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D.C. Court of Appeals Finds That Perceived-Disability Discrimination Claim May Succeed

Anti-discrimination laws often protect both individuals with actual disabilities and those whose employer perceives (regards) as disabled.  Whether an employer perceives an employee as disabled, however, can be a complicated matter, as a case decided last week by the District of Columbia Court of Appeals illustrates.  Abdul-Azim v. Howard University Hospital, No. 17-CV-453 (D.C. Ct. App. 8/1/19).

Abdul-Azim worked as a cardiology technician for Howard University Hospital (“the Hospital”).  For many years, he had an excellent performance record.  Then, in 2014, he was involved in two separate disputes with a coworker – the latter of which involved accusations of assault.  (Abdul-Azim claimed he merely put his hand on the coworker’s shoulder and corrected the coworker on a mistake during a medical procedure.)

Both employees were placed on administrative leave while the Hospital investigated.  Ultimately, the Hospital concluded that Abdul-Azim had been the aggressor and had behaved “manic[ally].”  The Hospital recommended that Abdul-Azim obtain Employee Assistance Program (EAP) services prior to returning to work and referred him to a fitness-for-duty evaluation.

The evaluating physician concluded that Abdul-Azim had “poor concentration” and bizarre behavior during the evaluation; was “hyperactive” and “manic;” and was “[n]ot physically able to safely and efficiently perform the essential functions of [his] job.”  She also recommended that he undergo a psychiatric evaluation, obtain treatment, and remain on leave in the meantime.

Abdul-Azim subsequently completed the EAP a few months later.  The following week, Abdul-Azim underwent a psychological evaluation with a second physician.  The second doctor opined that Abdul-Azim was “fully competent” and released him without limitations.  Abdul-Azim provided the Hospital with a note from this doctor and indicated that he was undergoing therapy.  Abdul-Azim believed the note sufficed to show that he had undergone the recommended evaluation, even though it did not explicitly state as such.

Several months later,  the Hospital informed Abdul-Azim that he could not return to work until providing “documentation that he was evaluated and treated by a [p]sychiatrist and has been cleared for duty by [the evaluating physician].  Abdul-Azim tried to contact both the Hospital and the evaluating physician, to no avail.  Ultimately, Abdul-Azim was terminated for failing to comply with the Hospital’s return-to-duty directives.

Abdul-Azim sued under the D.C. Human Rights Act, claiming that the Hospital took adverse action against him because of his perceived disability.  The trial court found for the Hospital, concluding that Abdul-Azim had failed to provide sufficient evidence that the Hospital regarded him as disabled.

The Court of Appeals reversed.  In a 2-1 decision, the court found that a reasonable jury could conclude that the Hospital regarded Abdul-Azim as disabled because the first doctor’s note (stating that his behavior prevented him from safely performing the essential functions of his job) presented proof of limitations on his ability to work.  The court also believed that the first physician’s written recommendation for additional psychiatric treatment could have led the Hospital to believe that Abdul-Azim was disabled, suggesting that a physician’s medical advice may be relevant to whether an employer discriminated by acting on the basis of such advice.

Moreover, the court found that the Hospital’s stated reason for terminating Abdul-Azim – that he failed to comply with the Hospital’s orders for returning to duty – could be a pretext for disability discrimination.  This was primarily because the record was unclear what the Hospital expected Abdul-Azim to do to be able to return to work, while Abdul-Azim thought that the second doctor’s note conveyed that he was fit for duty.

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