It pays for employers to be the most reasonable person in the courtroom, as the recent case of Gower v. Yuma Senior Living LLC[i] demonstrates.  In Gower, the plaintiff employee filed a claim against his former employer, a nursing home, alleging violations of the Americans with Disabilities Act (“ADA”) and the Arizona Civil Rights Act. Plaintiff had been employed as a maintenance technician for Yuma City Living (“YSL”) for more than five years when he resigned because of YSL’s vaccination policy which required its employees to be vaccinated for COVID-19 or provide a note from a doctor that it would be medically unsafe to be vaccinated or provide evidence that the employee’s religious beliefs prohibited vaccination.[ii] YSL implemented this policy because they housed elderly, handicapped, and otherwise high-risk individuals in poor health. Plaintiff chose not to take the vaccine as he allegedly had concerns about taking the vaccination due to “some negative reactions he had to vaccines while in the military.”[iii]

YSL agreed to allow plaintiff ninety days after his resignation to comply with the vaccination policy, advising him throughout that time about the policy’s requirements.[iv]  Over the 90-day period, YSL continued to remain in contact with plaintiff, with a human resources representative sending him reminders about needing to get the vaccination and providing opportunities to submit a doctor’s note which would have otherwise exempted him. Plaintiff, however, never submitted the documentation required by YSL and maintained he had a disability that should have exempted him from the policy.[v] YSL filed a motion for summary judgment, arguing that it had engaged in an interactive process with plaintiff to resolve his concerns and that plaintiff could not prove YSL’s acceptance of his resignation was a pretext.

Defendant’s Motion for Summary Judgment

To succeed in an ADA claim a plaintiff must show: (1) he is disabled under the Act, (2) he is qualified and can perform the essential functions of the job, and (3) the defendant failed to provide a reasonable accommodation, failed to engage in the interactive process to identify a potential reasonable accommodation, or terminated him due to his disability.[vi]   However, if a defendant provides a legitimate, nondiscriminatory reason for the adverse employment action, the burden shifts back to the plaintiff to prove it was a pretext.[vii] In this case, YSL implemented the policy because they housed elderly, handicapped, and otherwise high-risk people, so the burden shifted to plaintiff to prove that its policy was a pretext.[viii]

The Ruling

The district court, although expressly noting that it was sympathetic to the plaintiff, found YSL had engaged in the interactive process, even after the plaintiff tendered his resignation, and it was plaintiff who failed to provide any of the required documentation.[ix] In addition, the plaintiff never proposed an alternative to the vaccine.[x] The Court also found plaintiff had failed to provide any evidence that YSL’s acceptance of his resignation was a pretext given the reason YSL implemented the policy.[xi]

The Court also rejected plaintiff’s discrimination claim under the Arizona Civil Rights Act. To prevail, plaintiff had to prove that: (1) he had a reasonable belief that the employer violated, or will violate the law, (2) he disclosed that belief to his employer in a reasonable manner, (3) the belief was disclosed to a supervisor who had the power to prevent or act on those violations, and (4) he was terminated because he disclosed the belief.[xii] Plaintiff alleged that he had a reasonable belief that YSL was violating Article 18, Section 3 of the Arizona Constitution which prohibits an employer from requiring an employee to enter into an agreement which indemnifies the employer from personal injuries sustained in the course and scope of employment, by requiring him to sign a release.[xiii]

The Court rejected plaintiff’s arguments, finding he did not want to sign the release because he was afraid of incurring medical costs due to his belief that he would suffer a vaccine injury, not because he reasonably believed it was unconstitutional.[xiv] The Court also found that plaintiff failed to link the reported conduct to his termination. YSL continued to advise the plaintiff to provide documentation to support an exemption and plaintiff failed to do so.[xv]

Takeaway

This case exemplifies the importance of an employer acting reasonably and consistently.  In this case, the employer engaged in the interactive process and, as the Court found, had a legitimate, non-discriminatory reason for taking adverse employment action. When the employer acts reasonably, the courts are far more likely to rule in its favor.  By acting reasonably, employers can successfully defend claims of federal and state disability discrimination, and reduce the costs of litigation.

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Sources

[i] CV-22-01334 -PHX-SMB, Doc. 1-3 at 5.

[ii] Id. at Doc. 28 at 4 ¶ 20, 7 ¶ 35.

[iii] Id. at 7 ¶ ¶ 37-39.

[iv] Id. at 8 ¶¶ 41-42, 12 ¶ 56.

[v] Id. at 12 ¶ 58.

[vi] Dunlap v. Liberty Nat. Prods., Inc., 878 F.3d 794, 799 (9^th Cir. 2017)

[vii] Fonseca v. Sysco Food Serv. of Arizona, Inc., 374 F.3d 840, 849 (9^th Cir. 2004)

[viii] CV-22-01334 -PHX-SMB, at Doc. 28 at 4 ¶ 20, 7 ¶ 35.

[ix] Id. Order dated December 6, 2023, 5:12-18.

[x] Id. at 6:9-11.

[xi] Id. at 6:13-15.

[xii] A.R.S. § 23-1501(A)(3)(c)

[xiii] CV-22-01334 -PHX-SMB, Doc. 27 at 6.

[xiv] Id. Order dated December 6, 2023, 8:20-27.

[xv] Id. at 9:7-9.