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ABIGAIL CASTRO
vs.
CHILD PSYCHIATRY CENTER
 
Case:
C.A. NO. 96-6241
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 
Date:
March 25, 1997, Decided
 
Attorneys:
For ABIGAIL CASTRO, PLAINTIFF: ADAM H. FEINSTEIN, PHILADELPHIA, PA USA.
For CHILD PSYCHIATRY CENTER, DEFENDANT: RICHARD E. STABINSKI, PHILLIPS & PHELAN, PHILA., PA USA.
 
Court:
CHARLES R. WEINER
 
Author:
The Hon. Justice Charles R. Weiner
 

Plaintiff Abigail Castro brought this lawsuit against her former employer under the Americans with Disabilities Act (ADA), 42 U.S.C. SEC. 12111(5). She also asserts a pendant claim of violation of the Pennsylvania Human Relations Act, Pa. Con. Stat. Ann. tit. 43, SEC. 951 et seq. The matter was tried to Court. Our findings of fact and conclusions of law follow.

FINDINGS OF FACT

1. Castro began her employment at the Child Psychology Center (CPC) on February 23, 1994, as a temporary employee. She was hired permanently on May 2, 1994. She was discharged from employment on November 11, 1994.

2. CPC is a non-profit corporation which provides mental health services to children.

3. Her position was a program aide/van monitor (PA/VM). Although she testified that she was employed primarily as a program aide, Castro's job description provided that she was charged with supervision of CPC's school aged clients during their transportation to the center, as well as assisting mental health workers in the supervision of the children while at the center. Castro only began riding in the vans two weeks before her dismissal.

4. During the period of time she worked at CPC, Castro was never formally evaluated. She did receive compliments on her performance from her immediate supervisor Gail Solomon. There were no negative comments in her personnel file.

5. Castro has suffered for many years with debilitating migraine headaches. When she gets a migraine, she must lie down in a darkened, quiet room. She has taken many different prescription drugs since 1989 to relieve her condition. At the time of her employment with CPC she was taking Inderal and Fiorcet by pill, as well as injections of Imerex. By taking these drugs, she is able to function normally during the work day, although she occasionally gets migraine attacks during work hours.

6. Castro told Solomon that she suffered from migraines and told her when her prescriptions changed. She tried not to take the drugs during work hours because of the side effect of drowsiness and nausea.

7. On Monday, October 10, 1994, Castro's supervisor told her to report to Rose Lynch's office to take a urinalysis test. Lynch is the administrator of CPC. Castro reported as directed, but asked Lynch if she could delay the test one day. Castro was fearful that alcohol she consumed over the prior weekend would affect the test. Lynch permitted her to delay the test one day.

8. Castro submitted to the test on October 11, 1994. The test result was positive for barbiturates.

9. Castro was required to take the test because of regulations contained in CPC's contract with Wheels, Inc. to service emotionally disturbed children. Wheels was a contractor with the Pennsylvania Department of Public Welfare. DPW's regulations required its contractors and subcontractors to drug test employees who served as van monitors.

10. During the six months of her full time employment, Castro was a van monitor for less than three weeks. CPC employed full time van monitors, but used program aides as necessary to fill in.

11. When her test came back positive for barbiturates, Castro and Solomon looked up her prescription drugs in a medical book and discovered they contained barbiturates. Neither was concerned about her positive test because she took the barbiturate containing drugs by doctor's prescription, and did not work as a van monitor full time.

12. Castro was told to get a note from her doctor explaining her use of the drugs, which she did. The note from her treating physician, Dr. David Bayard, stated that Castro was prescribed medications including Inderal and Fiorcet. Although not asked to do so, Castro also provided a copy of a prescription, but the prescription was dated after the date of the drug test.

13. Although she testified in her deposition that she began seeing Dr. Bayard in 1992, Castro did not actually begin seeing him until July 1, 1994. Dr. Bayard did not begin to prescribe the barbiturate containing Fiorcet until October 17, 1994, six days after Castro's positive drug test.

14. When confronted with this inconsistency in her testimony, Castro stated that she had been prescribed Inderal and Fiorcet by other doctors continuously since 1989.

15. On November 4, 1994, Castro was summoned to Lynch's office. Lynch informed her she was terminated from employment due to her positive drug test. Lynch gave her a letter stating that CPC must remove her from her position of PA/VM "as long as you are taking prescription drugs which impair you ability to perform the essential functions of your job."

16. Prior to the meeting, Castro thought the problem of her positive test would be solved by her returning to her prior duties as a program aide only, since the drug free restriction applied only to the van monitor duties.

17. Lynch told her she would be eligible for unemployment benefits.

18. During the meeting, Lynch gave Castro an Exit Interview Form. On the form it notes that Castro resigned her position, rather than being fired.

19. On a form she provided to the Department of Public Welfare, Castro stated she left CPC due to her health. On unemployment compensation forms, she stated she could only work sometimes due to her health.

20. Lynch admitted that CPC never believed that Castro was a drug abuser and that the positive drug test was caused by Castro's prescription drugs.

