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Question For Jury Whether Pre-Accommodation Job Performance For Termination

Elizabeth Erickson was both a client and an employee of the Wisconsin Department of Workforce Development’s Division of Vocational Rehabilitation (“DVR”). DVR helps disabled individuals find employment. Ms. Erickson was deaf in one ear. On her application for employment, she noted her deafness and indicated her use of a hearing aid in some circumstances.

Ms. Erickson was hired for a one-year probationary period. Her first two reviews were fine. It was on the third review, at nine months, that her supervisor told her that he had serious concerns. In response, Ms. Erickson disagreed with his assessment, and let him know about her hearing impairment. She also filed a formal request for accommodations that included a doctor’s note outlining how she would really benefit from receiving information in a visual way. The request for accommodation was granted. However, within one month the supervisor brought more issues to Ms. Erickson’s attention. Ms. Erickson objected, asserting that some of the criticisms were based on her job performance before she began receiving accommodation. DVR terminated Ms. Erickson.

DVR tried to have her case dismissed before trial. The federal district court refused to dismiss the case. Finding that DVR’s allowance of only six weeks of accommodations before terminating her were sufficient to allow a jury to believe that DVR had relied upon pre-accommodation job performance in reaching its decision to fire her. Moreover, the court noted that DVR could reasonably be found to have known about her disability since the beginning of her employment, when she self-identified, and failed to provide any accommodation. The timing of the termination in relation to her express request for accommodation could lead a jury to believe that the termination was “an effective denial of her request for accommodation.”