Termination of Employment Due to a Past Adverse Board Action

Pharmacy Times, December 2016 Heart Health, Volume 82, Issue 12

A pharmacist was terminated from employment by a chain pharmacy due to a history of adverse action by the state board of pharmacy.

ISSUE OF THE CASE

A pharmacist was terminated from employment by a chain pharmacy due to a history of adverse action by the state board of pharmacy. May the pharmacist maintain a lawsuit against the employer due to discrimination based on his history of drug addiction, which led to the board action?

FACTS OF THE CASE

A pharmacist in a western state was terminated from his position when the employer implemented a new “credentialing policy” with a provision that individuals with a history of adverse action by a state pharmacy board were deemed ineligible for employment. This individual had been employed elsewhere as a pharmacist when he became addicted to drugs. He was charged with 17 counts of prescription forgery, leading to his referral to a drug court rehabilitation program. This is an alternative to a traditional court or justice system and is designed to keep an individ- ual in a rehabilitation program long enough for the program to work, usually a minimum of 1 year. This also includes close supervision of the individual in the drug court program.

The pharmacist’s successful completion of the drug court supervised rehabilitation program led to dismissal of the criminal charges levied against him. However, he had to surrender his license to practice pharmacy for 5 years, after which his license was conditionally reinstated by the board.

He commenced working for the pharmacy chain in the role of pharmacy intern. When he took the position, he informed officials of the chain about the prior suspension of his pharmacy license. This was a requirement of his reinstatement by the board. He was subsequently promoted to staff pharmacist with the chain. Three years later, he was terminated despite, in his view, performing the job duties well and without incident. The basis for his termination was the chain’s newly adopted “credentialing policy.” The parties agreed that at the time of employment termination, the pharmacist was still considered to be on probation with the board of pharmacy. The pharmacist filed a claim in federal court in a class action lawsuit on behalf of himself and all similarly situated pharmacists across the country who had been terminated pursuant to the chain’s revised policy. The basis for his suit was an allegation that the policy, and actions taken pursuant to the policy, violated the federal Americans with Disabilities Act of 1990. The defendant pharmacy chain moved to have the court dismiss the lawsuit.

THE COURT’S RULING

The court dismissed the claim with prejudice, meaning that its judgment is final and bars the plaintiff from bringing another legal action on the same claim.

THE COURT’S REASONING

A claim under the Americans with Disabilities Act requires that the plaintiff prove that (1) he has a disability, (2) he was qualified for the job in question, and (3) an adverse employment decision was made based on his disability. In this context, “disability” means the plaintiff must prove that he has a physical or mental impairment that substantially limited at least 1 major life activity.

The employer based its motion seeking dismissal of the suit on its position that the pharmacist is not “disabled” within the meaning of the statute. Moreover, the chain’s position was that the pharmacist was not terminated for being a “recovered or recovering drug addict,” but rather because he had a history of forging prescriptions, which led to suspension of his pharmacist license by the state board.

The pharmacist’s response to that position was that he was alleging a disparate impact claim; that is, the chain’s policy tends to screen out qualified individuals with disabilities—individuals who have “been addicted and who have successfully participated in a supervised rehabilitation program.” He identified legal authority that states addiction can be a disability and that this characterization can persist even after completion of rehabilitation. The court did not agree with his position that terminations based on the chain’s policy would screen out a class of disabled individuals.

The court concluded that the pharmacist’s termination was based on his past activities, which involved forgery, and this—not any disability—was the basis for the decision leading to suspension of his pharmacy license. The Americans with Disabilities Act distinguishes between addiction and addiction-related misconduct. It was the latter that led to the termination, not the former.

Dr. Fink is a professor of pharmacy law and policy and the Kentucky Pharmacists Association Endowed Professor of Leadership at the University of Kentucky College of Pharmacy, Lexington.