Disability Discrimination

Is Houston Rockets’ Royce White’s Request For His Own Doctor to Have Final Say As to Whether He Can Play a Reasonable Accommodation under the Americans with Disabilities Act?

February 1, 2013 | Smith Eibeler LLC

HBO Real Sports aired a story last night about Houston Rockets rookie Royce White and his ongoing battle for the Houston Rockets to provide him his requested reasonable accommodations under the Americans with Disabilities Act. White suffers from mental health disabilities, including Generalized Anxiety Disorder and has not been able to practice or play a game as a result of not being provided his requested for reasonable accommodations.

After a storied career at Iowa State, White was drafted by the Houston Rockets with the 16th pick in the 2012 NBA draft. Prior to the draft, the Houston Rockets, along with other NBA teams, were aware of White’s mental health disabilities and the risks associated with his disabilities that could impact his ability to perform in the NBA. After being drafted, and after signing a 3.3 million dollar contract, White has not been able to play because he believes he has not received the requested accommodations he needs for his disability.

White has requested that the Houston Rockets provide him a medical health protocol as a reasonable accommodation under the Americans with Disabilities Act. More specifically, White has asked for a driver to drive him to all NBA games, which Houston has agreed to provide him. The current sticking point between White and the Houston Rockets is White’s request to have an independent doctor have the final say as to whether White is medically able to play a particular game. White says that this is necessary because the Houston Rockets’ doctors work for the Houston Rockets and therefore have the Houston Rockets’ best interest and not his in mind when making the decision as to whether he is medically able to play. Houston Rockets will not grant this particular request because they feel it is unreasonable. After talks concerning this request hit a standstill, the Houston Rockets suspended White on January 6, 2013 and have stopped paying him his 3.3 million dollar salary.

SUMMARY JUDGMENT DENIED WHERE GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER EMPLOYEE WAS FIRED FOR POOR PERFORMANCE OR IN VIOLATION OF FMLA PROTECTED RIGHTS

January 10, 2013 | Smith Eibeler LLC

The United States Court of Appeals for the Seventh Circuit reversed a District Court’s grant of summary judgment in an action alleging TIN Inc. (“TIN”) violated the Family Medical Leave Act (“FMLA”) by interfering with an employee’s right to take leave and retaliating against that employee. The Seventh Circuit reversed the District Court’s decision that TIN terminated Mr. Jeff Pagel’s employment due to his poor performance rather than for his taking of FMLA protected leave. The Court determined that there were still genuine issues of material fact as to why Mr. Pagel was terminated. Therefore, the grant of summary judgment in TIN’s favor was reversed and the case was remanded for further proceedings.

Jeff Pagel worked for TIN as an outside salesman from May 2000 until his termination in October 2006. Mr. Pagel produced at least $7 million dollars in sales for the company per year, earning a $180,000 annual salary. On January 1, 2006, TIN instituted a new policy that required outside salesmen to submit daily activity reports to their Regional Sales Manager. Salesmen then would be given a periodic evaluation that included an assessment of their compliance with this new reporting system.

In July 2006, Mr. Pagel experienced several health problems and disabilities including being diagnosed with septal wall ischemia (a blockage in a portion of his heart). Mr. Pagel’s health problems caused him to take a medical leave of absence from work. On August 29, 2006, Mr. Pagel underwent an angioplasty and stent replacement, spent one day in the hospital and was advised to rest for several days following the operation. The next week Mr. Pagel’s symptoms returned and he was admitted to the hospital for two nights. It was determined that Mr. Pagel also had an irregular mass in his left lung that was unrelated to his septal wall ischemia.

Employer’s Best-Qualified Policy to Fill Vacant Positions does not Negate Requirement to Provide a Reassignment Reasonable Accommodation under the Americans with Disabilities Act

December 27, 2012 | Smith Eibeler LLC

The United States Court of Appeals for the Seventh Circuit clarified the interpretation of the term “reassignment” under the Americans with Disabilities Act (ADA) by concluding that an employer’s best-qualified policy to fill vacant positions would not automatically establish undue hardship to avoid the granting of a reasonable accommodation request. In EEOC v. United Airlines, the Seventh Circuit reversed the District Court’s dismissal of the Equal Employment Opportunity Commission’s (EEOC) claim brought against United Airlines on behalf of disabled employees who requested a reasonable accommodation in the form of a reassignment but were denied that request because of a “competitive transfer policy.”

