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Whether applicant with Down syndrome was deliberately thwarted in hiring process is jury question

By Kathleen Kapusta, J.D.

A company failed to show an applicant with Down syndrome could not perform the essential functions of a dietary aide position, with or without accommodation, a federal district court in Florida ruled, finding that a reasonable jury could conclude she was qualified for the job. Denying summary judgment against her ADA and state-law disability discrimination claims, the court found fact issues as to whether she failed to submit her fingerprints as required, and thus stopped the hiring process, or whether the company deliberately refused to allow her to submit them (Henderson v. Sovereign Healthcare of Tuskawilla, LLC, April 17, 2017, Byron, P.).

Enrolled by her mother with Quest, Inc., a company that offers vocational training and job placement services to individuals with disabilities, the applicant was assigned a job coach, who contacted the defendant company regarding a position as a part-time dietary aide. The applicant applied for the job and was interviewed by the dietary manager, who advised her that she needed references and a background screening. When the company’s HR coordinator was unable to find her fingerprints through a web portal search, she called her home to schedule an appointment to be fingerprinted. Her mother answered and informed the coordinator that her daughter had Down syndrome. The coordinator then purportedly became “very rude” and stressed that she wanted to speak with the applicant alone.

Not in the office? The applicant subsequently called the coordinator and was told to come in the next day for fingerprinting, but to call first. When she called the next morning, she was told the coordinator was out for the day. Her mother then called without identifying herself and was told that the coordinator was on the phone. Although she left a voicemail for the coordinator, it was never returned. The applicant called again and went to the office in person but was told the coordinator was not in. The applicant and her mother left several more voicemail messages during the day that were not returned.

Several days later, the mother learned that the dietary manager had resigned. She then called the applicant’s job coach and told her she did not want the applicant working there anymore, but the coach purportedly convinced her to allow Quest to pursue completion of the hiring process. When no one contacted the applicant to complete the fingerprinting process, the mother, as power of attorney for her daughter, filed an EEOC charge. Shortly after that, the company contacted Quest, requesting that they send someone to work in food services and that the applicant was the first choice. The mother then told the job coach that her daughter would not be taking the job. She subsequently sued under the ADA and state law on her daughter’s behalf.

Qualified individual. The company argued that the applicant was not qualified for the dietary aide position because she stopped the hiring process before providing fingerprints. In addition to finding a fact question as to whether she failed to submit her fingerprints or whether the coordinator refused to allow her to submit them, the court pointed out that she applied for the position and was interviewed by the dietary manager, who found that she performed well. The applicant then produced the required references and attempted to set up a fingerprinting appointment. Based on these facts, a reasonable jury could find she was qualified for the job.

In arguing that the applicant voluntarily withdrew her application, the company relied on the affidavit of the corporate HR manager who claimed her job coach told the HR coordinator her mother would not allow her to accept the job. However, the mother claimed she did not tell the coordinator this until after she had already filed the EEOC charge against the company because the job coach had convinced her to let her daughter continue with the hiring process.

Progress notes. And while the job coach’s process notes from mid-April indicated that the mother decided her daughter would not be taking the job, the court found a fact dispute remained as to whether the mother actually told her this in April. Notably, said the court, the coach’s progress notes did not reflect that she spoke to the coordinator in mid-April or indicate that she ever told the coordinator that the applicant would not be accepting the job.

There was also evidence to support the assertion that the coordinator discriminated against the applicant based on her disability, said the court, noting that before the coordinator had any knowledge the applicant was disabled, she conducted a preliminary background check and when she could not find her fingerprints attempted to contact her about scheduling an appointment. Upon learning that she was disabled, however, the coordinator made no further attempts to schedule an appointment for her, despite the applicant’s and her mother’s multiple phone calls and trip to the office. Thus, a reasonable jury could find the company discriminated against the applicant on the basis of her disability by thwarting her ability to complete the hiring process.

Pretext. The court also found evidence calling into question whether the mother withdrew the application as the company contended. While she was hesitant to let her daughter continue with her application because of how she had been treated, she claimed she ultimately agreed with the coach’s recommendation to allow the hiring process to proceed. Further, as already discussed, there was evidence suggesting that after learning the applicant had Down syndrome, the coordinator acted to undermine her employment application.

Liability. Finally, the court rejected the company’s contention that it could not be held liable for the coordinator’s conduct because she was not authorized to hire anyone on the company’s behalf. Here, the court found that it appeared she acted on the company’s behalf during the hiring process and played a pivotal role in its decision not to hire the applicant. Thus, a fact question remained as to this issue.