Fired day after genetic testing, following cancer treatment, employee to get trial on ADA claim

By Kathleen Kapusta, J.D.

Fired for insubordination one day after taking medical leave for genetic cancer testing, and after having previously taken more than 12 weeks of leave for breast cancer treatment, a health services company employee can proceed to trial on her ADA disability discrimination claim, a federal district court in Pennsylvania ruled, denying summary judgment in part. Her claims under the Pennsylvania Human Relations Act and the Genetic Information Non-Discrimination Act failed, however (Carroll v. Comprehensive Women’s Health Services, September 27, 2017, Munley, J.).

Diagnosed with breast cancer in November 2001, the medical records department employee informed her officer manager and was granted time off work for treatment, which included a right breast mastectomy in 2011, a left breast mastectomy in February 2012, fitment for breast implants, a procedure to place the breast implants, and genetic testing to determine whether she had a cancer gene.

Missing file. The day after her genetic testing, the employee learned that a patient’s chart was missing and began looking for it. Although she looked in a doctor’s office, she was unable to locate it. Her office manager, however, subsequently found the chart on the doctor’s credenza. Frustrated with the employee, she summoned her to the doctor’s office, purportedly told her she was tired of having to do her job and that patient files were not supposed to “go missing.” According to the manager, the employee responded by saying “find someone else to do the job” and walked away. Although the manager purportedly called out the employee’s name, she continued to walk away. Later that day she was called to a meeting with the office manager and two doctors where she was fired by the doctors for insubordination.

Cancer was disability. Moving for summary judgment on her ADA claim, the employer argued that the employee’s cancer, which was in remission, was not a disability without a showing of a significant limitation on a major life activity. While the employer might have had an argument prior to the enactment of the ADAAA, observed the court, the amendments define major life activities to include “normal cell growth” and cancer is abnormal cell growth. The ADAAA also clarified that an episodic impairment or one that is in remission is a disability if, when active, it would substantially limit a major life activity. Thus, cancer qualifies as a disability.

Knowledge. The employer next argued that the doctors who terminated the employee did not know of her cancer treatment, genetic testing, or required accommodations and therefore did not fire her because of her disability. Although she never personally told them about her cancer while in their employ, she told 13 other employees and a third doctor that she had cancer. Further, the office had only 40-50 employees at the time, one of the doctors who fired her knew everyone in the office by name, and the employee had taken more than 12 weeks of medical leave for her cancer treatment.

“Hypothetically,” observed the court, a reasonable jury could believe the office manager “had it” with the employee’s time off for medical reasons and wanted to fire her. The employee’s inability to find a chart, together with her subsequent verbal spat with the manager, could have provided the manager with a convenient excuse for terminating her. When combined with the employee’s 13 years of employment purportedly without any disciplinary issues and the employer’s failure to follow its progressive discipline protocol calling for counseling as the first step, the court found multiple fact issues, so summary judgment was inappropriate on this claim.

PHRA claim. As to the employee’s state-law disability discrimination claim, the court pointed out that the PHRA has no counterpart to the ADA’s rule regarding episodic impairments or those in remission. Thus the issue was whether she could show she had a disability that substantially limited any major life activity at the time she was fired. She testified that she was diagnosed with anxiety and depression and was withdrawn and anxious about her cancer recurring. Further, she claimed that because the side effects of her anti-anxiety medication included headaches and nausea, she did not always take it. Finding no evidence that she was fired because of her anxiety and depression, however, the court found she failed to establish a prima facie case under the PHRA.

GINA. Finally, the court granted summary judgment against her GINA claim, noting that she was fired 13 days before she received her genetic testing results, which revealed that she did not have a cancer gene. Thus, said the court, she could not have been fired because of information from her genetic tests as the results of those tests were not yet known at the time of her termination.

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