Worker not ‘disabled,’ but has ADA claim

A former service advisor who said he was fired by a car dealership can sue the employer for disability discrimination, even though he did not show he was disabled due to his bleeding ulcer and anemia.

A Roanoke federal court refused to dismiss the ex-employee’s discrimination and retaliation claims under the Americans with Disabilities Act. The court said the employee’s account of the employer’s reactions to dismiss his health issues was enough to invoke the ADA’s protections for a worker “regarded as disabled” by an employer.

Roanoke U.S. District Judge Glen E. Conrad questioned whether the 4th Circuit would find that simple notice of an impairment would support a claim to be “regarded as disabled.”

The judge cited the employee’s allegations of an impairment, “continuous” communication with his employer about his treatment and the employer’s angry response when he returned to work, as enough to make the claim plausible.

Conrad partially denied the employer’s motion to dismiss in his Jan. 20 decision in Cash v. Magic City Motor Corp. (VLW 017-3-039).

Claims based on an employer’s perceptions are not the most common kind of ADA cases, but the new decision shows they can work. The ADA is “complex and everyone’s facts are absolutely unique,” said Roanoke lawyer Thomas J. Strelka, who represented the plaintiff, along with co-counsel Linda Strelka.

Employer response

Joseph Cash worked as a service director at Magic City Motor Corporation for three years, leaving for another job in 2013, according to his lawsuit. Magic

City rehired him in 2015 to work at their Lexington location, and he said he had received “positive work performance feedback” during his tenure.

He began hemorrhaging and felt ill on May 17, 2015, a day off from work, and requested leave to see a doctor the following Monday. Cash was diagnosed with a bleeding ulcer, leading to endoscopic surgery and various tests for his “chronic condition,” which included anemia, he alleged.

Cash said he or his wife continued to stay in touch with a supervisor, Jay Zane, throughout his leave. When he returned from leave on June 9, he presented a physician’s note requesting that he be allowed to work at Magic

City’s Roanoke site, or to work half-days until he improved. Zane told Cash he would be immediately replaced in Lexington, and his salary reduced from $1,250 per week to $800 per week, the complaint alleged.

Cash also said Zane complained about Cash’s absence from work in 2012, for hip replacement surgery.

Cash’s employer knew his prior leave, which had been covered by the Family and Medical Leave Act, “was bothersome” to the employer, Strelka said. “When he comes back with another health problem, he’s regarded as disabled,” he said.

The suit alleges Magic City refused Cash’s requests to return to the Lexington store and his prior salary after his condition improved. He said he left the company on June 19, because he could not make ends meet on the lower salary.

‘Actual’ disability

Cash failed to plead that he was actually disabled, the court said, because he did not link his ulcer and anemia to a substantial impairment of a major life activity.

He did, however, state a claim under the ADA’s expanded protection against an employer’s opinion that his impairment rendered him disabled.

Cash alleged a physical impairment, as his bleeding ulcer required surgery and left him unable to alleviate his anemia.

He also alleged clear notice of his impairment to his employer, through contact during his leave and conversations about his “chronic” condition when he returned to work, the court said.

The judge acknowledged the employer may yet have an affirmative defense if it shows that, mistakenly or not, it believed Cash merely had a “transitory and minor” impairment.

The plaintiff handily cleared the “adverse action” hurdle for his prima facie case.

“There is little question,” Conrad wrote, “that a reduction in salary or a reassignment with a reduction in salary can constitute an adverse employment action.”

The timing of that action – coming within less than a month between Cash’s illness and the permanent transfer and salary reduction – also suggested a causal connection necessary to state a claim.

Cash’s claims for discrimination and retaliation survived, but the court dismissed his claims for discriminatory discharge and failure to accommodate.

His situation at work was not so intolerable it amounted to a constructive discharge, and without pleading an actual disability, Cash could not sue for a failure to accommodate.

He nevertheless could sue for retaliation for his protected activity of requesting an accommodation.

“Unlike a claim for failure to accommodate, Cash need not be actually disabled when claiming that he was retaliated against in requesting an accommodation,” providing he had a good faith believe that he was entitled to request the accommodation, the judge said.