Employment Law Daily Caregiver may sue for retaliation based on advocacy for disabled adults in her care
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Wednesday, April 25, 2018

Caregiver may sue for retaliation based on advocacy for disabled adults in her care

By Robert Margolis, J.D.

A foster care provider has standing to bring retaliation claims under the Rehab Act against an agency that allegedly took action against her in response to her advocacy on behalf of the persons in her care, a federal district judge in Massachusetts has held. The court denied in part and granted in part the agency’s motion to dismiss (Hagenah v. Berkshire County ARC, Inc., April 16, 2018, Robertson, K.).

The defendant is a non-profit agency providing services to disabled individuals, including administering the Adult Family Care (AFC) program for MassHealth, the state agency that paid participating caregivers a per diem rate for services rendered to eligible MassHealth members based on the level of care they required. The plaintiff served as an AFC caregiver for two developmentally and physically disabled adults from May 15, 2014, until late October 2014. She brought federal and state discrimination and retaliation claims based on her gender and her advocacy for the rights of the adults in her care. The alleged retaliation took several forms, including requiring her to execute a second caregiver agreement in August 2014 that she alleged eliminated several of her rights as well as the right of the adults in her care. She also alleged retaliation due to her failure to execute that new caregiver contract, including threats, and ultimately culminating in the defendant removing the adults from her home and, thus, ending payments to her.

She brought an eight-count complaint against the defendant (as well as several individuals in the defendant’s management), which included claims for interference and retaliation in violation of Titles III and V of the ADA (Count I), violations of Title VII; violations of the Rehab Act, Massachusetts statutory claims for discrimination and retaliation, and state common law claims. The defendant moved to dismiss several claims in whole or in part.

Standing to sue for retaliation. The court held that the plaintiff could sue for retaliation under the Rehab Act based on her advocacy on behalf of the adults in her care, even though she herself is not disabled. The court relied on First Circuit authority, D.B. ex rel. Elizabeth B. v. Esposito, that the Act, “prohibit[s] retaliation against any person, whether disabled or not, for opposing disability-based discrimination made unlawful by th[at] statut[e].” There is nothing in the Act, or its underlying regulations, that preclude a non-disabled person from bringing retaliation claims that stem from the assertion of rights on behalf of disabled persons, the court held. As a result, a plaintiff suing for retaliation need not establish that she is “an otherwise qualified individual with a disability” to bring a claim.

The plaintiff alleged that she engaged in protected activity by advocating for “changes or improvements” in the services the defendant provided to the adults in her care, including with respect to their employment situations, reasonable accommodations for their disabilities, as well as access to counseling, treatment, and rehabilitation programming. She also helped them file complaints “under applicable law” to enforce their rights as disabled persons and facilitated their access to consultations with legal counsel. In response to this activity, she alleges that the defendant took adverse actions against her, including making false reports to MassHealth about the unsuitability of her home and the inadequacy of services she provided. The defendant also allegedly pressed her to sign the second agreement that she alleges significantly changed her rights, and when she did not sign, it delayed or withheld her pay. Ultimately, the defendant terminated her as a provider by removing the adults from her home, thus causing her to lose income. These allegations established the elements of her retaliation claim, the court held.

Intentional misrepresentation. The plaintiff brought state common law intentional misrepresentation claims, alleging (1) the defendant intentionally misrepresented the level of disability of the adults in her care, which had the effect of reducing the compensation due her for her services; and (2) the defendant orally misrepresented the terms of the second caregiver agreement to induce her to sign it. The court found the first misrepresentation theory to be viable but not the second.

The court found that the plaintiff pleaded with particularity the alleged misrepresentations of the adults’ condition, and thus rejected the defendant’s argument that it was given insufficient notice under the federal pleading standard for pleading misrepresentation claims. As for the misrepresentation claim based on the second caregiver agreement, such a claim requires reliance and since the plaintiff never signed the agreement, she could not allege that element. Thus, the court dismissed the misrepresentation claim to the extent it was based on the second agreement.

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