Embellishing Employee’s ADA Claim Tossed by Virginia Federal Court

Four years after falsely claiming seventeen years of engineering experience rather than two when applying to AGFM, Patrick Cavaliere was terminated for procrastination, lack of productivity, technical incompetency and serious errors in his work. In response, he filed a pro se action alleging wrongful termination, failure to accommodate, and retaliation in violation of the Americans with Disabilities Act.  The case is Cavaliere v. American GFM Corporation, Civil Action No. 2:11-cv-649 (E.D. Va. Dec. 6, 2012).

Cavaliere received discipline for poor performance in certain engineering tasks assigned, and disclosed to his supervisor that he was undergoing treatment for depression.   Thereafter his supervisor sent him an email stating, “Bottom line, you must vastly improve . . . or you will not remain at AGFM.”  His supervisor thereafter fired him.  As a pro se plaintiff, Cavaliere argued that his firing was not fair.  He agreed to dismissal of his retaliation claim, and AGFM moved for summary judgment on his wrongful termination and failure to accommodate claims.

The court quickly disposed of his failure to accommodate claim at summary judgment because Cavaliere had not exhausted it before the EEOC.   The court considered the summary judgment standard in evaluation his wrongful termination claim.  Summary judgment dismisses a case, and is granted when a party does not dispute any of the material facts on dispositive issues in the case and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Here, Cavaliere merely offered his own version of his termination and failed to present any affidavits, statements or deposition testimony for the court to consider. A proper response to summary judgment must be offered by affidavits, signed and notarized under oath, or by sworn statements with certification that they are signed under penalty of perjury. However, in deference to his pro se status, the court considered Cavaliere’s response and found that it did not dispute the material facts of the termination.

In granting AGFM’s motion for summary judgment on the wrongful termination claim, the court noted Cavaliere’s contention that the firing was unfair. While possibly unfair, Cavaliere failed to show that it was unlawful. To establish a prima facie case of wrongful termination of an employee with a disability, the plaintiff must show that (1) he was a ‘qualified individual with a disability’; (2) he was discharged; (3) he was fulfilling his employer’s legitimate expectations at the time of discharge; and (4) the circumstances of his discharge raise a reasonable inference of unlawful discrimination.” Rohan v. Networks Presentations LLC 375 F.3d 266, 272 n. 9 (4th Cir. 2004).

Although Cavaliere had disclosed to his supervisor that he was undergoing treatment for depression, he did not ask for an accommodation and did not show any evidence that he was performing his job duties adequately. A plaintiff’s self-assessment and subjective beliefs, without more, are not sufficient to establish a genuine issue of material fact. Bryant v. Bell Atl. Md., Inc., 288 F3d 124, 134-5 (4th Cir. 2002). Regardless of which Cavaliere thought about the fairness of his firing, the court found no evidence of disability discrimination.