A disabled employee who is doing a poor job should anticipate getting fired if he has not told his employer he needs an accommodation for his disability. Such a firing led to the Massachusetts Federal Court lawsuit of Peter Kinch v. Quest Diagnostics, Inc. Kinch had worked for Quest for approximately 25 years before he was fired on November 2005. At that time, he worked as a Processor in Quest’s Specimen Processing Department. Kinch has had Hepatitis C since the early 1990s.
Quest began experiencing problems with Kinch in 2002 wherein he received several poor annual reviews and written and oral warnings following from 2002 through 2004 criticizing him for, among other things, failing to consistently meet production standards, taking too many breaks, demonstrating little initiative, and failing to adhere to performance standards. The deficiencies continued in 2005. On two occasions in April 2005, Kinch received verbal warnings. When he failed to show improvement, in May 2005 Quest placed him on a personal improvement plan. On June 8, 2005, Kinch received another verbal warning. Over the next several weeks, Kinch satisfied Quest’s production requirement, but, unfortunately, that did not last long and on July 15, 2005, Quest issued Kinch a final written warning due to his poor production. Kinch refused to sign the warning and told his supervisors that the medications he was taking for Hepatitis C were affecting his work. They referred him to Disability Services which granted him a leave of absence effective July 18, 2005. Kinch returned to work on October 6, 2005 and his poor production resumed. On November 9, 2005, when his supervisor spoke to him about his failure to meet production requirements, Kinch explained that he was unhappy with “what he does.” Quest thereafter terminated him and he sued stating that Quest discriminated against him because of his disability and failed to accommodate him.
Prior to Kinch’s termination on or about March 2005, he told his team leader that he was starting treatment with the drug Pegintron for his Hepatitis C and gave his team leader a booklet describing possible side affects of the medication. Kinch also told his co-workers about the treatment and possible side affects. He submitted to the Court that was enough to put Quest on notice that he needed a reasonable accommodation so that he would be able to perform the essential functions of his position. The Court disagreed. Typically, an employee must request an accommodation as an employer is not required to accommodate a need that it does not know exists, unless the need for an accommodation is obvious.
In Kinch’s situation, he only gave his supervisor a booklet describing possible side affects of the medication he planned to take. He provided no evidence to the Court that he brought to Quest’s attention that the medications were actually having a negative impact on his work after he had returned from his leave of absence. In fact, instead of Kinch stating that his medications were negatively affecting his production, he stated he was unhappy with the work he does. Given the evidence submitted to the Court, it found that Kinch did not have a right to go to a jury with his claims against Quest and summary judgment was granted in favor of Quest against Kinch’s claims.
It is possible that Kinch’s medication was causing him to be depressed and distracted from his job or otherwise causing his poor performance, yet, his employer should not have had to guess what the cause was for his poor performance. It is also possible that Kinch just did not like his job and no reasonable accommodation could change that fact.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].