By Victoria Moran, J.D.
A federal district court in Indiana concluded that a diabetic certified nursing assistant (CNA) can move forward with her ADA claims; she provided sufficient evidence that she was terminated because she was diabetic and her employer did not want to accommodate her need for time off due to her diabetes, and not because of alleged drug use. The remaining claims failed for lack of evidence or other legal shortcomings, so the court granted the employer’s motion for summary judgment as to her Rehabilitation Act, state-law negligent drug testing, and negligent infliction of emotional distress claims (Vestal v. Heart of CarDon, LLC, June 15, 2018, Magnus-Stinson, J.).
The CNA worked for Lyons from January 13, 2016, until May 2, 2016, at which time she was terminated. At the time of hiring, she informed the employer she was diabetic. During her employment, she had four diabetes-related episodes causing her to leave work early. Thereafter, the CNA was issued a written warning threatening termination for absenteeism. Three weeks after the warning, and after notifying her employer that she had changed her diabetes medication, the CNA had a fifth episode. Two employees believed the episode was the result of drug use, not diabetes.
Positive drug test result? The CNA was asked to provide a urine sample for a drug test, but the parties differ on the facts regarding whether a sample was obtained. In discovery responses and deposition testimony, the CNA claimed she was unable to provide a urine sample, but in her summary judgment briefing she claimed she was able to provide a sample but the positive test result was fabricated because she did not use methamphetamine. The CNA also alleged that the testing did not comply with the employer’s drug testing policies or the drug test instructions. Following the incident at work, the CNA went home and was later called that day and informed her test was positive for illegal drugs and she was fired. No record of the CNA’s positive test exists, however.
The CNA claimed she has never used methamphetamine; she alleged the employer’s explanation for her termination was pretext and that she was actually terminated due to her diabetes and because the employer did not want to accommodate her diabetes. Her suit asserted claims under the ADA, the Rehab Act, and state-law claims for negligent administration of a drug test and negligent infliction of emotional distress.
ADA claims. Moving for summary judgment, the employer argued that the CNA could not establish a prima facie case of discrimination or failure to provide reasonable accommodations under the ADA, but the court disagreed, finding a genuine issue of material fact existed. The CNA provided evidence suggesting the reason for termination was pretextual and, when viewing the evidence in the light most favorable to the CNA, that the employer fabricated a positive drug test. That allegation created a genuine issue as to whether the employer honestly believed the CNA was using methamphetamine.
Moreover, the employer did not comply with its drug testing policies or the procedures in the drug test kit, and there was no record of the CNA’s positive drug test. Finally, there was evidence of suspicious timing, with the firing taking place three weeks after the written warning was issued. The court was not persuaded by the employer’s argument that the CNA never requested the accommodation of needing additional leave, because the ADA does not require the CNA to request a particular accommodation or follow a formal request policy. Rather, the CNA needed only to do enough to indicate the need for accommodation.
Remaining claims dismissed. The court granted the employer’s motion for summary judgment as to the CNA’s Rehab Act claim because liability is not triggered absent evidence showing the employer believed the CNA was impaired due to drug use, and the CNA provided no evidence, instead denying that she used drugs. The court sided with the employer on the negligent drug testing claim, finding that Indiana law does not impose a duty on private employers to perform drug tests with reasonable care, and the court declined to recognize a new duty or certify the issue to the Indiana Supreme Court. The court granted summary judgment as to the negligent infliction of emotional distress claim because the CNA did not establish that Lyons owned a duty of reasonable care related to the drug test or that a genuine issue of material fact exists regarding her claim of emotional distress.
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