About Us  |  About Cheetah®  |  Contact Us

GINA, ADA claims advance for paramedic fired soon after requesting accommodation

By Lorene D. Park, J.D.

Noting the close temporal proximity between an employee’s request for an accommodation for his leg injury and his termination; inconsistencies between his termination letter, which did not specify reasons for the decision, and similar letters sent to other workers; and questions on the credibility of his supervisor, who claimed the employee was fired for using a work computer to develop his medical marijuana business, a federal district court in Arizona denied summary judgment as to both parties on his ADA and Rehab Act claims. His GINA claim also advanced because neither party sufficiently briefed the issues of whether the doctor who performed a physical was an “agent” of the employer, whether the employer’s receipt of his medical form was inadvertent, and whether the information was actually “genetic information” as defined under GINA (Maxwell v Verde Valley Ambulance Co, Inc, September 10, 2014, Bade, B).

Due to severe leg injuries from a motorcycle accident years before he started working for the employer as a paramedic, the employee took over-the-counter pain medication regularly and did a weekly exercise program. He alleged that he has drop foot, a limp, and regularly “trips over his toes.” He also used a knee brace whenever he expected there was “above average danger that he could injure himself, step wrong, twist wrong, or do anything else that concerns him.” In addition, he suffered from pain, inflammation, numbness, and lack of range of motion. Despite these issues, the employee did well enough in his job to be promoted to captain paramedic.

Marijuana business. In January 2011, the emergency medical service (EMS) chief learned the employee was using a computer assigned to the captains to create a plan for a medical marijuana business, Verde Valley Medicinal Supply (VVMS). She told him that this activity violated company policy against personal use of the computer and told him to remove the documents. On January 26, the employer’s board chair sent the employee a letter advising him that the board of directors opposed any employee being involved in a medical marijuana business and he would be “terminated immediately” if the employer learned he was still involved in such a business.

In April 2011, the employee was issued a letter of reprimand for failing to provide a report. In May, the employer moved to a new building and, soon thereafter, the chief found computer files relating to VVMS on the captains’ computer. She claimed that she decided to fire him at that point. Meanwhile, she learned the employee was telling coworkers he was going to sue if he fell down stairs due to a disability. She met with him on May 16 and he advised her he was disabled due to his leg and needed a first-floor bedroom. She consulted the board chair, who advised that they send him to a doctor to determine if he was disabled before proceeding with his discharge.

The employee was sent to a physician, who determined that he was qualified to perform his duties and sent a letter to the employer stating as much. After receiving the letter on June 1, the chief terminated the employee. He filed suit alleging discrimination and failure to accommodate under the ADA and Rehab Act, and he asserted a GINA claim as well.

Disability under ADA, Rehab Act. Moving for summary judgment, the employer argued that the employee did not have a disability and his ADA and Rehab Act claims failed. Because there was no dispute that his leg injury was a physical impairment or that walking is a major life activity, the court focused on the “substantially limits” test under the ADAAA. Finding a question of fact, it noted the ongoing pain, inflammation, numbness, and other issues, as well as the continued medication, and the doctor’s conclusion that the employee had “residual disability in his lower leg,” including “numbness and weakness.” While the employer noted the doctor’s report did not confirm many of the symptoms, and coworkers had observed the employee playing sports and running up and down stairs, that was not enough for summary judgment. The employee’s partial motion for summary judgment was also denied in light of the disputed facts.

Causation. The employer also sought summary judgment on the discriminatory termination and retaliation claims under the ADA and Rehab Act, arguing that the employee could not show causation because it made the termination decision before he claimed a disability. To the court, the date that the chief decided to fire the employee was unclear because she testified that she decided to fire him for improper computer use before he requested a first-floor bedroom, but then she testified that after that decision, she put him on administrative leave and conferred with the board chair about “whether or not to terminate” him. When asked when the “decision to terminate” was actually made, she responded that “we did it on June 1.”  Given evidence that the employee disclosed his disability on May 16 and was fired two weeks later, the court found enough evidence to make a prima facie showing of causation.

Pretext. While the employer proffered legitimate reasons for the employee’s discharge, such as the marijuana business materials on its computers, his prior disciplinary history, and dissension he caused among coworkers based on threats to sue the employer, the court found questions of fact on whether these were pretextual. In addition to temporal proximity, it noted inconsistencies in the explanations provided by the employer for the discharge. The termination letter did not specify a reason for the employee’s termination, other than stating that the employer was an “at-will employer,” and the chief didn’t give him a reason, stating only that he was at-will. Further, the chief testified that letters issued to other employees in 2011 and 2012 specified reasons for their terminations. There was also an inconsistency in that the employer provided specific reasons for the discharge in its EEOC position statement.

