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The Americans with Disabilities Act (ADA) requires that every situation be evaluated on an individual basis. Therefore, it is sometimes difficult to derive general principles from the many different ADA cases that we read. Nevertheless, employers must always remember that under the right circumstances and in the right place, virtually any physical or mental condition potentially can be viewed as a disability.

This principle comes through loud and clear as the Minnesota Federal District Court ordered up a generous portion of ADA reality for the employer.

Cooking Up Trouble
Barbara Andresen worked for the Fuddruckers restaurant chain for 16 years in a variety of food preparation jobs. Andresen suffers from a severe problem with stuttering, which often interferes with her ability to communicate verbally and leads her to respond to people in handwriting, or with gestures and nods. She also sometimes had difficulty breathing and experienced excess build-up of saliva. Nevertheless, Andresen's tenure with Fuddruckers generally was marked by good performance evaluations and a good work record until her final year. When Andresen began working for two new managers in Fall, 2001, she began to be cited for various performance deficiencies. She also claims to have overheard one of the managers say that he was looking for a way to get rid of her. In May, 2002, she became subject to an action plan for performance improvement that included a requirement that she wear a surgical mask to address her “over-salivation and possible contamination of food.”

In June, Andresen received another memorandum stating that she was not following the action plan properly, and she was terminated in August, 2002, with a written notice stating that she had not improved to an acceptable level (although their legal papers asserted that she was fired because she “drooled and spit into food that she prepared and served to customers”). Andresen sued, claiming that she was fired for stuttering in violation of the ADA and the disability discrimination provisions of the Minnesota Human Rights Act.  Fuddruckers filed a motion for early dismissal.

Just Desserts
Fuddruckers argued for dismissal on the grounds that Andresen's stuttering did not impair a major life activity and therefore, was not a recognized disability under the law. The judge sided with Andresen, however, noting first that speaking is indeed a major life activity and that even the company's managers admitted that she had difficulty communicating with customers. In addition, an expert speech pathologist confirmed that Andresen's speech was severe and that it limited her communication. The judge therefore found that Andresen successfully countered this first argument in favor of dismissal.

Fuddruckers next contended that Andresen's case was defective because she was not qualified to handle food and therefore, could not perform the essential functions of her job. They pointed to her alleged refusal to wear the mask and her resulting inability to prevent contamination of the food. The judge pointed out, however, that Andresen had 15 years of successful performance behind her and that communication with customers was not an essential function of her food preparation job. In addition, the judge noted that even if Andresen could not perform in food preparation, she could have been transferred to one of the dishwashing and other non-food handling positions that she had requested and which had instead been given to new hires.

Finally, the restaurant argued that they terminated Andresen for a legitimate, non-discriminatory reason, namely the health hazard caused by drooling and spitting into the food, and that there was simply no evidence that her stuttering contributed to this decision. However, since this was not cited in the termination notice, and since Fuddruckers had submitted evidence to the court that they did not want Andresen interacting with customers, the judge found this contradiction to be sufficient to permit a finding of a discriminatory motive, and allowed Andresen to have her day in court. Andresen v. Fuddruckers, Inc., Case No. 03-3294 (Minn. District Ct. Dec. 14, 2004).

Food for Thought
This is yet another case that shows just how important it is to evaluate the issues carefully and expansively. After 15 years of successful job performance, an objective observer is going to wonder why the employee's performance deteriorated so rapidly and substantially, to the point where termination is warranted. Here, the employer tried to demonstrate the emergence of a new issue, namely their increased emphasis on health issues, but the lack of reference to these issues in the termination notice was just too great a burden for them to overcome.

There is no question that the restaurant had some important issues on their plate but in the end, their inconsistency in documentation and communication cooked their goose. The commencement of a lawsuit is no time to be cooking up justifications for an employee's termination. The recipe for success in these matters is finding the right blend of good documentation, careful evaluation of the facts and a well-reasoned, consistent explanation of the events from soup to nuts.

Founded in Saint Paul in 1943, Felhaber, Larson, Fenlon and Vogt, P.A. has offices in Minneapolis and Saint Paul. With over 55 attorneys, the firm serves clients in the areas of corporate and commercial law, employee benefits, employment law, estate planning, health care, intellectual property, labor law representing management, litigation, real estate, transportation law, and workers' compensation.