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Sales associate fired same day as cancer diagnosis advances bias, retaliation claims

By Kathleen Kapusta, J.D.

The employee, who alleged that post-disability scrutiny resulted in her being singled out for punishment, claimed that although she was the most productive member of her team, she was the only one punished for failing to meet monthly sales goals.

Even though an employee was not diagnosed with parotid gland cancer until the day she was terminated, she sufficiently established a qualifying disability, a federal court in New York ruled, finding her employer was aware of her medical condition based on doctors’ notes that made clear she was impaired in her ability to participate in some major life activities. And while her employer claimed it fired her because of her history of poor performance, the court, denying summary judgment on her ADA, NYSHRL, and NYCHRL claims, found evidence of pretext, including a lack of documented performance issues before she became disabled, being singled out for failing to meet monthly sales goals, and violations of the employer’s disciplinary policy. Her retaliation claims also advanced (Corona v. Clarins U.S.A., Inc., September 12, 2019, Koeltl, J.).

Disrespected. As a sales associate for Clarins at its Saks Fifth Avenue fragrance counter since March 2016, the employee was tasked with selling new products. Although Clarins claimed that from the outset that the employee was constantly on her cell phone at the counter, was inattentive to customers and failed to address them politely, and was disrespectful to her supervisor, there was only one documented incident before the onset of her disability. In June, after the employee and her supervisor argued about her client service duties, her supervisor sent an email to her boss stating that the employee had disrespected her in ways she “had never been disrespected before.” The employee, however, contended the supervisor was at fault for the incident.

Medical restrictions. In late July, the employee fainted at work and was taken to the hospital. She went on short-term medical leave, returning on September 21 with two doctors’ notes imposing medical restrictions, including that she could not work more than nine hours per day, she should receive ample break time, and any heavy lifting, pushing, pulling, bending, or stair climbing should be limited. Clarins provided all accommodations.

Goals, goals, goals. The employee claimed that shortly after she returned to work, Clarins began imposing monthly sales goals. The company, however, contended that it imposed the goals as of “day one” of her employment. Nonetheless, on December 8, a Clarins manager gave the employee two written warnings for missing her October and November goals. Both warnings stated that if her performance did not significantly improve within 30 days, she could be fired. Claiming the goals were impossible to achieve and had been implemented to “set her up to fail,” the employee refused to sign the warnings.

Four days later, she emailed HR regarding the warnings, asserting discrimination based on her medical condition and claiming that her sales accounted for at least 40 percent of what the entire team sold. The manager and the employee’s supervisor later admitted that no member of the sales team ever met his or her monthly goals.

Eager. On December 22, the manager emailed HR about terminating the employee but was advised to wait until the end of the week “so we are close to the [thirty] day mark from the last write up.” On January 24, the manager again emailed HR about terminating the employee, stating that her December sales were less than half of her monthly goal and she was not on track to meet her January goal. He also noted continued problems with her behavior, including that she missed three days of work due to illness and a doctor’s appointment. She was terminated two days later. That same day, she was diagnosed with parotid cancer.

Disability. Although Clarins argued that the employee failed to allege a qualifying disability, it did not dispute she was suffering from parotid gland cancer when she returned to work after her medical leave. Moreover, even though she was not yet diagnosed, her doctors’ notes made it clear her medical condition impaired her ability to participate in major life activities such as working, lifting, and bending. Thus, she satisfied the definition of disability under the ADA, NYSHRL, and NYCHRL

But-for cause. Fact issues also existed as to whether discrimination was the but-for cause of her termination, as she alleged that after she returned from leave, she was individually punished for failing to meet new sales goals, even though no one on her team met his or her goals, and that Clarins used this as a basis to fire her.

And while Clarins offered a nondiscriminatory reason for firing her—a history of poor work performance—the court found fact issues as to whether this was pretextual. Not only did the employee deny that her job performance was deficient, she disputed the truth of any underlying facts giving rise to that judgment. Indeed, she claimed her sales performance was used as pretext for discrimination. Here, the court noted that the June 2016 argument with her supervisor was the only undisputed conflict that occurred before her December warnings, and she was never punished for that incident, which had nothing to do with her sales performance. These distinctions, said the court, undermined Clarins’ assertion that the employee faced a history of progressive discipline and raised a fact question regarding whether the June incident legitimately influenced the termination decision.

Increased scrutiny. While both the supervisor and manager claimed the supervisor regularly reported the employee’s performance issues to the manager before the December write-ups, the supervisor’s report of the June incident was the only email addressing the employee’s behavior that was sent before she became disabled. Further, it was unclear whether Clarins implemented the sales goals before the employee returned from leave and thus whether increased scrutiny of her sales performance only began after she returned to work with a disability.

Disparate treatment. As to the employee’s contention that no employee met the sales goals and she was the only one punished even though she was the most productive member of the team, the court observed that such a showing of disparate treatment between similarly situated employees is a recognized method of inferring discrimination.

Discipline policy. Finally, the employee argued that the company ignored its own disciplinary policy when it issued the written warnings without an informal discussion beforehand, when it issued two written warnings on one day, and when the manager attempted to fire her before the 30 days specified in the warnings. In addition, the supervisor’s testimony that the manager was motivated by “eagerness” and “personal” grievances with the employee undermined the company’s argument that it terminated her for performance issues alone. Accordingly, the employee’s ADA, NYSHRL, and NYCHRL employment discrimination claims could advance to trial.

Retaliation. As to her retaliation claim, the court noted that the six-week time period between her complaint to HR about discrimination and her termination was sufficient to create an inference of retaliation. Although for retaliation claims under the ADA and the NYSHRL, there is a split of authority in the Second Circuit regarding whether an employee must show the protected activity was a “but-for” cause or merely a “motivating factor” for the adverse action, here, the employee established a fact dispute under the stricter “but-for” standard.

Observing that Clarins again argued that it terminated her because of her poor work performance, the court found the company’s motivation for firing her was in dispute for substantially the same reasons as discussed with respect to her discrimination claim. Accordingly, this claim could also advance.