Labor & Employment Law Daily Abnormal cell growth in benign tumor causing ocular symptoms was a disability
Friday, November 22, 2019

Abnormal cell growth in benign tumor causing ocular symptoms was a disability

By Jeffrey H. Brochin, J.D.

There was also evidence suggesting that the employee’s supervisor—and decisionmakers in his termination—knew of his tumor, knew he would start treatment soon, and terminated him as a result.

Denying summary judgment to a technology company on a former IT administrator’s ADA claims based on the company’s argument that the employee was not disabled and therefore not covered by the ADA, a federal district court in Maryland found that the benign brain tumor (meningioma) that caused his double vision and other eye problems was an “abnormal cell growth”—impairing a major life activity—that clearly constituted a disability (EEOC v. Optimal Solutions & Technologies, Inc., November 19, 2019, Xinis, P.).

Disclosure of medical condition. The employee had spent years working in the IT field, including with SharePoint applications, applied to work for Optimal Solutions and Technologies (OST) and was hired as senior SharePoint Administrator. Like all new employees, he was subject to a six-month probationary period. He had struggled for six years with eye problems that included double vision and a drooping eyelid, and just before he started his new job, he had been diagnosed with a meningioma (a benign brain tumor) as the cause of these problems. Treatment was set to begin about four months after he was hired.

Shortly after he began working for OST, he shared with his supervisor that he had a brain tumor. (The supervisor denied that the conversation took place.) The employee informed his supervisor that he would schedule treatment on his own time, so he would not need to miss work, and that the targeted radiation would not have any side effects.

One of the employee’s co-workers was widely known for his abrasive and combative demeanor, and the supervisor had allegedly spoken of firing the problematic co-worker at various times, even mentioning to others that he had planned to have the employee replace the combative co-worker. Three months into his probationary period, the employee, the combative co-worker, and another employee engaged in a heated email exchange, which took place on the client’s email system and therefore was accessible to the Employer’s client.

Following this incident, the two other employees received verbal warnings, but the employee—who was still probationary—was terminated. He filed a formal charge of disability discrimination with the EEOC, which pursued the claim, alleging the employee was fired on account of an actual and perceived disability in violation of the ADA.

Determining disability. OST first contended that the employee was not disabled, while the EEOC argued that he was disabled applied because the brain tumor substantially limited normal cell growth—a major life activity. Evidence from the employee’s treating neurosurgeon explained that the tumor, although benign, was caused by unregulated or poorly regulated cell division leading to the employee’s double vision and the other problems. The court agreed. The impairment of normal cell growth, which was found to be one such major life activity, rendered the employee disabled within the meaning of the ADA, and the employer’s motion for summary judgment on that issue was denied.

Regarded as disabled. Although the court found as a matter of law that the employee is disabled, it also reached the question of whether OST had regarded him as disabled, finding a genuine fact dispute fact as to whether his supervisor knew of the employee’s condition before he was terminated. There was testimony from four employees that he did know, with one employee vividly recalling the supervisor questioning whether the employee could do his job because of the tumor. The supervisor also allegedly told that employee he wondered whether his original plan to replace the difficult co-worker with the fired employee “could now come to fruition.” To the court this was “powerful evidence” from which a jury could conclude that the supervisor regarded him as disabled.

Did decisionmakers know? OST also contended that there was no evidence any decisionmakers who fired the employee knew about his tumor at the time, but the court disagreed, citing evidence that the supervisor played a significant role in firing the employee, knew about his tumor, and expressed concern that the employee would not be able to get his job done as a result. Further, citing evidence the employee was fired within the month after his supervisor learned of the tumor and just weeks before the start of the employee’s treatment, the court found close temporal proximity sufficient to deny summary judgment.

Pretext. Although OST had evidence that the employee was viewed by some as lacking necessary technical skills, and that he behaved poorly in the email exchange, there was contradictory evidence that the employee could do his job well; plus, no contemporaneous documentation supported rationale that the employee could not handle the technical aspects of his position. His prior experience in IT and SharePoint further undermined OST’s contention that he struggled in his new role.

Finally, a jury could reject the contention that the employee was fired simply because he was on probation at the time, since all OST personnel were at-will employees, and the difficult coworker, who held the same position as the employee, had a documented “history of bad behavior that would have put him in serious jeopardy of termination even under the progressive discipline policy. Summary judgment in favor of OST accordingly was denied.

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