Labor & Employment Law Daily Jury question whether Shriners coerced employee into rescinding job acceptance after cancer diagnosis
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Wednesday, May 13, 2020

Jury question whether Shriners coerced employee into rescinding job acceptance after cancer diagnosis

By Kathleen Kapusta, J.D.

The employee claimed Shriners told her it could not “secure her job” if she had more than three absences.

Whether an employee, “jobless and just diagnosed with invasive breast cancer,” voluntarily resigned from a position she had just accepted with Shriners Hospitals for Children, or whether the hospital, known for its beneficence toward disabled children,” coerced her into resigning upon learning of her diagnosis will be up to a jury to decide, a federal district court in Kentucky has ruled, denying summary judgment against her ADA claims. However, because the Kentucky Civil Rights Act more narrowly defines a qualifying disability, the court found it afforded her no relief as a matter of law (Watkins v. Shriners Hospitals for Children, Inc., May 8, 2020, Wier, R.).

Job offer. After more than 10 years with the University of Kentucky, working in mostly administrative support positions, the employee resigned in January 2018 to seek a job in her degree field; her last day would be February 22. She then applied and was interviewed for a revenue cycle coordinator position with Shriners. After a second interview with the revenue cycle manager she was offered the job, which she accepted on February 5.

Diagnosis. Around that same time, she underwent a mammogram, which revealed a likely cancerous mass. Although she asked her university supervisor if she could remain in her old position to keep her health benefits, the answer was no. On February 14, Shriners informed her that her start date would be February 26. She also received her biopsy results confirming her breast cancer diagnosis.

Offer rescinded. She immediately called her Shriners’ manager to discuss the situation and inform her of her doctor’s appointment on February 27. The following day, the manager and the HR director called the employee and, according to the employee, told her that she would not qualify under the FMLA guidelines for 90 days; that because she was hired for a “unique” position, if she were absent more than three times, they could not “secure” her position; and that if she wanted to be considered for positions in the future, she needed to formally rescind her acceptance of the job offer. Believing there was no other choice, the employee resigned.

ADA disability claim. Suing under the ADA, the employee claimed to have direct evidence of disability discrimination. She alleged Shriners informed her it could not “secure her position” because of her cancer diagnosis and related treatment needs and made clear that in order to preserve the potential to be considered for future employment, she needed to rescind her offer acceptance. Noting that “the sole and crucial question” was whether she voluntarily chose to rescind her acceptance, or whether the manager and HR director coerced it, the court found the perception of the phone conversation and alleged coercion, if credited, directly supported her discrimination claim.

Actually disabled. Turning to Shriners’ contention the employee was not disabled at the time she rescinded her acceptance, the court noted she claimed her cancer substantially impaired normal cell growth, she had a very aggressive form of nearly stage III invasive breast cancer, and the ensuring treatment included surgery, chemotherapy, and radiation. This was enough to support a jury finding she was actually disabled for ADA purposes.

Regarded as. A fact question also existed as to whether Shriners regarded her as disabled. The manager and HR director knew of her diagnosis and her impairment was neither transitory nor minor. Further, a jury, crediting her version of events, could reasonably find Shriners perceived her as seriously ill and, not wanting to accommodate a new cancer-patient employee, convinced her that she would be categorically unable to fulfill her job duties and forced her to rescind the acceptance.

Voluntary or coerced? A jury must also decide whether Shriners took any adverse action against the employee, said the court. While Shriners claimed the employee unilaterally and voluntarily decided not to accept the new position as a result of her diagnosis, she contended Shriners told her it could not guarantee her position because of its strict three-absence policy and to preserve the possibility of working there in the future, she needed to rescind her acceptance.

Failure to accommodate. Moving for summary judgment on the employee’s failure-to-accommodate claim, Shriners argued that she did not request any accommodations. She claimed, however, that she asked if she would be able to take time off for medical appointments or whether there was modified scheduling available to accommodate her treatments. While the manager and HR director claimed she asked no questions during the phone conversation and requested nothing, a jury, crediting the employee’s testimony, could find she requested permission to miss work for appointments and could conclude that Shriners’ “wholesale failure to accommodate—or even to meaningfully attempt to accommodate—[her] disability-related medical appointments triggers ADA liability.”

Retaliation. As to her retaliation claim, the court found a reasonable jury could find the employee requested a schedule modification to accommodate her cancer treatments and for the reasons already discussed, could determine that her rescission of the position acceptance was coerced. Reasonable jurors could also find that the manager and/or the HR director—anticipating the added work associated with obliging the employee’s scheduling needs for an indefinite period upon her start at Shriners—coerced her into rescinding the acceptance expressly because of a disability-tied accommodation request. Thus, this claim would also go to a jury.

KCRA claims. Finally, addressing her KCRA claims, the court noted that while the statute largely parallels the ADA, it did not incorporate the 2008 ADAAA changes. Thus, most courts apply pre-2008 ADA jurisprudence in analyzing KCRA claims. Noting that pre-ADAAA cases “generally have held that cancer is not a qualifying disability,” and that the employee did not argue that her breast cancer actually substantially limited any pre-ADAAA-qualifying major life activity, the court could not find that she qualified under the KCRA “actual disability” prong.

And while the employee argued that the regarded-as prong applied, and that Shriners considered her impaired across a board range of jobs, the court noted evidence the manager and HR director viewed the position as “unique” and thus subject to less absence flexibility. Thus, the court granted summary judgment against her state-law claim.

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