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Employee fired two days after company doctor suggests he suffered on-the-job hernia advances disability claims

By Marjorie Johnson, J.D.

An employee fired for purportedly working “unsafely” two days after he suffered an on-the-job injury, which the company doctor described as “hernia, pending diagnosis,” stated plausible claims of disability bias and retaliation under the ADA and state law, as well as a common law claim of wrongful discharge for filing a worker‘s compensation claim. Denying the employer’s motion to dismiss, a federal court in Pennsylvania ruled that the employee sufficiently alleged that he suffered a disability under the ADA, that he was treated dissimilarly, that the close temporal proximity suggested bias, and that the company doctor’s assistance in filing his workers’ compensation did bar not his wrongful discharge claim (Wainberg v. Dietz & Watson, Inc., November 28, 2017, DuBois, J.).

Placed on light duty. About a year after he was hired, the welder and maintenance employee suffered an on-the-job injury while repairing a meat cart. That same day, he informed his employer that he was having severe abdominal pain and was having difficulty bending and standing. After examining him, the company doctor completed paperwork necessary to file a worker’s compensation (WC) claim, described his impairment as “hernia, pending diagnosis,” and placed him on light duty.

Fired before formal diagnosis. Two days later—before he could obtain a formal diagnosis—the employee was written up for “working unsafely” while repairing the meat cart and terminated. However, he claimed that the company did not maintain written procedures for repairing meat carts and that his actions were consistent with that of his coworkers. He also asserted that none of his coworkers were reprimanded or terminated for repairing meat carts in the same manner.

“Transitory and minor” impairment? In denying the employer’s motion to dismiss his claims of disability bias under the ADA and Pennsylvania Human Rights Act, the court squarely rejected the employer’s assertion that he could not show that he suffered a disability since his hernia was temporary and could be corrected by surgery. Under the post-ADAAA law, a “transitory and minor” impairment may qualify under the “actual” disability or “record of” prongs of the ADA. Thus, the temporary nature of a hernia was no bar to the employee being disabled under either of these prongs.

Moreover, though a “transitory and minor” impairment does not qualify under the ADA’s “regarded as” prong, the employee adequately alleged that his impairment was not transitory and minor. Though he did not specifically allege the projected length of his claimed disability, other courts have found that hernia complications which lasted longer than six months constituted a disability. Thus, while the employer might show after discovery that the plaintiff’s impairment did not last beyond six months, its argument in this regard was rejected at this early stage.

Hernia may be substantially limiting. The employee also sufficiently alleged that his hernia substantially limited the major life activities of standing, walking, and lifting, and thus that he was disabled under the “actual disability” and “record of” prongs of the ADA. His “regarded as” claim was also adequate since under the ADAAA, he was not required to show the employer believed the impairment to be substantially limiting, but only that it knew of the purported disability. To support this showing, he asserted that the employer’s own physician concluded he suffered a hernia “pending diagnosis,” placed him on light duty, and helped him file his workers’ compensation claim.

Dissimilar treatment. The court also rejected the employer’s assertion that the employee’s disability bias claims must be tossed since he failed to show pretext by asserting that similarly situated individuals were treated differently. While comparator evidence may be relevant to establishing pretext, an employee does not need make this showing at the motion to dismiss stage. Moreover, he raised an inference of bias since by alleging that his actions in repairing the meat cart were consistent with common practices and that similarly-situated non-disabled individuals were not likewise reprimanded and/or terminated for making such repairs in said manner.

Retaliation for requesting accommodation. Also declining to dismiss the employee’s claim for retaliation under the ADA and PHRA, the court found that he sufficiently alleged that he engaged in protected activity when he requested an accommodation and was placed on light duty. Moreover, the two-day temporal proximity between his protected activity and his termination was sufficient to establish a causal link. He also alleged that there was no written policy regarding cleaning of the meat carts and that he was following common practices.

Workers’ comp retaliation. For purposes of his common law claim for wrongful discharge, the employee similarly adequately alleged a causal nexus between his workers’ comp claim and his termination based on the close temporal proximity. The court rejected the employer’s contention that his claim must be dismissed since its doctor assisted with his workers’ comp filing. It could be reasonably inferred that the decisionmakers who fired him did so in retaliation for his workers’ comp claim, even if the company doctor had originally assisted him in filing that claim. Moreover, allowing an employer’s assistance in filing a workers’ comp claim to necessarily preclude a later finding of retaliation would give employers free reign to contravene policies protected by common law.