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HIV-positive manager put on PIP, denied accommodation advances disability bias claims

By Brandi O. Brown, J.D.

A nursing home food service manager who had HIV and cancer, was put on unpaid leave after requesting accommodations, and then told that he would have additional cooking duties when he returned, avoided summary judgment on his disability discrimination, retaliation, and failure-to-accommodate claims under the Washington Law Against Discrimination. A federal district court in Washington explained that unpaid leave could be viewed as an adverse employment action and there was evidence that the employer denied some reasonable accommodations and failed to follow through on others it did agree to provide (Edman v. Kindred Nursing Centers West, LLC , November 21, 2016, Rothstein, B.).

HIV affecting his disposition? The food services manager had informed his supervisor of his HIV-positive status, In April 2013, his health noticeably deteriorated, he lost weight and his supervisor and coworkers expressed concern. According to the employee, his declining health affected his behavior at work, leading to a couple of arguments that resulted in him receiving warnings. In late July, the employee had taken a day off for an important doctor’s appointment but had to return to work for a surprise survey by the state health department. Although he was very ill, he worked long hours during the week the survey took place. One of the surveyors apparently noticed the employee yelling at a staff member and expressed concerns. One deficiency was found in an area over which the employee had control, and 11 other deficiencies were found in other areas. After the survey, the employee saw his doctor, who suggested medical leave.

Put on PIP, was only manager disciplined. When the employee returned from leave he was placed on a Performance Improvement Plan (PIP). The plan noted the employee’s behavior during the state survey as the cause. The employee commented that he was suffering a breakdown in his immune system at that time and was suffering from multiple infections and a lack of sleep. His supervisor told him his poor health was “not an excuse.” The employee was the only person disciplined as a result of the survey. Another manager, whose department received nine citations, was not disciplined.

Cancer diagnosis, accommodations rejected. In mid-October the employee was also diagnosed with cancer. His physician testified that his diagnosis would have qualified him for social security disability, but that he could work with accommodations. However, when the employee requested accommodations, including intermittent leave for the purposes of treatment, he was placed on unpaid leave and required to exit the facility. He was also told he would have added cooking duties when he returned—the first time he had been tasked with cooking in the two years he had worked for this employer. He asked to return several times but was unable to do so until early 2014 because of the wrangling over accommodations. He returned to full-time, but the promised accommodations were not fully provided. As a result, his health deteriorated again and, five months later his blood tests revealed a loss of control over his health conditions.

Failure to accommodate. After reviewing the evidence, the court denied the employer’s motion for summary judgment on the employee’s failure-to-accommodate claim under the WLAD. There was evidence that the employee could perform the essential functions of his job. Although the employer tried to make much of the fact that his physician testified that his cancer (Kaposi’s Sarcoma) was a disability within the meaning of the Social Security Act, the employee never actually filed an application for benefits and, in fact, he did perform his essential functions before and after his diagnosis.

Also, while the employer claimed it provided reasonable accommodations, the employee presented evidence that those accommodations were ineffective and that the cumulative effect of this ineffective accommodation was a worsening of his symptoms. For example, the uninterrupted lunches that were a promised accommodation were often interrupted because he was not allowed to use a “do not disturb” sign. He was also still made to work late and come in early, which did not allow him sufficient rest as required.

Retaliation claim. As for the retaliation claim, the court explained that unpaid leave could be seen as an adverse employment action because a jury could find that it would dissuade a reasonable working from requesting accommodations. The same was true for giving the employee additional duties upon his return. Moreover, the employer admitted that the employee was placed on unpaid leave because of his accommodation request, which made it a “substantial factor” in the decision. Even had the employer not admitted this, the court explained, temporal proximity would have created a triable issue.

The employee also presented evidence of pretext to rebut the employer’s reasons for its decisions, including the argument that had it allowed the employee to continue working without an initial agreement on accommodations, it would have been penalized for doing so. In that regard the employer’s stated reasoning was inconsistent with its “ordinary course of conduct” and policies—the employer was unable to point to any other incident in which an employee who was able and willing to work was placed on involuntary and unpaid leave other than for disciplinary reasons.

Discrimination. Likewise, the employee’s disability discrimination claim would proceed based on comparator evidence. In that regard, the non-disabled manager whose department received nine citations as result of the state survey but was not placed disciplined was evidence that satisfied the employee’s minimal burden with regards to the prima facie case. In fact, that same manager had yelled at the family of a resident, which resulted in a call to the state, and yet was not put on a PIP or given a written warning.