Even under the best of circumstances, most of us view rental car counters the way we view airport security: essential to get where we are going, but not a place we want to spend more time than absolutely necessary. The circumstances of one Hawaii rental car counter as described recently in Assaturian v. Hertz Motor Corp. provide a particularly memorable, messy example of this phenomenon.
John Assaturian was a long-time Hertz employee who served from 2004-2012 as the Location Manager for Hertz’s Honolulu car sales department. Significantly, his managers were located in California, Arizona, and New Jersey, while the relevant Human Resources (HR) employee was based in California.
During his employment, Assaturian was disciplined for multiple work incidents, including using vulgar language, yelling at coworkers, and pounding his fist on the table. Indeed, Hertz issued Assaturian a warning following a 1998 incident in which he reprimanded one Bambi Tanaka (apparently her real name) in front of her co-workers. In 2004, Assaturian was diagnosed with Chronic Ulcerative Proctitis and Ulcerative Colitis, which, according to him, negatively affected his bowel control, in turn causing him to sleep poorly and, consequently, to handle stress or concentrate poorly. After a 2008 confrontation with another sales representative, Hertz issued him a final warning.
At no time during the investigation surrounding either incident did Assaturian raise his health condition or a need for reasonable accommodation as an issue. However, as the rest of this case illustrates, there was very little interaction, in general, between Hertz’s management or decisionmakers and Assaturian.
Enter Sugar Bear. In 2010, Assaturian, apparently in consultation with his wife, bought Sugar Bear, a Shih Tzu, to calm his nerves. Unbeknownst to his stateside supervisors, Assaturian brought his pet to work every day. Assaturian ordered a “service animal” card for Sugar Bear, but never notified his managers of that fact either. He kept a small dog kennel and dog toys in his office, but allowed the dog to roam freely in the office and to urinate on the floor, according to co-workers.
Over a year later, HR learned for the first time that Assaturian had brought his dog at work after a rare trip to the Honolulu location by management. In November 2011, HR called Assaturian to notify him that Hertz “had concerns with allowing employees to bring their pets to work,” which did not go over well. Assaturian used profane language with the HR representative and hung up on multiple occasions, to the point where, despite calling him back several times, the HR representative “did not have a chance to fully explain Hertz’[s] position.” Assaturian did mention, however, that Sugar Bear helped with his “anger issues,” “emotions,” and “medical condition.” After the abortive conversation, Assaturian sent HR a written apology but did not provide any documentation supporting his request to have Sugar Bear at work. There is no indication that the HR representative ever followed up by e-mail to request such documentation.
Subsequently, following another shouting incident with a subordinate employee, Assaturian was terminated in March 2012. Assaturian then sued Hertz, claiming that his termination was the product of disability discrimination (for his proctitis and colitis) and retaliation in violation of Hawaii state law. When asked during his deposition why he never provided documentation to Hertz, he claimed that he “just didn’t get around to asking” his therapist for any such records.
Hertz moved for summary judgment, responding that it lacked notice of Assaturian’s disability, that Assaturian never properly requested a reasonable accommodation, and that Assaturian failed to mitigate his damages.
The United States District Court for the District of Hawaii denied the majority Hertz’s motion. Viewing the evidence in the light most favorable to Assaturian, the court concluded that a reasonable jury could find both that “Hertz’s decisionmakers knew of his disabilities” and, importantly, that Assaturian’s outburst-related termination may have actually been “conduct that was symptomatic of his disability[.]” The court further explained that “the record is inconclusive with respect to what Hertz knew about Assaturian’s disability and whether having Sugar Bear at work would be a reasonable accommodation,” finding a factual dispute as to who had caused the required interactive process to break down. On the other hand, the court agreed with Hertz that, due to Assaturian’s complete failure to apply for other jobs following his termination, he had not mitigated his damages. Consequently, the range of remedies available at trial to Assaturian is limited.
The Ninth Circuit has a reputation for being one of the more employee-friendly jurisdictions, and this case only furthers that reputation. Regardless of your views, however, the case does reinforce one point for employers. Even if the failure to do so won’t always result in dog urine on their work floors, large employers should maintain local contacts and resources (HR, supervisors, etc.) that are kept informed of each jobsite and maintain open lines of communication with their employees. That being said, the case does provide some solace to employers: former employees, no matter what their health conditions, must make reasonable efforts to mitigate their damages.