’s motion.

On appeal, the Court of Appeal reversed. The Court of Appeal held that Kaiser’s plan to terminate Lin before she became disabled, by itself, was (of course) not discrimination against Lin because of her disability. But Kaiser did not complete its layoff plans—or, a reasonable jury could find, make its final determination to terminate Lin—until after Lin had become disabled. The Court of Appeal found that there was evidence from which a reasonable jury could conclude that Kaiser’s ultimate decision to terminate Lin was motivated, at least in substantial part, by concerns Kaiser had about Lin’s disability. The Court of Appeal found the following facts important in its decision:

  • Before Lin sustained her disability, neither her then-current supervisor nor any prior supervisor had given her a negative performance evaluation.
  • After Lin sustained her disability, her then-current supervisor began giving her negative feedback and a poor performance evaluation.
  • Lin’s then-current supervisor’s criticisms, in large part, revolved around his concerns about her “slow delivery” and her “pace of execution” – concerns that a jury could find stemmed directly from her disability.

Lin’s then-current supervisor agreed to Lin’s request for light-duty work as a form of accommodation for her disability (but he never actually provided her with light-duty work). His agreement to assign Lin lighter tasks supported a reasonable inference that he believed her disability prevented her from handling her usual workload.

Lawsuit alleges Hocking College in Nelsonville, Ohio, Discriminated and Retaliated Against Down Syndrome Student Athlete

Hocking College football sensation sues for discrimination, harassment and assault.

An athlete with Down syndrome made history. Then the abuse began, the suit says.

Caden Cox ran out to the 13-yard line with 3:22 left in the third quarter as his Hocking College Hawks battled the Sussex County Community College Skylanders on Sept. 11, 2021.

With Cox ready, the center snapped the football to the holder, who caught it and put it on the turf. Wearing No. 21, Cox trotted forward, pulled back his right leg, and swept it forward, lifting the ball through the uprights.

The extra point was good.

With that, Cox made history as the first known player with Down syndrome to score during a college football game. The feat earned him a spot in the history books and a 5½-minute segment on ESPN.

People talked to me and said, ‘Wow, it was an awesome kick

“People talked to me and said, ‘Wow, it was an awesome kick,’” he told a reporter at the time.

Less than two years later, Cox is suing his alma mater, alleging that the very thing that made his kick historic also made him a target for discrimination. In a lawsuit filed Thursday in the U.S. District Court for Southern Ohio, Cox alleges that college officials in Nelsonville, Ohio, discriminated against him because he has Down syndrome and then retaliated against him when he reported it to administrators. In one incident, a supervisor at the college’s student center threatened him with a knife and was later convicted in the incident.

President Betty Young declined to comment on Cox’s allegations but, in a statement to The Washington Post, said that she’s “happy Hocking College could provide opportunities for Caden to receive a college education and to participate in college athletics.”

“We remain committed to provide such to all our students,” she added.

Cox alleges that the discrimination started soon after June 2021 when the college hired Matthew Kmosko, a former professional soccer player, as a soccer coach and a supervisor at the college’s student center. In the latter role, Kmosko oversaw Cox, who worked at the center as a student-employee. As Cox’s boss, Kmosko consistently used “derogatory slurs” about people with Down syndrome and repeatedly berated him in front of his co-workers, the suit alleges.

Court records do not yet list an attorney for Kmosko. The public defender who represented Kmosko in the criminal trial declined to comment on Cox’s allegations in the civil suit.

In July 2021, Cox’s mother, Mari, who works at the college, filed a written complaint about Kmosko’s behavior with the college’s human resources department, according to the suit.

The misbehavior not only continued but also escalated, it alleges.

In January 2022, Mari emailed another complaint about Kmosko, asking that he be replaced as her son’s supervisor, the suit says. In the message, she accused Kmosko of calling her son the r-word, taking his phone without permission, and “putting his hands on [her son] inappropriately.”

Then, on May 12, when Cox went into a men’s bathroom to change the garbage bags, Kmosko allegedly followed him, blocked the exit and screamed at Cox while preventing him from leaving. As Kmosko did, he pointed a knife at Cox’s chest, the suit states.

Cox told investigators he feared that Kmosko would stab him, according to a police report.

Surveillance cameras captured Kmosko walking into and out of the bathroom with the knife, the suit states. Shaken and scared, Cox returned to the front desk, where he said he received a call from Kmosko. He allegedly told Cox that he could see him sitting there and ordered him to “get up and do something” before hanging up.

Cox “was terrified and traumatized and called his mother immediately,” according to the suit.

In July, Kmosko, who resigned from the college, was charged with aggravated menacing, a misdemeanor, in connection with the incident, and an Athens County jury found him guilty in January of menacing, a lesser charge. He was sentenced to 30 days in jail.

This past October, the college sent an email to employees calling for nominations for awards at the fall graduation ceremony, the suit states, and Cox “was nominated for nearly every award” by several staff members, including his coaches. Once the votes were tallied on Nov. 11, Cox had won three honors: the Inspirational Award, the Scholar Athlete Award, and the Hocking College Trustee Award, which was to be bestowed at a graduation ceremony on Dec. 10.

On Dec. 2, lawyers representing the Cox family delivered a letter to Young, laying out their allegations of discrimination, harassment, and assault.

On Dec. 9, a day before the ceremony, Cox’s father, Kevin, who worked at the college as a football coach until he resigned in February, arrived at the school to set up for the next day’s festivities. Reviewing the ceremony program, he noticed it listed his son as having won only one award, although a QR code on posters around the school routed to a digital version showing all three.

“Retaliation is the only plausible reason for the surreptitious and punitive removal of [Cox’s] graduation awards days before the graduation ceremony was to take place,” the suit alleges.

For people with Down syndrome, a longer life, but under a cloud

After graduating, Cox completed a football-related internship at Texas A&M University, where his older brother works as a strength coach, his lawyer, Mark Weiker, told The Post. He’s back in Ohio and, in June, plans to go to orientation at an Ohio State University program for people with intellectual and developmental disabilities.

But a year later, the knife incident still haunts Cox, according to his lawsuit. He continues to suffer from nightmares and anxiety. When he visits Hocking’s campus, he gets especially scared when he sees a red car like the one Kmosko used to drive to school.

“The distress that [Caden] suffered and continues to suffer from as a result of the trauma he endured,” the suit states, “will affect him emotionally and psychologically for the rest of this life.”

Read more By Jonathan Edwards

Employment Round Table

Employment Roundtable of Southern California’s 2009 Annual Conference

November 5, 2009 – The Employment Roundtable of Southern California (“ERTSC”) will hold its 2009 Annual Conference on November 5, 2009, at the Westin Bonaventure Hotel in downtown Los Angeles. The address is: 404 S. Figueroa St, Los Angeles, CA 90071. Mr. Friedman will appear on a panel discussing disability discrimination with Erica Jones, Director, Pacific Disability & Business Technical Assistance Center and prominent defense counsel Anthony J. Oncidi of Proskauer Rose LLP.