An employee's failure to provide evidence that the decision maker was aware of his disability mandates dismissal of his claim.

The plaintiff and another employee were terminated following an incident where a resident fell and was injured and the subsequent investigation by the employer revealed that proper procedures were not utilized by the employees. Following the plaintiff's termination, he filed a lawsuit, alleging that his termination was due to the fact that he is HIV-positive. In particular, the plaintiff asserted that there was a prior incident in which a patient bit him, which required a co-worker to take blood to determine if he contracted HIV. The plaintiff, however, informed the co-worker that he was already HIV-positive. The plaintiff's co-worker later took a statement from a witness in connection with the incident that resulted in the plaintiff's termination. In rejecting the plaintiff's claim, the court expressly noted that a plaintiff must demonstrate that the employer was aware of his disability in order to sustain a disability discrimination claim and that, in this case, the decision maker testified she was not aware of the plaintiff's HIV-status.

Case Law Alert - 1st Quarter 2013