Long-time employee and employer dispute accommodation request and verbal resignation. $11.2M. San Diego County.

Facts and Background

• Facts and Background:

  Alice Roque worked for Octapharma Plasma, Inc. (OPI) for 19 years. OPI is a plasma donation center. Donors must be screened by medical screeners to get cleared to donate. One part of the screening is reading proteins, which is what Alice did from 2002 until February 2021. She typically read proteins while seated, at least in her later years.

  On February 2021 (because of a change in state law), OPI changed Alice’s duties so that she had to do the entire donor screening process, which involved meeting donors, taking a small finger prick of blood, doing vitals on them, etc. (not just reading proteins). The donor screening job, Alice was told, had to be done while standing. Alice was 74 years old at the time and was used to working while seated. According to Alice, she twice asked Center Director Shawn Karmikel to be allowed to use a chair to screen donors because her back was hurting from standing. Karmikel denied that she ever requested a chair.

  Alice did the standing job on February 17, 2021 for about 3.6 hours then went home early, testifying this was from back pain. On February 18th, she worked about 5.15 hours (full shift) but she called off on February 19th because of back pain. She returned on February 20th, worked about 4 hours and then had a conversation with her Assistant Manager Shannon Wilkinson that was a key factual dispute in the case. According to Alice, she told Wilkinson that her back was hurting, she couldn’t work for the day and needed to go home early. According to Alice, Wilkinson responded that if Alice was resigning, Alice needed to submit her written two-weeks notice. According to Alice, she replied to Wilkinson that she wasn’t resigning, she just needed to go home early. According to Wilkinson, Alice said she was resigning and Wilkinson asked Alice to submit her written two-weeks notice, which Alice said she would do. Right after this discussion, Wilkinson wrote a text message to other managers, stating that Alice had given her verbal two-weeks notice stating that her back was hurting from standing.

  Alice had scheduled off days on February 21st and then on February 22nd she texted Wilkinson that she would not be in Wednesday (Feb 24th) because her back was still hurting. On February 24th, Alice called out again and spoke with Center Director Karmikel who, according to Alice, told Alice she could not file a worker’s comp claim because she had not fallen at work or injured herself. Alice then went to her own doctor at Scripps and got a note taking her off work until March 5th, which she submitted to OPI.

  She then had a series of phone calls with Karmikel and Regional Director John Fulcher including on February 26th. The content of these conversations was disputed, but everyone agreed that Karmikel and Fulcher both told Alice that they had accepted her resignation and asked her to submit a written resignation (as OPI policy preferred but did not expressly require). Alice said she disputed resigning to them, but they both denied that Alice ever disputed resigning initially. Eventually, however, Karmikel agreed that Alice did say she did not want to resign. But, according to Karmikel, Alice said she did not want to resign anymore, agreeing in effect that she had initially resigned. It was undisputed that Alice did not ever send a written resignation.

  Instead, on March 5th she provided a second doctor’s note, this time taking her out to April 3, 2021 (well past the alleged two-week notice period of March 6th). Alice also turned in an incident report for her work-related injury (making clear her claim was that she injured her back from standing) and she also turned in worker's comp forms. On March 12, 2021 (the day after Alice’s worker's comp claim was opened), Fulcher asked Karmikel to check with HR (Apryl McCoy in North Carolina) to see if they could move forward with terminating Alice based on a verbal resignation. McCoy approved the termination on this basis. Karmikel, Wilkinson and McCoy wrote up the termination memo which had a specific area for the employee to give comments in dispute. OPI never gave the termination memo to Alice, depriving her of the opportunity to dispute the resignation in writing.

  On March 17th, Alice was interviewed by an investigator for OPI’s worker's comp carrier. In that interview, the investigator asked Alice if she had resigned and retired. Alice said no. This made Alice concerned that she had been fired. So she texted Fulcher asking if she was fired and asking what Karmikel had done. Instead of investigating this, as was his job, Fulcher passed it back to Karmikel to handle. Karmikel called Alice and, according to Alice, berated her, saying she had resigned and he had accepted her resignation. Seeing it went nowhere with Karmikel, Alice then sent a detailed two-page complaint email to Fulcher spelling out how she was subjected to discrimination, etc. Nobody ever responded to Alice.

  Initially in litigation, OPI denied receiving this email. Then, after Alice produced it in the litigation and as part of Fulcher’s deposition, OPI claimed the email was received by its email system but Fulcher never got it because it went into his “junk folder.” Post-termination, Alice did not treat psychologically. She did pursue the worker's comp claim and the jury heard that she hired a worker's comp lawyer in February or March while she was still employed. Alice also testified that her regular doctors said she did not need any psych care. In October or November 2021, Alice did start to look for work some. She got a call from Quest in San Juan Capistrano, an hour-plus drive away from San Diego, but declined to go in for an interview. She then stopped looking for work.

• Plaintiff's Contentions:

  Plaintiff alleged that OPI failed to accommodate her disability by failing to provide her a chair, when the screening job (or at least significant parts of it) could have been done while seated. Also, that the three days of standing work aggravated her underlying asymptomatic degenerative disc disease in her back and made it symptomatic, requiring medical care and continued physical pain and suffering.

  Plaintiff also alleged that the termination of her employment based on the pretext of resignation was based on her age.

• Defendant's Contentions:

  OPI alleged that there was no failure to accommodate a physical disability both because OPI did not know that Alice had any physical disability and because she never asked for an accommodation. OPI relied on Karmikel's denial that Alice asked for a chair, and it also pointed out that in none of Alice's multiple written communications did she ever allege she had asked for or had been denied a chair.

  OPI also contended that Alice's resignation came during COVID and OPI was already overstaffed because rather than laying off workers during COVID, OPI chose to reduce hours across the board for all employees. Thus, all medical screeners were working fewer than full-time hours. OPI thus argued that it had a legitimate reason for refusing to allow Alice to rescind what it alleged was a resignation: doing so gave more hours to other employees.

  OPI's witnesses also alleged that Alice was disgruntled with the new job duties that required her to screen donors and this motivated her decision to quit.