Freescale Semiconductor, Inc

The Fifth Circuit becomes the latest circuit to grapple with the temporary (or joint) employer issue under the federal anti-discrimination laws. It concludes in this case that there was a genuine dispute of material fact about which entity (or both) employed the plaintiff for purposes of the ADA. The panel also holds that there was a genuine dispute about pretext, where the alleged grounds for termination - among other things, her using the Internet while at work - may not have been known to the decisionmaker at the time the plaintiff was fired.

: Plaintiff was a Manpower (temporary employment agency) employee, contracted to work for Freescale in assembly in Texas. Due to heart palpitations, she made two trips to the emergency room in 2011. She also applied for workers' compensation, believing that her condition was caused by her work with toxic chemicals. She was fired about two weeks later:

"According to [Bruce] Akroyd [of Freescale], a June 28th incident where Burton was caught using the Internet represented the 'final' straw . Nonetheless, there is conflicting evidence on whether Akroyd actually knew about the Internet incident when he decided to terminate Burton and whether the Internet incident actually postdated the decision to terminate Burton."

There was a hitch in the plan, though: "[w]hen the time to actually terminate Burton drew near, Manpower requested supporting documentation from Freescale." Manpower was not persuaded that the reasons for her termination were valid. "Manpower recommended against termination based on the paltry documentation and the recency of Burton's workers' compensation claim, but Freescale insisted." Then, a representative of Manpower named Dorsey allegedly instructed another Manpower manager (Rivera) "to terminate Burton's assignment and to inform her it was based on four discrete incidents, at least two of which occurred after the decision to terminate her had already been made."

Burton brought claims against both Freescale and Manpower based on the ADA (for "regarded-as" discrimination) and state law (retaliation for filing a workers' compensation claim). The district court granted summary judgment on each claim.

On appeal, the panel reverses summary judgment on the ADA claim.

It first confronts the issue of which defendant(s) might be held liable under the ADA. It has no trouble determining that Freescale, which controlled Burton's assembly-line job, constituted an employer. The closer issue is Manpower's liability, which handled the pay and other paperwork for Burton, but did not order her termination. "Manpower argues it cannot be liable for Burton's termination because Akroyd, a Freescale manager, made the actual decision to terminate her." Yet the panel holds that this misapprehends the "right to control" examination. Manpower is an employer by virtue of sharing the employment relationship with Freescale.

The panel holds following the recent decision in Whitaker v. Milwaukee Co., 772 F.3d 802 (7th Cir. 2014) - and other circuits - that "a joint employer must bear some responsibility for the discriminatory act to be liable for an ADA violation." Liability is not simply imputed to the joint employer because of the other actor's discrimination. On this record, Manpower could be held liable. "The undisputed evidence is that Manpower personnel carried out the actual termination. Further, Manpower terminated Burton's assignment after professing a belief that the termination was legally dubious." That it might have been obliged under its service contract to carry out Burton's termination "is no defense. As an employer, Manpower had an independent obligation to comply with the ADA, and a contractual obligation to discriminate would be unenforceable."

The panel then addresses the merits. It holds, on the prima facie case, that the employer regarded plaintiff as disabled because of the repeated trips to the hospital and attendant absences from work. "Akroyd testified he learned of Burton's alleged injury in mid-June and 'immediately' instructed his staff to 'look at it' because it was 'important.'" And when "Freescale worked to compile 'documentation' justifying its decision to terminate Burton, it collected multiple reports from supervisors explicitly tying complaints about Burton's conduct to her asserted medical needs."