Employment & Labor Insider

At least, sometimes.

Very interesting recent decision in a case about a plaintiff who thought he had cancer, got fired, and then found out he didn’t have cancer after all. Then he sued his ex-employer for disability discrimination.

He’s getting a jury trial on two of his three ADA claims.

Our plaintiff – we’ll call him “Skeeve” – was a car salesman in Pennsylvania. During a non-work-related medical exam, he was tested for colorectal cancer, and the result was positive. Skeeve let his boss know and said he would need to take three days off. He also presented a note from his doctor.

Are you ready for the boss’s alleged response? Here it is:

“Are you f***ing kidding me? Your obligations are here.”

No (expletive deleted) kidding. And no asterisks in the real alleged quote.

Skeeve also went to Human Resources. As you know, I am a big supporter of HR.

But this particular HR person seems to have supported the boss. Her response to Skeeve was allegedly to remind him that they were in “peak workload season.”

Skeeve went ahead and took the three days off. He had a colonoscopy, and some biopsies.

Then he went back to work. And was immediately fired. 

About a week after he was fired, Skeeve was informed by his physician that his initial test result was a false positive. In other words, he didn't have cancer.

Great news . . . except that he didn't have a job, either.

Skeeve filed suit against his employer, alleging interference and retaliation under the Family and Medical Leave Act, failure to accommodate under the Americans with Disabilities Act, discrimination and retaliation under the Americans with Disabilities Act, and one state law claim that was not addressed in the court’s decision.

Interestingly, Skeeve’s lawsuit alleged that he was “diagnosed” with colon cancer and did not mention that he was subsequently found not to have cancer.

In any event, the employer filed a motion for summary judgment on the FMLA and ADA claims, and also asked the court to sanction (punish) Skeeve because he didn’t mention in his pleadings that, as it turned out, he didn’t have cancer at all.

The judge ruled last week that Skeeve’s disability discrimination and retaliation claims could go to a jury. He also denied the employer’s motion for sanctions. (He did grant summary judgment for the employer with respect to the FMLA and failure-to-accommodate claims.)

Here’s where the judge was coming from:

“Record of” and “regarded as” under the ADA

In addition to prohibiting discrimination based on an actual disability, the ADA prohibits discrimination based on a “record” of a disability, or because the individual is “regarded as” having a disability.

Examples of people who might have a “record” of a disability include those who are recovering from alcohol or drug addiction (and, in the case of addiction to illegal drugs, have been “clean” for a significant period of time), as well as those who are fully recovered from physical or mental conditions that they had in the past but don’t have any more.

Being “regarded as” having a disability could occur even if the individual does not have, and never did have, an actual disability. Maybe an employee is fully able-bodied but has a slight limp, and because of the limp, the employer erroneously considers him incapable of performing certain physical tasks. Or maybe he is "high strung," so the employer erroneously considers him to have a psychological condition.

"We're regarding you . . ."

In Skeeve’s case, the judge found that a jury should decide whether Skeeve was discriminated against because of the disability that he and his employer thought he had. In other words, a jury will decide whether he was fired because he was “regarded as” having colorectal cancer, a condition that would absolutely qualify as an ADA-protected disability. The fact that Skeeve eventually got the good news that his test result was a false positive would not defeat a “regarded as” ADA claim.

And because the ADA protects individuals who are “regarded as” having disabilities, those individuals are also protected from retaliation based on their ADA-protected activity related to their “regarded” disabilities. (The anti-retaliation provisions apply in many other scenarios, as well.)

FMLA, failure-to-accommodate claims dismissed

The FMLA does not have a “regarded as” provision, so you arguably have to have an actual “serious health condition” or other qualifying situation to be eligible. Because Skeeve, as it happily turned out, did not have cancer, the judge found that he had no valid claims under the FMLA.

I’m not sure I agree with the judge about this. I think the colonoscopy and biopsies based on the positive test result and suspected cancer might be enough to qualify for “continuing treatment” leave under the FMLA. If so, and if he was fired for requesting FMLA leave, that could be both FMLA interference and retaliation. (He missed three days of work, but a weekend fell in that period, so arguably his "period of incapacity" was more than three calendar days. And as the employer I certainly would have given him the time off, whether it was covered by the FMLA or not.)

Last week, Skeeve filed a motion asking the court to reconsider its dismissal of his FMLA claims. The employer's response is due this Monday, August 17.

Dismissal of the ADA failure-to-accommodate claim was more open-and-shut. The ADA does not require an employer to make reasonable accommodations for anything other than an actual disability. Skeeve was protected from discrimination based on the perception that he had cancer, but he had no legal entitlement to (or, presumably, a need for) reasonable accommodation.

Sanctions: Was Skeevie sleazy?

The employer asked the judge to sanction Skeeve for failing to mention in his lawsuit that he did not in fact have cancer. The judge refused. He noted that Skeeve didn’t mislead the employer because Skeeve himself didn’t know about the false positive until about a week after he’d been terminated. And the test supposedly had a 92 percent accuracy rate. And Skeeve wasn’t a doctor, so he may have not understood the difference between a “positive test” and a “diagnosis.” (Or that an 8 percent error rate may not be that insignificant.)

It does seem shadier that Skeeve didn’t mention the ultimate “no-cancer” outcome in his lawsuit, which wasn’t filed until after he did know that he didn’t have cancer. But he also changed attorneys in there somewhere. And the new attorney tried to correct the record in the fall of 2025.

Fascinating! Any other great information for us employers, Robin?

Yes! The employer had claimed that Skeeve was not fired because of his perceived cancer but because he was a lousy performer. But the judge noted that the timing of the termination was suspect. (As I always say, timing is everything.)

So the jury will decide whether Skeeve was fired because of his performance, or because the employer "regarded him" as having a disability.

With that alleged “F” bomb response from his boss, any bets on which way the jury will go?