Virginia Lawyers Weekly VA Lawyers Weekly
A hospital security officer who was fired for missing assigned work shifts after he repeatedly requested a written copy of his work schedule as an accommodation of his dyslexia can try his claims of discrimination/retaliation and reasonable accommodation under the Americans with Disabilities
Act, a Roanoke U.S. District Court holds.
Defendant hospital agrees that plaintiff had dyslexia – a disability as defined in the ADA – and that he was discharged.
According to defendant, as documented by the Performance Improvement Plan (PIP), plaintiff was not fulfilling its legitimate expectations and a written copy of the work schedule could only possibly address one deficient area – his failure to attend work due to not reviewing the updated schedule.
Defendant argues that a written copy of the work schedule could not enable plaintiff to meet its legitimate expectations in his other deficient areas, so he is not a “qualified person with a disability” because he could not perform his essential job functions with or without an accommodation. Defendant asserts that, in addition to missing work on June 5, he did not improve his performance sufficiently while on the PIP, so he was terminated.
PIP records
Defendant contends, without any supporting case law, that any employee on a PIP cannot be deemed to be meeting his employer’s legitimate expectations. The many deficiencies set forth in the PIP provide powerful evidence that plaintiff was not meeting defendant’s legitimate expectations.
In a light most favorable to plaintiff, however, a reasonable jury could find that defendant’s legitimate expectations were that plaintiff could sufficiently improve given retraining and that he was performing his job well enough to continue to be employed – and thus was qualified – at the time the PIP began. Further, the training documentation following implementation of the PIP indicates progress in the short time plaintiff was on the PIP. The only deficiency noted while he was on the PIP was his failure to attend work as scheduled on June 5. While failure to attend work is often a legitimate reason for termination, it is that very deficiency that is directly related to plaintiff’s dyslexia and his repeated and denied requests for a written copy of his schedule.
The court concludes there are genuine issues of material fact regarding whether plaintiff was a qualified individual, whether he was meeting defendant’s legitimate expectations and whether the circumstances of his termination raise a reasonable inference of discrimination. Under the appropriate standard, a reasonable jury could find a prima facie case of disability discrimination in favor of plaintiff. A jury could find that plaintiff was improving under the PIP and that it was only his failure to attend work on June 5 – the only deficiency related to his unaccommodated disability – that caused his termination.
Plaintiff’s claim for reasonable accommodation also survives. A jury could determine that he may not have missed work on June 5 if he had been given a written copy of his work schedule as requested. Likewise, the request for accommodation can constitute protected activity and plaintiff’s retaliation claim can go forward.
Defendant’s motion for summary judgment is denied.
Wagoner v. Lewis Gale Medical Center LLC (Dillon) No. 7:15cv570, Dec. 7, 2016; USDC at Roanoke, Va.; Thomas E. Strelka for plaintiff; Susan C. North for defendant. VLW 016-3-607, 10 pp.
