April 2020 - Parks & Recreation - 33

dark. With respect to the hernia,
the Township provided help to
Mullen and allowed him to return
to work on light duty after he had
corrective surgery in July 2016.
In March 2017, Mullen slipped
on ice and injured his knee while
working. He filed a formal workinjury report with the Township's
Human Resources department in
May 2017 and sought treatment
at that time. Because summer is a
busy time of year for Mullen, work
wise, he opted to have his knee surgery on August 3, 2017. The Township's director of parks and recreation thanked Mullen for holding
off on his knee surgery while it was
busy. Following surgery, Mullen
was out on medical leave for several weeks. He returned to work in
November 2017.
On January 4, 2018, Mullen
was caught using a Township
plow truck to plow snow in a
McDonald's drive-thru during a
snowstorm. The Township terminated Mullen on January 18,
2018. The Township explained
that Mullen was being fired for
plowing private property on January 4, 2018, though there was
no formal policy prohibiting
such conduct.
Mullen claimed the Township's explanation was " pretext
for discrimination and retaliation due to his disability and
taking medical leave. " On July
25, 2018, Mullen filed a lawsuit
against the Township for violations of the ADA.
After pretrial discovery of documents, sworn statements and deposition testimony, the Township
moved for summary judgment on
Mullen's ADA claim. Summary
judgment would effectively dismiss

Mullen's lawsuit without any trial
proceedings.
A summary judgment in favor of
the Township would only be granted, however, by the federal district
court if the undisputed pretrial evidence shows " there is no genuine
dispute as to any material fact " and
Mullen had failed to demonstrate
the required elements to establish
his ADA claim.

ADA Discrimination
As cited by the federal district
court, to establish a case of disability discrimination under the ADA,
Mullen would have to allege and
ultimately prove the following:
(1) he is a disabled person within the meaning of the ADA; (2) he
is otherwise qualified to perform
the essential functions of the job,
with or without reasonable accommodations by the employer; and
(3) he has suffered an otherwise
adverse employment decision as a
result of discrimination.
If the Township offered " a legitimate, non-discriminatory reason for
the adverse employment decision
- Mullen's termination, " to maintain his ADA claim, the court
noted: " Mullen must then come
forward with evidence that the
Township's proffered explanation
is pretextual. " According to the
court, Mullen could demonstrate
illegal pretext within the context of
the ADA by producing evidence,
which would reasonably indicate
the following:
(1) disbelieve the employer's articulated legitimate reasons; or (2)
believe that an invidious discriminatory reason was more likely than
not a motivating or determinative
cause of the employer's action.
The Township argued Mullen's

ADA claim should fail since he
had not produced sufficient pretrial evidence to demonstrate the
Township terminated him because of his disability. Moreover,
the Township asserted the reason
offered for Mullen's termination
was legitimate and not a mere
pretext for discrimination on the
basis of disability.

According to the court, to
satisfy the required " causation
element " for his ADA claim,
Mullen would have to prove " the
Township treated him diﬀerently
based on his disability. "
According to the court, to satisfy the required " causation element " for his ADA claim, Mullen
would have to prove " the Township treated him differently based
on his disability. " In so doing, the
court would further require Mullen to demonstrate his disability
" played a role in the Township's
decision-making process and that
it had a determinative effect on the
outcome of that process. "
In an attempt to show his disability was the true basis for the
Township's termination of his employment, Mullen pointed to the
following facts:
(i) the temporal proximity of
his termination, (ii) the lack of
a formal policy against using a
Township plow truck to plow on
private property, (iii) the lack of
a written disciplinary record, and
(iv) a stray comment by a Township employee.
In the opinion of the federal district court: " None of these facts

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April 2020 - Parks & Recreation

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