E.E.O.C. v. Blue Cross Blue Shield of Connecticut, 3:97CV0890 GLG.

• Decision Date: 21 December 1998
• Docket Number: No. 3:97CV0890 GLG.,3:97CV0890 GLG.
• Citation: 30 F.Supp.2d 296
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BLUE CROSS BLUE SHIELD OF CONNECTICUT, Defendant.
• Court: U.S. District Court — District of Connecticut

Page 296

30 F.Supp.2d 296

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. BLUE CROSS BLUE SHIELD OF CONNECTICUT, Defendant.

No. 3:97CV0890 GLG.

United States District Court, D. Connecticut.

December 21, 1998.

Deborah Reik, Trial Attorney, James L. Lee, Regional Attorney, Anna M. Stathis, Supervisory Trial Attorney, Equal Employment Opportunity Commission, New York, NY, for Plaintiff.

Paul S. Tagatac,Maureen Danehy Cox, Carmody & Torrance, Waterbury, CT, for Defendant.

OPINION

GOETTEL, District Judge.

The Equal Employment Opportunity Commission ("EEOC") has filed suit alleging that Blue Cross Blue Shield of Connecticut ("Blue Cross") violated Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a), when it rescinded an offer of employment to a job applicant on the basis of a perceived disability, after receiving a report of his pre-employment physical. Subsequent medical tests by the applicant's own physician revealed that his condition was something other than that suspected by the employer and was less of an immediate health threat. The EEOC has now moved for partial summary judgment on the ground that the employer's rescission of the job offer discriminated against the applicant in violation of the ADA. Blue Cross has responded that the applicant was not medically qualified for the job at the time the offer was rescinded, and has cross-moved for summary judgment on this ground, as well as statute of limitations grounds.

After due consideration of the moving papers and supporting materials and after oral argument, this Court denies both motions for summary judgment. For the reasons discussed more fully below, the Court finds that this action was timely filed and, thus, denies Blue Cross' motion for summary judgment on limitations grounds. As to whether Blue Cross violated the ADA in rescinding the offer of employment on the basis of the applicant's perceived disability, the Court finds genuine issues of material fact that preclude granting summary judgment to either party. Accordingly, this Court denies the cross-motions for summary judgment.

FACTS

In September or October, 1993,¹ Mario Pannone, the Charging Party, applied for a position as a Dishwasher I² with Blue Cross. At the time, Mr. Pannone was working in the kitchen at a Roy Rogers restaurant and was unaware that he was suffering from any type of kidney disease. He was interviewed by Paul Caron, the Cafeteria Manager at Blue Cross, who spent approximately thirty minutes with Mr. Pannone and his wife, showing them the kitchen and describing what the job entailed. (D. Pannone Dep. at 43). Mr. Caron was pleased with Mr. Pannone's work experience and found him qualified for the job. (Caron Dep. at 21, 22). Mr. Caron offered Mr. Pannone the position subject to a pre-employment physical examination, which Mr. Caron indicated was for the purpose of determining if Mr. Pannone had a communicable disease. Blue Cross, however, states that it required a physical of all applicants whose jobs would be physically demanding or those who would come in contact with noxious substances. (Liben Dep. at 20). A dishwasher position was one of the jobs requiring a pre-employment physical because of the heavy lifting and the degree of physical activity involved. (Liben Dep. at 22). It is undisputed, however, that Mr. Caron found Mr. Pannone to be qualified for the position and wanted to hire him, the only condition being the pre-employment physical.

Mr. Pannone then met with another Blue Cross representative, Roseanne St. John, who had him fill out a formal application, described to him the 401(k) plan and health insurance benefits, and then referred him to Community Health Care Plan ("CHCP"), a Blue Cross affiliate,³ for his physical. (D. Pannone Dep. at 13-18).

On November 3, 1993, Mr. Pannone reported to CHCP, where he was examined by Gina Morgenstein, a physician's assistant, and had various laboratory tests performed. Ms. Morgenstein determined that Mr. Pannone's laboratory test results showed indications of kidney disease in that his BUN and creatinine levels⁴ were approximately twice the normal limits, he had protein in his urine, and his hematocrit was low. Ms. Morgenstein received Mr. Pannone's laboratory results on November 4, 1993, and contacted Mr. Pannone's wife that same day, advising her of the elevated kidney functions and indicating that this was a matter of serious concern. Mrs. Pannone stated she would contact the West Haven V.A. Medical Center to arrange an immediate follow-up for her husband. This was noted in the report of Mr. Pannone's physical.

