HIV+ Disability Discrimination case will proceed

Disability Discrimination

HIV positive employee’s disability discrimination, failure to accommodate claims will proceed, court rules

A Washington court has ruled that an employee’s claims of disability discrimination, failure to accommodate, retaliation, and wage withholding will proceed. The Defendants in the case, Kindred Nursing Centers West, had filed for summary judgement on said claims in hopes of having them dismissed.

The case was originally filed in 2014 by David Edman. He began working for the employers in July 2011 as their Food Services Manager. He worked without incident from his hired through the receipt of a new direct supervisor, Sandra Hurd. She became the facility’s new Executive Director in November 2012, and Edman reported to her directly. It wasn’t until April of 2013 however that Edman disclosed to Hurd that he is HIV positive.

In summer of 2013, Edman’s health began to deteriorate. He began losing a significant amount of weight, and his co-workers grew concerned about his wellbeing. That July, he received a written warning from Hurd regarding two arguments he had with staff members – one with a nurse, and one with a vendor. Edman admitted he had raised his voice, but stated his disposition was being negatively affected by his illness.

On July 29th, Edman had the day off from work for a previously scheduled doctor’s appointment. He received a call from Hurd however, telling him that the Department of Health & Human Services dropped by unexpectedly to conduct their annual survey. Edman claims that he told her he was ill and on the way to the doctor’s, but she insisted that he come in to work anyway. Hurd however claims that she did call to tell him about the survey, but did not ask him to come in, and rather said that she could handle it without him. Regardless, Edman cancelled his doctor’s appointment and worked from that day through August 6th at the conclusion of the survey. During that time, one of the surveyors complained to Hurd that Edman seemed “focused only on the timing of the meals, and not the accuracy or quality”, and also that he was yelling at staff members. Despite this complaint and his illness, Edman’s area received only one mark of deficiency. Hurd admitted he had “worked long hours throughout the week of the survey without asking for time off or accommodations for his illness”.

With the survey concluded, Edman was able to finally see his doctor on August 8th. At this appointment, his doctor Thomas Smith suggested that he go on immediate medical leave. Edman’s request to his employers for leave was granted, and he began receiving short term disability benefits.

Edman returned to work on October 1st, 2013. He had previously requested to work part-time for the first two weeks he was back, which was granted. However, on his first day back he received a written warning and was put on a Performance Improvement Plan for his behavior during the survey. Edman did not object to the behavior, citing “multiple infections and lack of sleep” as the cause of the issues. Hurd responded allegedly by saying that his medical conditions were “not an excuse”. Edman was the only employee disciplined because of the survey, despite the fact that the manager of another area received nine citations.

Later that month, Edman’s health took another serious hit as he was diagnosed with Kaposi’s Sarcoma – a form of cancer. Though he qualified under social security as having a disability, he would still be able to work without accommodations. On October 29th, he requested temporary accommodations while he was being treated as well as intermittent FMLA (Family Medical Leave Act) leave. Upon hearing his requests, Hurd allegedly replied, “No, I can’t do this. You still have to do your job.” Two days later, Edman, Hurd, and HR Director Elaine Revelle met. There, they told Edman that they would not be able to provide the requested accommodations and he would instead be placed on unpaid leave while they discussed the situation. To add insult to injury, he was asked to leave the building thereafter.

During his leave, Edman sent several emails asking for the process to be sped up as he had no source of income. After providing additional information regarding his accommodations and an updated note from his doctor, some of Edman’s accommodations were finally granted on November 22nd. However, the acceptance came with the expectation for Edman to have cooking duties added to his work load. They stated this was necessary due to budget cuts. It wouldn’t be until December that more of his accomodations were granted, intended to allow him uninterrupted lunch in his office with the door closed and not having to interview residents. Other accommodations he had requested were denied, such as a temporary moratorium on changing dining services department operations, staffing, or duties, two weeks’ notice of any such changes, and his request to transfer to a position in the Central Supply Department, which would not require cooking. In place of the last request, the employers agreed to remove cooking from his duties.

On December 9th, Edman sent an email to his attorney describing the great stress the situation had caused him, and expressed an interest in “resolving his employment” with Kindred. The following day, an offer letter was sent to the company, requesting the possibility of his resignation “in exchange for certain compensation and fees”. This offer was rejected by the employers, and instead the parties continued communications about Edman returning to work.

In January 2014, Edman’s doctor released him to return to work with several accommodations, including:

  • Intermittent FMLA leave as needed
  • Uninterrupted 30 min lunch in his office with the door closed
  • 8 business days’ notice prior to deadline for any assessment, planned event, or staffing modification
  • An effort by all parties to keep stress levels low
  • Adequate rest between shifts

On January 6th, Edman returned to work full time but states that the accommodations outlined were not met, which caused his health to deteriorate once again. Despite this, he continued working for over another year before finally going on his last medical leave due to a work related injury. After his leave is when he initiated the lawsuit for claims of disability discrimination, failure to accommodate, retaliation, and wage withholding.

 

Sources:

http://hr.cch.com/eld/EdmanKindred112116.pdf

http://www.employmentlawdaily.com/index.php/news/hiv-positive-manager-put-on-pip-denied-accommodation-advances-disability-bias-claims/

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