Labor & Employment Law Daily Administrative assistant with pre-cancerous gene mutation plausibly alleges ADA disability
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Wednesday, July 8, 2020

Administrative assistant with pre-cancerous gene mutation plausibly alleges ADA disability

By Kathleen Kapusta, J.D.

To qualify as a disability, a condition must substantially limit a major life activity, not merely have the potential to cause conditions that do. Because the employee’s gene mutation may substantially limit her normal cell growth, her claim was dismissed prematurely.

Addressing what it believed was “an issue of first impression at the circuit level,” the Sixth Circuit found an employee plausibly alleged that her impairment—a pre-cancerous genetic mutation known as a BRCA1 mutation—substantially limited her normal cell growth as compared to the general population, and reversed the dismissal of her ADA claims. The appeals court emphasized the narrow aspect of the issue before it and its holding. “We do not decide whether [her] condition in fact falls under the ADA’s definition of a disability. We do not decide whether [her] pre-cancerous cells at issue constitute a substantial limitation on her normal cell growth. Nor do we decide whether those pre-cancerous cells were caused by [her] genetic mutation. Resolution of those issues requires consideration of matters beyond the four corners of [her] complaint” (Darby v. Childvine, Inc., June 30, 2020, Readler, C.).

Shortly after she was hired, the administrative assistant for a day care facility told her supervisor she had been diagnosed with breast cancer and needed time off for a double mastectomy. Because her surgery date fell within her 90-day probationary period, her supervisor purportedly told her he wasn’t sure whether the company would continue to employ her. At his request, she agreed to delay the procedure.

Unable to work. When she informed her supervisor and the facility’s co-owner of her new surgery date, they allegedly harassed her about the length of her leave. She was allowed, however, to use vacation and sick time to recover from the procedure. On the day she returned to work, her supervisor told her the facility had sent her a termination letter. The letter, which arrived several days later, explained that her employment had been terminated as of the last day of her probationary period due to her “unpleasant” attitude, dress code violations, and “being unable to work.”

Lower court proceedings. She then sued under the ADA and Ohio law. While the district court addressed the company’s motions to dismiss, it allowed discovery to proceed. Reviewing the employee’s medical records, the company learned that she had never been diagnosed with cancer but rather she had a family history of cancer and a genetic mutation known as a BRCA1 mutation. Responding to the employer’s renewed motion to dismiss, the employee, “in an effort to resolve [the] issue,” expressed a willingness to admit that her impairment was “a pre-cancerous genetic mutation, not advanced breast cancer.”

Admissions. She requested leave to amend her complaint to reflect eight admissions: (1) she attended a routine appointment with her OBGYN; (2) the OBGYN found an epithelial cell abnormality; (3) the doctor referred her for genetic testing; (4) the genetic testing resulted in a positive match for the BRCA1 gene; (5) the BRCA1 gene is an impairment that substantially limits normal cell growth; (6) because of the positive match, her doctors urged her to undergo a double mastectomy; (7) she elected to follow the medical advice and underwent the surgery; and (8) her employer terminated her employment very shortly after undergoing the procedure.

Absence of cancer. Finding no support for her assertion that the BRCA1 gene, like cancer itself, is a physical impairment that substantially limits normal cell growth, and viewing her genetic mutation as akin to “the absence of cancer,” the district court explained that “the definition of physical impairment” does not “include a condition that might lead to [breast cancer] in the future.” Accordingly, it granted the employer’s motion to dismiss.

Threshold issues. On appeal, the Sixth Circuit first rejected the employee’s contention that the court below was required to convert the motion to dismiss into a motion for summary judgment. The lower court, with the employer’s blessing, deemed the employee’s admissions to be part of her operative complaint and thus it did not consider matters outside the pleadings. Further, while the employee argued that her stipulation was only a “short summary” of her proposed amendment, she did not identify any further allegations she would have added through a more formal amendment. And because she offered her stipulation in an effort to “resolve” the tension between her medical records and her complaint, the district court’s resolution of that issue was done at her invitation, not over her objection, the appeals court explained.

Disability. Next, the court turned to the “key point of contention between the parties”—whether the employee’s genetic mutation is a disability under the ADA. At issue, said the court, was whether she plausibly alleged that her impairment substantially limits her normal cell growth as compared to the general population due to both a genetic mutation that limits her normal cell growth and a medical diagnosis of abnormal epithelial cell growth serious enough to warrant a double mastectomy. “Interpreting the ADA ‘to the maximum extent permitted by [its] terms’ in [the employee’s] favor, the answer is yes, for purposes of Rule 12(b)(6),” the court determined.

She alleged both a genetic mutation that limits normal cell growth and the growth of abnormal cells and that her condition was serious enough to warrant a double mastectomy. “Taking all of that together,” said the court, “it is at least plausible that [the employee] is substantially limited in normal cell growth ‘as compared to’ the general population.” Noting further that the ADA’s implementing regulations cite cancer as a condition that “at a minimum” qualifies as an impairment that substantially limits a major life activity, the court found “that language, to our eye, appears to set a floor, not a ceiling.” Thus it was plausible that her gene mutation and abnormal cell growth qualify as a disability under the ADA.

Discovery warranted. Not only could discovery, through expert medical testimony, help reveal whether the employee’s condition substantially limits normal cell growth, it would also allow the employer to test its factual allegation that “[t]he BRCA1 derived protein has nothing to do with ‘normal cell growth,’” and that it “instead… acts to repair damaged DNA in abnormal cell growth,” and thus “only increases the risk that potential DNA damage in the future might not be repaired correctly.”

Bragdon. The court found it noteworthy that both parties cited Bragdon v. Abbott, in which the U.S. Supreme Court held that infection with the HIV virus alone, even in the absence of the development of AIDS, was a disability under the ADA. “Whether a diagnosis of HIV is an apt analogy for the genetic issues experienced by [the employee] is a fair point of debate,” but Bragdon, observed the court, “was decided at summary judgment, not the pleading stage, thereby allowing the courts to consider more developed medical and factual evidence regarding the condition at hand. That is wise counsel here too.”

Agreeing with the court below that a genetic mutation that merely predisposes an individual to other conditions, such as cancer, is not itself a disability under the ADA, the appeals court found that was consistent with Bragdon’s holding that HIV qualifies as a disability under the ADA because of its immediate effect on white blood cells and bodily functions, not because it will eventually develop into AIDS. To qualify as a disability, said the court, a condition must substantially limit a major life activity, not merely have the potential to cause conditions that do. “By the clear terms of the ADA, a plaintiff must allege more than a genetic mutation capable of interfering with normal cell growth to survive a motion to dismiss. [The employee] has done so.” Although her factual allegations were sufficient to survive the employer’s motion to dismiss, far more will be required at summary judgment, the court noted.

Remaining aspects of claim. The court also found she sufficiently alleged she was qualified to perform her job’s essential functions with a reasonable accommodation and that her termination would not have occurred but for her disability. Further, she alleged that immediately upon notifying her supervisor of her condition and surgery, he suggested that she might be terminated as a result; after she rescheduled her surgery, she was “harassed” by her supervisors due to the length of her leave request and, immediately after returning to work, she was notified of her termination, which had been planned for the day before her surgery even though she was asked to get a medical release to return to work. These allegations, said the court, were enough to make a causal link between her disability and her termination at least plausible.

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