Labor & Employment – Civil Rights – ADA – HIV – First Impression – Falsifying Forms

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Lundy v. Phillips Staffing (Lawyers Weekly No. 002-061-14, 9 pp.) (Timothy Cain, J.) 7:13-cv-00062; D.S.C.

Holding: Asymptomatic HIV is a “disability” within the meaning of the Americans with Disabilities Act. Furthermore, there is a genuine issue of material fact as to whether defendant fired plaintiff because he is HIV positive or because he failed to reveal that fact on a medical questionnaire.

The court accepts the magistrate judge’s recommendation and denies defendant’s motion for summary judgment.

While the Fourth Circuit has not definitively held that asymptomatic HIV is a per se disability, the court finds that based on the evidence before it, plaintiff’s asymptomatic HIV meets the ADA’s definition of disability.

Plaintiff has shown that he has HIV, which is a physical impairment that has a constant and detrimental effect on the infected person’s hemic and lymphatic systems from the moment of infection. The lymph nodes, where the virus is most prevalent during the asymptomatic phase, play a key role in the body’s immune response system, a major life activity under the ADA Amendments Act of

2008. And, plaintiff has attested to getting “extremely sick” due to his diminished immune system. Thus, plaintiff has a physical impairment that substantially limits one or more major life activities.

The record suggests that plaintiff’s general job performance was more than adequate. So, defendant is hanging its hat on plaintiff’s failure to comply with a company rule – accurately completing the medical questionnaire.

In response, plaintiff offers evidence that this company rule, or at least the way in which defendant enforces it, is not legitimate. Plaintiff points to other examples of employees who were fired for falsifying documents, but whom defendant could have wanted to fire for more self-serving or discriminatory reasons. The court finds that plaintiff has presented enough evidence to create a question of fact as to whether defendant is using this company rule to hide a discriminatory purpose.

Defendant asserts that the magistrate judge’s report unreasonably relies on the temporal proximity between defendant’s discovery of plaintiff’s HIV-positive status and plaintiff’s termination.

The court agrees with defendant that the temporal connection could go either way – the moment defendant discovered that plaintiff was HIV-positive was the same moment it discovered that plaintiff’s medical questionnaire did not indicate that he was HIV-positive. So, the court is left with plaintiff’s testimony that defendant’s employees made comments about his HIV status at his termination meeting.

Defendant argues that plaintiff’s testimony is unreliable because it is inconsistent and offers affidavits from the employees at the termination meeting in response. As a result, the court is left with two different sets of facts and a credibility dispute. If the court accepts plaintiff’s set of facts as true, as it must at this stage, then there is a reasonable inference of discrimination, or at least a disputed issue of material fact.

Defendant asserts that it fired plaintiff for falsifying documentation. Plaintiff has offered evidence that defendant’s representatives referenced his HIV status at his termination meeting. If plaintiff’s termination was truly for falsifying documentation, then the exact nature of his disease would not be relevant or warrant comment. Thus, there are contradictions between the non-discriminatory rationale for firing plaintiff currently propounded by defendant and the statements allegedly made by defendant’s representatives during plaintiff’s termination meeting.

Such contradictions between an employer’s proffered explanation and the contemporaneous statements of the employer are convincing evidence of pretext and, combined with the plaintiff’s prima facie case, can be enough to permit the trier of fact to conclude that the employer unlawfully discriminated.

Motion denied.