‘Aren’t You Being Discriminatory’ Is Protected Activity Under ADA

Mary Casna was a police clerk for the City of Loves Park, Illinois. Casna suffers a hearing impairment resulting from chemotherapy and wears aids in both ears.

Casna reported to Kay Eliot, the Chief’s secretary. Eliot kept a log in which she recorded Casna’s performance, and her comments were rarely favorable. Eliot noted that Casna took a long time to complete routine tasks and gossiped about coworkers.

The tension between Casna and Eliot came to a head in June 2003 when the two had a dispute as to whether paperwork was processed in a timely fashion.

The morning after the dispute, Casna sought out Eliot to apologize for not filing the paperwork immediately, explaining that she had not heard Eliot make that request. Eliot knew that Casna had a hearing impairment, but she had also seen Casna listening to music at her desk once and was frustrated by what she perceived as inconsistencies in Casna’s abilities; consequently, she asked Casna to explain specifically what she could and could not hear. When Casna was finished, Eliot snapped, “How can you work if you cannot hear?” Casna, who felt threatened by this comment, countered, “Aren’t you being discriminatory?”

Eliot refused to speak further with Casna, and sought instructions from the Police Chief, who instructed her to prepare a written evaluation of Casna. This was the first time Eliot had ever conducted a written evaluation of a subordinate during the subordinate’s first year on the job, and she had never evaluated a probationary employee before the full six months were up. Nonetheless, within a day, the Police Chief wrote to the mayor, recommending that the City terminate Casna. When the mayor fired Casna three days later, she brought a lawsuit. Casna alleged not only that her termination violated her due process rights, but also that the termination violated the Americans With Disabilities Act (ADA) because it was in response to her “Aren’t you being discriminatory” comment.

A federal Court of Appeals ruled that Casna was entitled to a trial on the ADA claim. The anti-retaliation provision of the ADA states that “no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any investigation, proceeding, or hearing under this chapter.”

The Court found that “an informal complaint may constitute protected activity for purposes of retaliation claims.”

In the eyes of the Court, Casna had raised a jury question on the retaliation issue: “Casna’s failings as an employee may have prompted the discharge, but so may have Loves Park’s intolerance of her complaint about discrimination. In this case the Chief recommended that Loves Park fire Casna the very day after she complained to Eliot about her hostility to Casna’s hearing impairment. Suspicious timing is rarely enough to create a triable issue, but in an extreme case like this, where the adverse impact comes on the heels of the protected activity, it is. A fact finder must determine whether the Chief initiated Casna’s discharge because she had just protested Eliot’s possible discriminatory attitude or because her work performance was inadequate.”

Casna v. City of Loves Park, 574 F.3d 420 (7th Cir. 2009).

This article appears in the October 2009 issue