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Are Rumor Based Beliefs a Defense to Discrimination Claims?

By Elizabeth Torphy-Donzella - Shawe Rosenthal LLP

August 24, 2022

Does an employer violate discrimination laws when it acts on information that it honestly believes about an employee that disqualifies him from the job? Even if the employer might be mistaken and the employee has a legally protected disability? An appellate court recently provided the answer. No!!

That was the conclusion of the U.S. Court of Appeals for the Eighth Circuit in Leblanc v. McDonough. In that case, an employee of the Department of Veteran’s Administration Police Department (LeBlanc) sought a schedule change due to a medical condition that he and his doctor said was exacerbated by his rotating night shifts. The change to all day shifts was granted on a trial basis while management considered the matter. LeBlanc said the change really helped his condition. Soon after, though, a VA lawyer opined (as lawyers always do) that the change probably violated the collective bargaining agreement (CBA). The change also burdened others who had to take more than their share of night shifts.

LeBlanc’s accommodation was rescinded, and he was offered a day shift administrative job. He insisted that he had not said he had to have the accommodation (only that it might be helpful) but the die was cast. LeBlanc accepted the transfer – then applied for two open positions.

Leblanc received the highest score for one of the two (training instructor). However, the Chief responsible for hiring heard a “rumor” that during the interview, LeBlanc had said if faced with an active shooter, he would flee!

Understandably alarmed at the prospect of someone responsible for training officers would flee rather than engage an active shooter, the Chief traced back the source of the rumor. First he called the wife of the candidate he’d hired for the other position, who said a VA nurse told her about the flight comment. Then he called the VA nurse who reported that LeBlanc had said that the department’s officers “are not required to confront active shooters and that, if he was involved in such a situation, he would flee.”

The Chief decided to re-interview the candidates and ask some questions that hinted at the concern: what would the candidate do if faced with an employee promoting a position contrary to their training, and what would the candidate do if they were not in agreement with the training or how it was to be presented. The Chief also requested references for each candidate (something not sought in the first interview). As a result of all this, LeBlanc now scored lower than the other candidate and did not get the promotion.

LeBlanc sued under the federal employee version of the Americans with Disabilities Act (the Rehabilitation Act) for failure to accommodate his disability and for a discriminatory refusal to promote.

The Eighth Circuit rejected the accommodation claim (employers are not required to violate a CBA in accommodating an employee and the transfer to the open job was therefore a reasonable – and lawful – accommodation).

As to the discrimination claim, the court rejected the contention that what LeBlanc called a suspiciously “unusual” interview process (two rounds and sudden reference requests) suggested the exercise was a pretext for discrimination. The court reasoned that “unusual” interviews generally are not sufficient to prove pretext. Plus, the “troubling allegations about an applicant’s professional conduct” reasonably supported a second round of interviews.”

LeBlanc also argued that the scant investigation of his alleged active-shooter comment (including not confronting him about the allegation) and the source of the rumor (the wife of a successful applicant) called into question that the Chief had a reasonable belief LeBlanc said it. Balderdash! said the court (or more precisely, “we have routinely held that ‘shortcomings in an investigation do not by themselves support an inference of discrimination.’”).

What can employers learn from this case?

First, accommodating disabilities on a trial basis allows a company to see whether the changed conditions are reasonable. Finding that they are not (and in violation of a CBA to boot) warrants rescinding the change. Transfer to an open position is appropriate.

Second, honest beliefs that an individual has taken a position that is employment disqualifying may be a legitimate, non-discriminatory reason for acting on it. Even if the belief is inaccurate. Being mistaken and acting unfairly is not a best practice, but it does not support a claim that a motive is unlawful.

Finally, if someone who is supposed to train officers is in favor of flight instead of fight where an active shooter is encountered, they need to find another job. Period.

www.lehrmiddlebrooks.com

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