21. Lynch testified she attempted to get a waiver for Castro from Wheels. There is no writing to document this effort. Lynch testified she did not make any calls personally.

22. Lynch testified that she had a conversation with Castro in a hallway at CPC sometime between the date of the drug test result and the date plaintiff was terminated. Lynch testified that Castro told her the drugs made her woozy and requested to be terminated. That is why Castro's Exit Interview Form states that she resigned. Lynch also offered testimony that plaintiff left her employment on mutual agreement: Castro would resign, but CPC would not prevent her from collecting unemployment benefits.

23. In a letter to the Office of Employment Security, Lynch stated that Castro was terminated. Castro was thus eligible for unemployment compensation.

24. Castro denies ever having a conversation with Lynch in the hallway in which she asked to be terminated.

25. In the termination letter prepared by Lynch, she stated that Castro ability to perform essential functions of her job were impaired by her prescription drugs. However, in its answer to the Pennsylvania Human Relations Commission complaint filed by Castro, CPC admits that plaintiff performed her job satisfactorily.

26. At least two other CPC employees have tested positive for drugs. One employee tested positive for marijuana use. He was sent to a Counseling program then reinstated in his job. He later tested positive again and was terminated.

27. Another employee tested positive for cocaine. He also was offered Counseling, completed the program and was reinstated in his job. He later left CPC's employ.

28. CPC made an accommodation to a hearing impaired employee, providing her with a telephone device. CPC also provided paratransit to another employee who was blind.

29. Lynch testified CPC made an accommodation to Castro's migraine headache disability by offering her the opportunity to receive unemployment compensation.

30. Lynch never considered accommodating Castro's disability by changing her job description to remove the van monitoring duties.

31. On October 12, 1995, a private criminal compliant was sworn against Castro for violation of the public assistance code. The complaint alleges Castro committed welfare fraud when she failed to notify a public assistance agency that she was working at CPC. The complaint was never served; there was no evidence presented of any disposition.

32. Dr. Bayard opined that Castro could not function in her job without taking the Inderal, Fiorcet and Elavil she was prescribed. He opined that she suffered no apparent side effects from the drugs.

33. At the time she was terminated, Castro's gross salary $5.15/hour or $386.25 biweekly. Although she received unemployment benefits, child support and food stamps, she was forced to use $1,800 of savings and borrow $1,500 from her parents to support her family. Following her termination, she experienced stress, which exacerbated her migraines. She was hospitalized on November 19, 1994.

CONCLUSIONS OF LAW

1. Court's jurisdiction is founded on 28 U.S.C. SEC. 1331.

2. Venue is appropriate in this district pursuant to 28 U.S.C. SEC. 1391(b).

3. Under the ADA, an employer may not lawfully "discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . the hiring, advancement or discharge of employees." 42 U.S.C. SEC. 12112(a).

4. Disparate treatment cases brought under the ADA are generally examined under the same burden analysis used in Title VII and other employment discrimination cases as articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct.1817 (1973). Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.1995).

5. The plaintiff bears the initial burden of putting forth evidence to create a prima facial case. Plaintiff must show that she was a member of a protected class; she was qualified for the job from which she was discharged; and others not in the protected class were retained. McDonnell Douglas, 411 U.S. at 802.

6. If the plaintiff makes out a prima facial case, an inference of discrimination is created and a burden arises on the defendant to articulate some legitimate, nondiscriminatory rationale for its employment action. This burden in minimal. Mardell v. Harleysville Ins. Co., 31 F.3d 1221, 1225, n.6 (3d Cir.1994).

7. Once defendant makes this showing, the inference of discrimination evaporates and the onus is again on the plaintiff to prove that the defendant's stated reason is a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). In order to carry her burden, plaintiff must prove that the reason provided by the employer was false and that discrimination was the real reason for the adverse employment action. Id.

8. The ADA defines disability as:

a. a physical or mental impairment that substantially limits one or more of the major life activities of an individual;

b. a record of such an impairment; or

c. being regarded as having such an impairment.

42 U.S.C. SEC. 12102(2).

9. The term "substantially limits" is defined as:

a. the inability to perform a major life activity that the average person in the general population can perform; or

b. significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

29 C.F.R. SEC. 1630.2(j)(1).

10. The factors considered to determine whether an impairment is substantially limiting include:

a. the nature and severity of the impairment;

b. the duration or expected duration of the impairment; and

c. the permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

29 C.F.R. SEC. 1630.2(j)(2).

11. The definition of disability under the PHRA is coextensive with the ADA definition. Fehr v. McLean Packaging Corp., 860 F. Supp. 198, 200 (E.D.Pa. 1994).

12. Under the ADA, the term "discrimination" includes an employer's not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the employer's business. 42 U.S.C. SEC. 12112 (b)(5)(A).

13. More specifically, 29 C.F.R. SEC. 1630.9(a) provides that it is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

14. A "covered entity" is defined as an employer with more than 15 employees. 29 C.F.R. SEC. 1630.2(e). CPC does not dispute that it is a covered entity.

