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Federal Court Rejects ADA Suit by Security Officer but Allows Workers’ Comp Retaliation Claim to Go to Trial

By on July 27, 2015 in ADA with 0 Comments

Patrick Vasnaik worked for Providence Health & Services – Oregon as a security officer from 2006 to 2012.  His performance evaluations over the years fluctuated between requiring improvement to exceeding expectations.  However, he required several coachings over the years for not arriving on time to work.  In May 2010 he received a “documented coaching” after getting two tardies and three absences in a rolling 12-month period.

He also was coached for violating lost and found procedures:  once in 2010 he mistakenly took home a lost wallet which he put in his own pocket and forgot to log, and again in 2011 when he erroneously informed a woman that her lost necklace had been found.

One part of Vasnaik’s job was to park patients’ vehicles if the patient had to be taken into the hospital immediately.  In February 2011 he parked a patient’s vehicle in a designated disabled space without a permit, causing the patient to receive a $300 ticket. He was also coached about radio communications and emergency room standby procedures.

A recurring criticism of Vasnaik by his superiors was that he did not prioritize security calls or respond to them with urgency.  Once he did not answer an officer’s call because Vasnaik was eating lunch. His 2010 review noted that he only had one speed in which he performed every task and needed to augment his pace.  This criticism was noted again in 2011.

In May 2011 Vasnaik received a written warning when he lost track of a stand by patient he was guarding because he was using a computer and got distracted.  Some time thereafter he was written up for walking away from a marked patrol vehicle with the keys in the ignition and the engine running.

The final violation of Providence’s policy occurred on September 3, 2012 when he parked his personal vehicle in the West Parking Structure, which was reserved for patients and visitors only.  Wasnaik noted that he was running late that day, and that the lot was almost empty because it was Labor Day weekend. He later claimed that he parked there because of his work-related knee condition.  His employment was terminated on September 17, 2012.

During the last three years of his employment, Vasnaik had four workers’ compensation injuries.  The first was on July 16, 2009 when he injured his knee while working with a patient.  The second was June 2010 when he severely injured his right knee restraining a psychiatric patient. That injury led to knee surgery and a seven-month absence from work.  The third was on August 30, 2011 again involving the left knee, and the final injury occurred on September 2, 2012 when a psychiatric patient bit him on the left forearm.  This occurred two weeks before he was fired. Providence argued that it did not know about the last incident until after the company fired Wasnaik.

Vasnaik sued under the ADA and also the Oregon state law prohibiting retaliation for filing workers’ compensation injuries.  The Court noted that Vasnaik claimed that his knee injuries substantially limited his major life activities, specifically his mobility and quickness on his feet.  However, his only proof of this was an independent medical examination dated June 20, 2010 which occurred before his corrective surgery.  “Taking that evidence as true, it still does not establish the knee injuries substantially limited any of Vasnaik’s major life activity after his surgery and recovery,” the Court stated. His doctor’s note post-surgery gave him a full release with no restrictions. The Court also noted that “quickness on one’s feet” is nowhere listed as a major life activity under the ADA.

The Court took a different view, however, of his workers’ compensation retaliation claim.  Vasnaik’s argument was that Providence demonstrated increased scrutiny of him following his 2010 workers’ compensation claim.  He also argued that his firing followed closely on the heels of his fourth workers’ compensation claim when he was bitten by a patient.

The Court was not impressed with the increased scrutiny logic because there was ample evidence in the record that Providence was unsatisfied with Vasnaik’s work pace well before his workers’ compensation injuries.  However, the Court was concerned about the temporal proximity between the injury on September 2, 2012 and the termination on September 17, 2012.  Vasnaik said that he notified his employer around September 13, 2012 that he needed treatment for the biting incident.  That was one day before Providence made the decision to terminate his employment.  The Court considered Providence’s stated non-discriminatory reasons for firing Vasnaik and also considered Vasnaik’s assertion that the timing of his termination was extremely suspicious:

Although there is no dispute that Vasnaik had received a written warning, and that he admits the underlying incidents were true, the Court finds a reasonable juror could interpret the evidence Vasnaik has produced as indicative of a discriminatory intent.  Vasnaik testified that he felt ‘singled-out on this particular incident. . . and the supervisors are very . . . aware that a lot of people do park there.’” 

The Court also commented that most of Vasnaik’s annual reviews were fairly positive. The review from 2012, two months before his termination suggested Vasnaik was performing satisfactorily and was meeting expectations.  The Court concluded, “The close temporal proximity between Mullen’s positive review, Vasnaik’s injury, and his termination could lead a reasonable juror to conclude that Providence’s proffered reason for terminating him — that he parked in an essentially empty patient parking lot during the Labor Day weekend — was pretextual.”

For this reason the Court denied summary judgment to Providence on the workers’ compensation retaliation claim but granted summary judgment on the ADA claim to the employer.  The case shows the perils of terminating an employee within days of a reported workers’ compensation claim, particularly when written job evaluations are at best equivocal, if not essentially positive. The case can be found at Vasnaik v. Providence Health & Services – Oregon, 2015 U.S. Dist. LEXIS 61068 (D. Oregon, May 9, 2015).

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John H. Geaney

About the Author

About the Author:

John H. Geaney, an executive committee member and 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.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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