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Employment Law Blog
James Tarquin, P.A
As part of our commitment to assist and educate employees in fighting back against the abusive employment practices of employers, we offer a broad range of information about employment law issues in our employment blog.

Employee Claims Disability Discrimination When Employer Fired Him After Learning He Had Cancer

Chalkboard with the words Disability Discrimination Act

Having been committed to fighting for the rights of Florida employees for almost twenty years, our Alachua County, Florida employment discrimination attorneys have learned that employers often terminate employees shortly after learning they have a disability under the Americans with Disabilities Act (ADA). Although employers almost always carefully mask their discriminatory intent when firing an employee under such circumstances, courts have consistently ruled that circumstantial evidence of intentional discrimination includes the suspicious timing of an employee’s discharge. The recent decision by the U.S. District Court for Oregon in Estep v. Forever 21 Retail, Inc., No. 16-2214 (D. Or. Nov. 13, 2018) illustrates that when an employer terminates an employee shortly after learning of his or her disability under the ADA, the suspicious timing surrounding the discharge is evidence that the employer’s articulated reason for firing the employee is a pretext for disability discrimination. Read on to learn more about cancer and termination and how that might ultimately lead to discrimination and ultimate discharge.

Employee Takes Leave To Treat Cancer

In that case, Jonathan Estep (Estep) brought a disability discrimination claim against his former employer, Forever 21 Retail, Inc. (Forever 21), pursuant to the ADA. Estep claimed that Forever 21 discriminated against him on the basis of his disability by firing him after learning that he had cancer. Estep began working for Forever 21 in July 2012 as a co-store manager. Forever 21 promoted Estep to store manager in 2013 and promoted him to district manager in 2014.

From January 25, 2016 to April 18, 2016, Estep took approved leave under the Family Medical Leave Act to treat and recover from cancer. Estep was then on unpaid leave until June 20, 2016. In June 2016, Estep provided new documentation seeking additional “estimated” leave to treat cancer until October 2016.

In June 2016, the Vice President of Operations, a woman named Ha, learned of Estep’s cancer diagnosis. Shortly after learning of his cancer diagnosis, Ha recommended Estep’s termination. On June 30, 2016, Forever 21 fired Estep. Forever 21 documented Estep’s “reason for separation” as an “involuntary layoff/position elimination.” Although it was Forever 21’s general policy not provide severance packages to employees terminated for performance issues, Forever 21 offered Estep a severance package. Forever 21 did not eliminate Estep’s position. Instead, Forever 21 replaced him with another district manager.

Although Estep was fired in June 2016, Forever 21 claimed that it intended to fire Estep in late 2015 because of his alleged poor performance. Forever 21 further claimed that Ha did not terminate Estep at that time because Estep began his sick leave before she had an opportunity to fire him. In support of Estep’s alleged substandard performance, Forever 21 claimed that Estep was one of fifteen “bottom performers” among forty-plus district managers, his stores were “operationally/visually challenged,” and he was “challenged with holding others accountable.” Ha also testified that the condition of one of Estep’s stores “was the worst she’d seen in 18 years.” Despite Estep’s purported poor performance, the evidence reflected that Ha intended to retain Estep as of March 31, 2016.

Suspicious Timing of Termination Reflects Intent for Discrimination

Forever 21 filed a motion with the trial court seeking dismissal of Estep’s disability discrimination claim. In doing so, Forever 21 argued that Estep’s disability discrimination claim was meritless and Estep was prohibited from bringing his disability discrimination claim before a jury for resolution. The trial court denied Forever 21’s motion for dismissal and ruled that a jury must decide whether Estep was terminated because of his disability.

In denying Forever 21’s motion for dismissal, the trial court focused on the suspicious timing of Estep’s termination. The trial court observed that Ha learned of Estep’s cancer diagnosis in June 2016 and Estep was fired that same month. The trial court also pointed out that Ha, before she learned of Estep’s cancer diagnosis, intended to retain Estep as of March 31, 2106. Although Forever 21 claimed that it intended to discharge Estep in late 2015 for poor performance but did not have an opportunity to fire him before he began his sick leave, the trial court pointed out that Estep had no negative performance reviews and was never notified that he was underperforming. Contrary to Forever 21’s position that Estep was a “terminable” district manager because of his substandard performance, the documented reason for Estep’s termination was “involuntary layoff/position elimination.” Forever 21 also offered Estep a severance package despite its general policy not to provide a severance package to employees terminated for performance issues. Moreover, the trial court noted, it was “undisputed” that Forever 21 did not eliminate Estep’s position, but, instead, replaced him with another district manager. From this evidence, the trial court concluded, “a reasonable jury could find a discriminatory reason for Forever 21’s termination of Estep.”

Free Consultation With Ocala Employment Lawyers

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience litigating disability discrimination cases in federal and state court. If you have been the victim of disability discrimination or have questions about your protection against disability discrimination, please contact our office for a free consultation with our Alachua County, Florida employment law attorneys. Our employee rights law firm takes disability discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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