There was also evidence challenging the credibility of the chief’s testimony that VVMS documents were found on the captains’ computer in May 2011. She could not recall if the documents were on an “old” computer in the old building or a “new” one in the new building, could not determine when the documents were last modified or when they were placed on the computer, and did not record the specific date in May that they were removed from the computer. For these reasons, summary judgment was denied on the discriminatory discharge claim.

Retaliation. The employee’s claim that he was fired in retaliation for requesting a reasonable accommodation in the form of a first-floor bedroom also survived summary judgment. He engaged in protected activity when asking for the accommodation, his termination was an adverse action, and the court already found questions of fact as to the timing of the termination decision and whether temporal proximity established causation.

GINA claim. When the chief sent the employee to the physician to determine if he could do his job, the employee completed a “Health and Occupational History and Physical Exam” form. The form included a table labeled “family history,” and listed various diseases with a place for the employee to indicate “yes” or “no” and then a place to identify the affected family member. On the line for “cancer,” he checked “yes” and wrote “grandpa.” According to the employee, the employer violated GINA by requiring him to disclose “genetic information” on this form.

Specifically, the employee alleged that the employer violated 42 U.S.C. Sec. 2000ff-1(b) which makes it unlawful for an employer to “request, require, or purchase genetic information” on an employee or his family member. The EEOC regulations interpreting GINA refer to requesting, requiring, or purchasing genetic information as “acquisition” of genetic information, which includes an employer “making requests for information about an individual’s current health status in a way that is likely to result in a covered entity obtaining genetic information.”

Inadvertent acquisition. The regulations also provide that the general prohibition against acquiring genetic information does not apply where a “covered entity inadvertently requests or requires genetic information.” However, the acquisition of genetic information is generally not considered “inadvertent” unless the covered entity directed the health care provider not to provide genetic information. The failure to provide that direction does not prevent an employer from establishing that “receipt of genetic information was inadvertent if its request for medical information was not ‘likely to result in a covered entity obtaining genetic information.’”

In this case, the doctor testified that the medical history form would never be made available to employers, which only receive a letter stating if an employee can perform job duties. However, after the employee filed a charge of discrimination, the chief requested a copy of the June 2011 letter and “inadvertently” received, in response, documentation that included the family history.

Both parties moved for summary judgment on the GINA claim. The employer argued that its acquisition of any genetic information was inadvertent and it was not liable under GINA. The employee argued that the employer violated GINA by failing to direct the doctor and the center where he had the physical “not to disclose” genetic information. Denying both motions, the court found that the parties’ briefing fell short. Though both cited regulations, the employer did not explain how they applied to its acquisition of the employee’s information and the employee did not discuss the elements of a GINA claim based on a violation of the cited regulation.

GINA definitions not addressed. Moreover, neither party addressed whether the information that the employer received was in fact “genetic information” as defined by GINA. The fact that an individual family member has been diagnosed with a disease is not considered “genetic information” if such information is “taken into account only with respect to the individual in which such disease or disorder occurs and not as genetic information with respect to any other individual.” Here, although the form requested family medical history, nothing indicated the information was “taken into account” with respect to the employee. His disability was based on an injury, not a manifestation of a “disease or disorder,” the court averred.

Finally, though the employee argued that the center where he had his physical was an “agent” of the employer, he did not cite any authority addressing the definition of “agent” incorporated into GINA and his briefing did not address the elements of his GINA claim. He therefore did not meet his initial burden of showing the absence of a dispute of material fact. Similarly, the employer asserted that a “private physician” is not an employer under GINA but it did not address the statutory definition of “employer,” which includes an employer’s agent, and it did not explain why it was entitled to judgment as a matter of law. For these reasons, summary judgment was not warranted for either party.

Punitive damages not available. The employer had more luck on its assertion that punitive damages were not authorized under Sec. 1981a(b), which allows such damages only where the employer engaged in discriminatory acts “with malice or with reckless indifference” to the employee’s rights. The employee did not dispute that he had to meet that standard but argued that punitive damages were appropriate because the chief “had attended more training than any other employee at Verde Valley and that [she] had provided ADA training to other” employees.

Granting judgment as a matter of law for the employer on this issue, the court explained that the chief’s training might show that she was familiar with antidiscrimination laws but it did not establish that when she fired the employee she acted “in the face of a perceived risk” that her actions would violate federal law. Knowledge of antidiscrimination laws is simply not enough to show malice or reckless indifference. Accordingly, punitive damages were not authorized here.