Manager’s acts and omissions provide evidence of discrimination and retaliation

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Responding to discriminatory comments, modifying work duties after a request for disability accommodation, and documenting internal business reorganizations are part of a manager’s job. But if handled incorrectly or inconsistently, they can also be evidence of discrimination or retaliation. Indeed, how a manager handled those situations was key to the Tenth Circuit recently reversing a district court’s order granting summary judgment.

In Jenny v. L3Harris Technologies, Inc., the Tenth Circuit Court of Appeals held that plaintiff David Jenny provided sufficient evidence for a jury to infer discriminatory or retaliatory animus in violation of the Americans with Disabilities Act and the Rehabilitation Act. While the court’s decision wrestled with technical legal issues on the proper amount of proof, the core facts of the manager’s acts or omissions provide key lessons to employers.

The factual background

As senior director of international business development for L3Harris, Jenny was often required to travel internationally for work. During his employment, he contracted cellulitis, a painful skin infection that was aggravated by sitting in cramped conditions on long flights. To help alleviate his symptoms, he requested and was granted an accommodation to book extra legroom on those flights.

Following a company merger, Jenny began reporting to Vice President Keith Gentile. Within three months of Jenny’s accommodation being approved by Human Resources, Gentile not only denied him permission to travel for routine business, but he also reorganized the department in such a way that Jenny would be out of a leadership role and effectively replaced by another individual.

Additionally, another vice president, Kevin Kane, allegedly disparaged Jenny’s disability and accommodation requests and did so in front of Gentile. Gentile, however, expressed no disapproval of Kane’s disparaging remarks. Moreover, he and Kane denied two of Jenny’s requests for international travel – one to a conference in the United Kingdom that he had previously attended, and another to the United Arab Emirates to engage in negotiations on a potential contract that he had been involved in for years.

In addition to denying these travel requests, Gentile announced his proposed reorganization of the business development division, which involved the hiring of another employee in a role that would effectively replace Jenny. Contrary to standard company practice, Gentile did not post the new position internally. Moreover, he also told Jenny that he had heard that Jenny did not want the position. After Jenny corrected him, informing him that he did want the position, Gentile said that the personnel change had not been approved and that he would see what he could do to fix the situation. Jenny responded by saying that if Gentile could not fix the situation, then Jenny wanted to be transferred somewhere else within the company or, if that failed, to “put a deal on the table” for him to consider.

Rather than walk back the reorganization or find Jenny a new role, Gentile told HR that Jenny wanted to be “packaged out” of the company and to add him to a reduction-in-force plan in the following weeks. Jenny was then told his job was being eliminated by the company. Later, Gentile defended his decision to terminate Jenny for performance-based reasons that were inconsistent with Jenny being included in a reduction in force.

Eventually, L3Harris terminated Jenny. Jenny sued L3Harris, alleging that the company discriminated and retaliated against him because of his disability and request for accommodation.

The appeals court’s decision

On appeal, the Tenth Circuit – the appeals court that covers Oklahoma, Kansas, Colorado, New Mexico, Utah and Wyoming – reversed the district court’s order granting summary judgment. The court analyzed the appropriate level of review and evidentiary burden. Moreover, there was even a concurrence that discussed the proper analytical framework for courts to use in employment cases. Much of the court’s analysis would make a thrilling discussion in an in-depth law review article, of which this is not. In short, the decision is a small step away from using the common McDonnell Douglas burden-shifting framework for how courts determine if an employer’s legitimate non-discriminatory and non-retaliatory reason is pretext for the actual illegal reason for an adverse employment action.

Nonetheless, the court focused on several factual issues that give helpful lessons to employers that are not law nerds. Of note, it found that even though Gentile himself never made any discriminatory comments, he expressed no disagreement with the comments made by Kane. In other words, it may not be enough for a manager to merely ignore discriminatory comments to avoid an inference of discrimination; they must actively address inappropriate comments.

Moreover, Gentile’s refusal to allow Jenny to engage in normal business travel was not adequately supported by any documented business reasons and that he was treated differently than other employees. This was not a situation where there was some dispute as to whether allowing a modified travel arrangement was an unreasonable accommodation. Indeed, HR had already approved the accommodation to book airline seats with more legroom.

Gentile’s proposed business reorganization based on incorrect information (i.e., Jenny supposedly not wanting the new position) and not following standard practice of posting the position internally was also sufficient for the court to find evidence of potential discrimination or retaliation.

Finally, Gentile and L3Harris offered shifting reasons for Jenny’s termination. Initially, the defendants claimed Jenny was part of a reduction in force due to his alleged desire to be packaged out of the company. Later, Gentile changed course and claimed it was because of alleged performance issues. All these offer key lessons to employers.

Takeaways for employers

Key lessons the employers should take from this case include:

  1. Managers should properly respond to discriminatory comments. It is often not enough to simply ignore a co-worker making inappropriate discriminatory comments. Employers should implement policies and procedures on how to report inappropriate comments and hold employees accountable when they do not follow them.
  2. Employers should ensure that managers know how to appropriately handle job assignments for which an employee has received an accommodation. Completely withholding or removing job duties or assignments when a reasonable accommodation is available can be seen as discrimination or a failure to accommodate. If there is some business reason to change routine or necessary job duties, managers should adequately document why those apply to a specific employee. Without some legitimate business justification, it is almost never appropriate to simply take away key job duties from an employee when it is already clear they can perform them with reasonable accommodation.
  3. Managers should be able to document and explain business reorganizations or job eliminations. Moreover, they should follow all standard practices or procedures when reorganizing or eliminating positions. For employment law purposes, “eliminating” a position is akin to a termination, and employers must generally provide some reason why a position is being eliminated.
  4. Finally, employers should be consistent in communicating their reason(s) for terminations. There may be multiple reasons for why an employee is terminated, and employers are entitled to have several reasons for a decision. Employers may add more details at different levels of review. However, they should not communicate those separate, inconsistent, or changing reasons to the employee or others. Indeed, the best practice is to have well-documented and consistent reasons for a termination.
    .

Jenny v. L3Harris Technologies, Inc., No 24-4032 (10th Cir. 2025)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Attorney Advertising.

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