Olivia Gibbs worked for ADS Alliance Data Systems, Inc. as a Sales and Service Representative. She also had a part-time job at CVS. She was injured working for CVS and had a nerve conduction study which showed carpal tunnel syndrome. Her doctor attributed the carpal tunnel condition to the repetitive nature of her job with Alliance. She filed a claim for workers' compensation benefits with the State of Kansas.
Gibbs had surgery on her right wrist on December 3, 2008 and returned to work nine days later with restrictions against using her right hand. Plaintiff claimed that she was forced to continue to use her right hand in spite of the restrictions while working in a light-duty position because she could not perform key strokes with just her left hand. She wrote on December 13, 2008 to her human resources manager requesting a different light duty assignment.
Plaintiff alleged that the company was frustrated with her requests for accommodation. She further claimed that the HR manager yelled at her for a minor reason. In December 2008, plaintiff notified the HR manager that she needed to have numerous surgeries, including carpal tunnel surgery on her left hand. She claimed that her supervisor told her that the company was losing money on her.
On January 8, 2009, plaintiff's doctor returned her to work full duty. The following day, the HR manager saw her soliciting employees to purchase Avon products at work while on the clock. Plaintiff disputed the allegations and said that she had clocked out and was leaving for the day, and she and her friend were discussing something unrelated to Avon products. The company terminated her employment promptly based on a violation of the company Solicitation and Distribution Policy.
Plaintiff sued and alleged that her firing violated theADA. The court began by noting, “[t]he ADA Amendments Act of 2008 (ADAAA) has ‘lowered the bar' on the disability inquiry.” It noted that courts are not supposed to expend much analysis on whether there is a disability under theADA. It rejected the motion for summary judgment filed by Alliance and stated, “After examining the evidence in the record bearing on this issue (certainly there is some evidence that plaintiff's condition affected her ability to perform manual tasks), and keeping in mind that this inquiry is not meant to be ‘extensive' or demanding, the court concludes that genuine issues of material fact exist as to whether plaintiff's carpal tunnel syndrome constitutes a disability within the meaning of the ADA.”
Alliance countered that it had a legitimate, non-discriminatory reason to terminate plaintiff's employment, namely the violation of its policy. The court held against the employer the fact that it did not follow its policy to the letter. “Defendant's solicitation policy, on its face, does not contemplate termination for a violation of the policy; it states that an employee who violates this policy ‘may' be subject to counseling.” The court said that the decision to terminate the plaintiff's employment rather than counsel her (as provided in the policy) casts doubt about the reason for her termination.
The court also denied defendant's motion for summary judgment on the issue of retaliation. It commented, “Moreover, with particular application in the retaliation context, the timing of the decision to terminate plaintiff's employment just 4 weeks after plaintiff requested an accommodation based on her condition – is sufficient to create genuine issues of material fact as to whether defendant's proffered reason for terminating plaintiff's employment was pretextual.”
John H. Geaney, a shareholder with Capehart Scatchard, began an email newsletter entitled Currents in Workers' Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates. His blog may be read at http://www.njworkerscompblog.com.
Disclaimer: WorkersCompensation.com publishes independently generated writings from a variety of workers' compensation industry stakeholders. The opinions expressed are solely those of the author and do not necessarily reflect those of WorkersCompensation.com.