15. "Reasonable accommodation" means a modification or adjustment to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enables a qualified individual with a disability to perform the essential functions of that position. 29 C.F.R. SEC. 1630.2(o)(1)(ii). Reasonable accommodation may include job restructuring. 29 C.F.R. SEC. 1630.2(o)(2)(ii).

16. "Undue hardship" means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a covered entity, when considered in light of the following factors:

a. the nature and net cost of the accommodation;

b. the overall financial resources of the facility involved, the number of persons employed and the effect on expenses and resources;

c. the overall financial resources of the covered entity;

d. the type of operation of the covered entity, including the composition and structure of its work force; and

e. the impact of the accommodation upon the operation of the facility.

29 C.F.R. SEC. 1630.2(p).

17. The ADA specifically permits employers to prohibit the use of illegal drugs and alcohol at the workplace and engage in drug testing. 29 C.F.R. SEC. 1630.16(b),

(c). The Appendix to SEC. 1630, which provides interpretive guidance, states more generally that the ADA permits employers to establish or comply with certain standards regulating the use of drugs and alcohol in the workplace.

18. CPC's implementation of a drug screening program did not violate the ADA.

19. Because of her migraine headaches, Castro is significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. Specifically, she testified that she regularly gets severe migraine headaches which prevents any normal functioning until it passes. This syndrome has been ongoing since 1989. While the symptoms can be eased by drugs, there was no evidence that plaintiff's problem will be cured in the foreseeable future. Thus, plaintiff was a member of the class protected by ADA.

20. Castro was qualified for the job from which she was discharged. It was not seriously contested at trial that Castro could perform all the essential functions of the PA/VM position, save for the administrative regulation that prevented her from being a van monitor.

21. The evidence adduced at trial demonstrated that others not in the protected class were retained. Specifically, there was evidence that others who failed the drug test because of illicit drug use were permitted to enroll in Counseling and retain their jobs. *fn1

22. Thus, Castro has satisfied her burden of demonstrating a prima facial case of discrimination.

23. CPC has met its minimal burden to articulate a legitimate, nondiscriminatory rationale for its employment action. The evidence disclosed that Castro was putatively terminated because she did not pass the drug test, an administrative requirement to be a van monitor.

24. Thus, it was incumbent upon plaintiff to prove that the reason provided by the employer was false and that discrimination was the real reason for the adverse employment action.

25. We find from a preponderance of the evidence that Castro has carried her burden on the ultimate issue. It was not disputed that, although the van monitoring duties were part of Castro's job description, it was not a significant part of her actual job assignments. She worked primarily in the classrooms as a program aide, a duty not covered by the drug free workplace rules.

26. Pursuant to 42 U.S.C. SEC. 12112(b)(5)(A), the failure to make a reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability is synonymous with discrimination.

27. The evidence demonstrated that CPC failed to make a reasonable accommodation to plaintiff's disability. CPC made no offer to limit Castro's duties so as to avoid her coming under the drug free workplace requirement that covered only the van monitoring duties. There was no evidence that this, or any other accommodation, would have posed an undue hardship. Indeed, Castro's job was already limited to the program aide duties.

28. The only evidence of reasonable accommodation was CPC's alleged agreement to allow Castro to collect unemployment benefits, even though, according to the defendant, Castro sought to voluntarily resign her position.

29. While we have no cause to discredit the testimony of Ms. Lynch on this point, we find as a matter of law, that this would not constitute a reasonable accommodation. Such an agreement would be a violation of the employment security laws of Pennsylvania, since one who voluntarily resigns is not eligible to collect unemployment benefits. We do not believe that an agreement which is against public policy can be deemed a reasonable accommodation. We also highly doubt that Congress, when drafting a statute designed to protect the rights of the disabled to secure and maintain employment, had in mind that a discharge of the employee could constitute a reasonable accommodation. Rather, the statue and its implementing regulations describe just the opposite: a reasonable accommodation is something that keeps the disabled employee working.

30. There is no evidence that CPC offered Castro a reasonable accommodation, as envisioned by the statute and regulations.

31. For the reasons stated, judgment will be entered in favor of plaintiff Castro and against defendant CPC on the issue of liability. The parties will be directed to file affidavits and memoranda on the outstanding damage issue.

ORDER

Judgment on the merits is ENTERED in favor of plaintiff Abigail Castro and against defendant Child Psychiatry Center on the issue of liability.

Plaintiff is DIRECTED to file and affidavit and memorandum within thirty days on the outstanding issue of damages.

Defendant is DIRECTED to file a response within fifteen days thereafter.

 
Notes:

*fn1 These persons would not be considered to be in the protected class since the regulations make clear that individuals currently engaging in the illegal use of drugs are not individuals with disabilities for the purposes of 29 C.F.R. SEC. 1630, when the employer acts on the basis of such use. 29 C.F.R. SEC. 1630.3(a).