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It’s Not Disability Discrimination If You Report You Are Not Disabled And Harass Customers and Managers

by | Oct 29, 2024 | Disability Discrimination, Employment Discrimination, Employment Law, Retaliation, Wrongful Termination |

Representing yourself in a legal case, known as pro se representation, may seem like a way to save money, but it often comes at a higher cost in the end. Given the rising costs of health care, it might be cheaper to do your own angioplasty but how is that going to work out for you?

Pro se litigants are held to the same legal standards as lawyers, which means you are expected to know and follow all the same legal rules and procedures. As the United States Court of Appeals for the Tenth Circuit explained, “While we afford a pro se litigant leniency, we still require compliance with basic procedural rules and laws.” This means that if you don’t know how to submit evidence properly or make the right legal arguments, you can lose your case on a technicality. In Herrick v. The Vail Corporation, No. 23-1370, 2024 WL 4360502 (10th Cir. Oct. 1, 2024), Herrick represented himself in court and made several mistakes that seriously weakened his case, resulting in the dismissal of his claims.

Herrick worked as a Lift Operations Supervisor for The Vail Corporation, a seasonal position at the ski resort. His job involved managing lift operators, ensuring safety procedures were followed, and handling customer interactions. Because the ski season is temporary, so was his role—he would need to reapply for the position at the start of the new season. Each time he was hire, Herrick completed a form and self-identified that he had no disabilities.

Things became problematic when Herrick started harassing both customers and managers. Complaints piled up, including reports of Herrick creating an uncomfortable and hostile work environment. His behavior was disruptive and inappropriate for someone in a position requiring customer interaction and safety oversight. After multiple warnings, the company terminated his employment.

Herrick argued that he was wrongful fired due to disability discrimination under Americans with Disabilities Act (“ADA”).

Best Wrongful Termination Attorney Blogs on Point:

Can You Claim Disability Discrimination If You Repeatedly Report That You Do Not Have a Disability?

No, you cannot claim disability discrimination under the ADA if you repeatedly state that you are not disabled. In Herrick v. The Vail Corporation, Herrick filled out multiple forms declaring that he did not have a disability, which severely undermined his argument that his termination was based on disability discrimination. To prove an ADA claim, an employee must show they have a disability, are qualified to perform their job with or without reasonable accommodations and were discriminated against due to their disability. Moreover, if the employer does not know about any alleged disability until after the alleged wrongful termination, then the disability implicitly could not have been part of the employer’s decision to fire the employee. No causation.

Since Herrick himself reported that he was not disabled, his claim fell apart. This situation highlights why it’s crucial to be consistent in your documentation. If Herrick had consulted an employment lawyer, he likely would have been advised to align his documentation with his legal arguments, or not waste his time and money pursuing an unwinnable wrongful termination and disability discrimination claim

Does It Matter If Evidence Is Presented the Right Way?

Yes! Both the federal and state courts have rules of evidence that control how evidence is to be presented. Courts take these rules very seriously. Properly submitting evidence is key to proving any legal claim.

Herrick failed to timely present his medical records or other supporting documents in the correct legal format, meaning that the court could not even consider them. The United States Court of Appeals for the Tenth Circuit explained, “Herrick’s failure to submit his medical records in the required format left the court with little admissible evidence of his alleged condition.”

Confronted with the problem with his medical records, Herrick filed declarations from family and friends to show that he suffers from depression. But these declarations were thrown out as well: “The district court refused to admit the declarations because they do not comply with 28 U.S.C. § 1746, which authorizes an unsworn declaration if it is dated, and the declarant subscribed under penalty of perjury that the writing is ‘true and correct.’ … Although Herrick contends the district court should have allowed the declarations because he is pro se, his pro se status does not except him from following the same rules of procedure that govern all other litigants.” Herrick at *4. Thus, Herrick lost the use of the declarations simply because he forgot to include the words “true and correct” and the date. Details matter in litigation. Sooner or later, a pro se employee will screw it up.

An experienced attorney would have known the rules for submitting evidence and ensured that all required documents were properly filed and admissible.

Is Sending Threatening Emails to Your Job After Termination Considered a Protected Activity?

No, sending threatening emails to your employer after being terminated is not a protected activity under any employment law. After his alleged wrongful termination for disability discrimination, Herrick sent threatening emails to The Vail Corporation, claiming he would “expose” the company and damage its reputation. These threats significantly damaged his claim that the employer wrongfully refused to rehire him at the start of the next season.

The Tenth Circuit Court of Appeals made it clear that Herrick’s actions were not legally protected. As the Tenth Circuit noted, “Herrick’s post-termination conduct, including sending threatening emails, did not constitute protected activity and undermined his retaliation claim.” Legal protections under the ADA and other employment laws apply when employees are engaging in lawful actions, such as filing complaints or participating in investigations—not when they make threats against their employer. This again illustrates why having legal counsel is critical—an attorney would have advised Herrick to maintain professionalism and avoid such damaging behavior.

Do I Need An Employee’s Right Lawyer?

Herrick’s decision to represent himself and his failure to properly document his claims led to the dismissal of his case. If he had hired an experienced employment attorney, he likely would have been guided through the process of submitting the correct evidence and aligning his arguments with his documentation.

At Spitz, The Employee’s Law Firm, we take employment law cases on a contingency fee basis, which means you don’t pay us unless we win your case. We also offer a no-fee guarantee, so there’s no financial risk in consulting with us. Trying to handle your case alone may seem less expensive, but it will ultimately cost you more—both in terms of recovery and legal mistakes. Hiring an experienced employment lawyer ensures that your case is handled correctly, increasing your chances of winning and maximizing your compensation.

Disclaimer:

This disability discrimination and wrongful termination blog is for informational purposes only and does not constitute legal advice. Viewing this blog does not create an attorney-client relationship with Spitz, The Employee’s Law Firm. Each case is unique, and specific legal advice should be obtained for your individual circumstances. If you believe you have been discriminated against or wrongfully fired, contact Spitz, The Employee’s Law Firm for a free consultation.