The CHCP report states under "Physician's Summary, Remarks and Diagnosis:"

Abnormal laboratory results suggestive of kidney disease. Pt. instructed that he must receive a full workup of this as this is potentially quite a serious problem.

Then, under "Physician's Recommendations" the report stated:

Pt. to obtain records from this Health Check and from North Haven Medical Center to have complete workup of abnormal lab values including kidney function.

This report was sent to Karen Civali, the Occupational Health Nurse at Blue Cross. Ms. Civali states that she was concerned about Mr. Pannone's blood pressure, as well as his lab results that showed elevated BUN and creatinine levels which "together signified some sort of kidney problem or potential kidney problem." (Civali Dep. at 11, 13, 15). She consulted with Dr. Eric Liben, a physician consultant for Blue Cross, and they decided "that the man had a problem and that he was not a good candidate for the job." Id. at 16. According to Ms. Civali, Dr. Liben told her not to hire Mr. Pannone until his blood pressure and renal problems were under control. Id. Ms. Civali testified that, in making this decision, she did not consider the position for which he was applying. "[T]here was not a question as the type of job that this man was applying for. We were looking at whether or not he passed a physical. He did not pass the physical." Id. at 20. "He was a sick man and his test results and his physical here showed us that there was something the matter with him and he needed to seek some sort of treatment or help." Id. at 17. She did indicate that, if Mr. Pannone had wanted to submit his own doctor's report or other documentation, that information would have been taken into consideration, but that she was not aware of any such documentation being submitted. Id. at 21.

Dr. Liben testified that, in reviewing pre-employment physicals, he always looked over the job description of the position for which the applicant was being considered. (Liben Dep. at 30). He would then review the report of the physical with a concern toward whether the applicant could perform the essential functions of the job without endangering his or her own life and whether the applicant would be a threat to the safety of others. Id. at 29. Dr. Liben testified regarding his review of Mr. Pannone's records:

The two significant concerns with Mario Pannone that make this case very unique and concerning is his blood pressure of 170 over 100 and lab work, as found on the last page, in which a creatinine of 3.4 and a BUN of 46 are noted.

In addition, associated concerning aspects would be a description of the fact that there had been no known kidney disease, that he appeared older than his stated age, that he was overweight, that he had bluish discoloration of his toes.

Oh, and his urinalysis, which showed three plus protein and four plus blood in the urine.

As well, he has a hematocrit, which is a bloodcount, of 35.7, with a normal MCV, taken together....

The two issues that were of most concern to me were the two that I mentioned up front.... [A]t the time this was obtained, he had lost about half or more of his kidney function....

These are findings that, at this point in time, with no other information, would lead one to be concerned about the possibility of primary hypertension.... causing damage to this man's body, the extent to which was not apparent; and because he was asked to do a job that entailed a degree of lifting and activity, not a sedentary job, this man may have been ... subjecting himself to danger because of the associated problems he may have had with other body organs, such and his heart and his blood vessels. ...

So to have this man go out unrestricted with a blood pressure at this range and the concern that he had damage to his kidneys coming from his high blood pressure, would not have been correct.

Id. at 41-45. Dr. Liben then described other abnormalities that appeared in Mr. Pannone's test results, including blood in his urine, anemia, elevated uric acid, which further substantiated his concern that the hypertension had damaged his kidneys and was potentially damaging his other vital organs. Id. at 45-46. Dr. Liben was very careful to point out that he could not make a definitive diagnosis based upon the information which he had before him and that there were a number of other possible diagnoses to consider. Id. at 48.

In the meantime, as a result of the call from CHCP, which Mrs. Pannone recalls in far more alarming detail than Ms. Morgenstein, Mrs. Pannone immediately took her husband to the V.A. Hospital emergency room, where a variety of tests were performed and he was referred to Dr. Kevin McConnell, a kidney specialist. Over the next two weeks, additional tests, including an ultrasound, were performed. On November 18, 1993, Mr. Pannone saw Dr. McConnell, who diagnosed Mr. Pannone with polycystic kidney disease.⁵ (McConnell Dep. at 6). Dr. McConnell also treated Mr. Pannone for hypertension for a period of several weeks.

Dr. McConnell testified that because polycystic kidney disease is a "chronic condition as opposed to one which is going to be an acute and abrupt change in his renal function," Mr. Pannone was employable for certain jobs depending on the kind of work he would be doing. Id. at 27. Dr. McConnell was of ...