A Capehart Scatchard Blog

HIV Positive Employee Shows Enough Evidence to Defeat Employer’s Motion for Summary Judgment

By on August 20, 2013 in ADA with 0 Comments

Winning on summary judgment on fact sensitive ADA cases can be quite difficult as seen in Croy v. Blue Ridge Bread, Inc. d/b/a Panera Bread, 28 ADA Cases 414, (W.D. Va. No. 3:12-cv-00034, July 15, 2013).

Mark Croy worked for Blue Ridge Bread (hereinafter BRB) as a café worker. In 2008, he received a promotion in the marketing department.  He received a formal write-up on March 14, 2009 for failing to properly prepare for an in-store event and a second write-up on May 21, 2009 for failing to update a store’s Facebook page in a timely manner.  He received a third write-up on December 28, 2009 for using an inappropriate tone in a phone call with his supervisors.  He also repeatedly failed to submit Product Request Forms which led to shortages in product.

Notwithstanding these deficiencies, Croy had a performance review in 2009 that resulted in a “meets expectation” assessment.  He also claimed that he was told in 2010 that his performance was excellent and he would be getting a large bonus.

In February 2011, Croy began to experience flu-like symptoms and needed time off to see a doctor.  He worked reduced hours for several days. He was given a preliminary diagnosis of HIV on March 10, 2011.  He sent a Facebook message that same day to one of his supervisors stating that he went to an infectious disease specialist and there were strong indications that he had a virus like HIV.  He said that over the next few weeks he had numerous conversations with two supervisors advising them of his HIV diagnosis.

On March 14, 2011, Croy returned to his regular schedule. He said his supervisor asked him to provide a doctor’s note stating that he was physically able to return to work.  However, on March 24, 2011, Croy applied for a disability insurance policy through BRB.  On March 25, 2011 Croy presented a note from his doctor stating that he was able to return to work full-time without any restrictions.  The note said nothing about his medical condition.

BRB denied that it was aware of the HIV diagnosis.  At most, the company said it had been made aware of the possibility of such a diagnosis.

On March 29, April 4, and April 8, Croy once again failed to submit Product Request Forms.  Croy admitted his mistake:  “No questions . . . I screwed it up. I am just at a lost at [sic] my mind the past few weeks.  Too much going on I guess and too much distraction . . . I am sorry to let you and the department down like this, but I view it as a temporarily distracted and worried time in my life that will not be repeated.

Pursuant to the company’s three strike policy, Croy’s employment was terminated.  The company claimed that after the termination, in mid-April 2011, Croy then advised for the first time that he was HIV positive. Croy sued under the ADA, claiming that BRB terminated his employment because of his HIV positive status.

The company made a motion for summary judgment and argued that Croy had repeatedly been written up for violations, particularly in 2009, and repeatedly failed to submit Product Request Forms.  According to the company, this was the sole reason for his termination.  The Court did not accept this position. “While Croy admits to some performance errors during his nearly five-year tenure with BRB, he was never told he was in danger of losing his job until the March 28, 2011 write-up.  His most recent performance review indicated that he was meeting expectations, and he had recently been told that he was doing an excellent job and would be receiving a substantial bonus in the coming year.

In a key point of the decision, the Court noted that the company had never formally disciplined Croy until close in time to his diagnosis. “By the defendant’s own admission, Croy had made similar mistakes numerous times in the past and had never been formally disciplined.  Additionally, Croy reports that a number of his co-workers, including his supervisors Jackson and Perpetua, also failed to properly submit PRFs and were not disciplined for their mistakes. The court believes that Croy has at least established a genuine question of fact as to whether he was meeting BRB’s expectations.

The Court observed that Croy had not been perfectly clear regarding his diagnosis.  In fact, in one place on his disability application he had denied having had any diagnosis of HIV in the past seven years.  Nonetheless, the Court said that there was a significant dispute whether Croy had told his two supervisors about his diagnosis before he was fired. “Although the defendant can dispute this version of events at trial, it cannot do so at summary judgment where the plaintiff’s testimony must be credited.  Moreover, it is undisputed that, at the very least, Croy told his supervisors of a preliminary diagnosis of HIV, as documented in the March 10, 2011 Facebook message he sent to Jackson.

It is important to understand this decision merely allowed the case to proceed to trial, meaning that a jury could ultimately conclude either that the company terminated Croy for purely performance reasons or that the company improperly terminated him on account of his HIV status.  In analyzing what went wrong for BRB, the case shows why a company not only needs to document deficiencies on the job but also take progressive discipline if the problem recurs.  The failure of the company to put Croy on notice that his job was in danger when he made repeated mistakes in prior years came back to hurt the company’s chances in its motion for summary judgment.


This blog article was researched and written by John H. Geaney, a member of the executive committee and equity partner at the law firm of Capehart Scatchard. The content of the this article is intended to provide general information on the topic presented, and is offered with the understanding that the author is not rendering any legal or professional services or advice. This article is not a substitute for legal advice. Should you require such services, retain competent legal counsel.


About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.


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