In 2003, United Airlines developed “Reasonable Accommodation Guidelines” that detailed the reasonable accommodation process for current employees who were no longer able to perform the essential functions of their job due to their disability. The guidelines indicated that a transfer could be a reasonable accommodation but the transfer process was “competitive.” The competitive transfer policy essentially denied disabled employees requesting a transfer as a reasonable accommodation automatic placement in vacant positions. Instead, disabled employees would only be given preferential treatment and a more qualified candidate could be chosen for the vacant position instead. The EEOC filed this suit on behalf of disabled United Airlines’ employees affected by this policy, asserting that the Americans with Disabilities Act requires employers to advance a disabled employee requesting reassignment as a form of reasonable accommodation over a more qualified candidate so long as the disabled employee can perform the essential functions of the job and such placement does not cause an undue hardship.

The EEOC also asserted this argument in EEOC v. Humiston-Keeling. In Humiston-Keeling, the court held that “the ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it’s the employer’s consistent and honest policy to hire the best applicant for the particular job in question.” EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1029 (7th Cir. 2000). In this case, the EEOC requested the Court overturn that decision. In support of their argument, the EEOC cited to U.S. Airways Inc. v. Barnett. In Barnett, an employee of U.S. Airways injured his back but initially invoked his seniority status instead of his disability to obtain a transfer. However, two senior employees subsequently bid for the same position and the disabled employee, after asserting a request for a reasonable accommodation, was denied due to U.S. Airways’ seniority system. The Court determined that under those circumstances, the seniority system was sufficient to meet the employer’s burden of showing the accommodation was unreasonable. The Court noted that the seniority system, although a disability-neutral rule, did not provide an automatic exemption from accommodation requirements. Other facts specific to the situation established an undue hardship.

Court Finds No Need to Request Accommodation For Overall Access to Public Facilities Before Filing Suit under the New Jersey Law Against Discrimination

June 14, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed a decision of the Law Division finding that a plaintiff bringing a New Jersey Law Against Discrimination public accommodation disability discrimination claim asserting a generalized lack of access need not make a prior request for assistance or a reasonable accommodation. The court previously found that a request for assistance/accommodation from the public facility was necessary to sustain a public accommodation disability discrimination claim alleging overall lack of access. The Court disagreed and found that Plaintiff’s failure to make such a request does not negate the ongoing obligation placed on owners of places of public accommodation to ensure that all persons, including those with disabilities, can gain access.

In Lasky v. Highstown, the Plaintiff Mr. Gregory Lasky, was not able to access several public buildings and facilities during his frequent visits to Highstown, New Jersey because the facilities (including buildings, sidewalks, and parking facilities) were not built to accommodate him as a paraplegic. Mr. Lasky filed a claim of public accommodation disability discrimination under the LAD which was dismissed because the court found he failed to request assistance or an accommodation prior to filing his lawsuit.

In reviewing the lower court’s ruling, the Appellate Division looked to the legislative history of the New Jersey Law Against Discrimination. The Court specifically distinguished situations where the plaintiff brings a claim alleging lack of overall access from those where plaintiff alleges a lack of specific adaptations necessary to accommodate that person’s particular disability. Cases brought under the New Jersey Law Against Discrimination for lack of overall access to places of public accommodation do not require advance notice and/or a specific request for accommodation. Therefore, under the New Jersey Law Against Discrimination, Mr. Lasky would be able to sustain a public accommodation disability discrimination claim where Highstown failed to provide him access to sidewalks, the library, the municipal hall, the Army Navy Memorial and parking as a disabled paraplegic (N.J.S.A. 10:5-1 to -49). In contrast under Title II of the Americans with Disability Act, a plaintiff may be required to request an accommodation prior to filing a suit if there is a particularized failure to accommodate as opposed to a general one. However, even in particularized claims, plaintiff will not be required to make a prior request if the need for accommodation is obvious due to the nature of the person’s disability.

Employee Terminated for Testifying in Co-workers Discrimination Lawsuit May Proceed with Anti-Retaliation Lawsuit

May 8, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed in part and affirmed in part a grant of summary judgment dismissing Plaintiff’s failure-to-accommodate under the New Jersey Law Against Discrimination and retaliation claims. The Court agreed with the prior determination that after Plaintiff had exhausted her Family and Medical Leave Act benefits and she could not provide a definite date of when she could return to work she was not entitled to an “indefinite leave of absence.” However, the Court disagreed with the prior determination that Plaintiff failed to establish a prima facie case of retaliation because there was only indirect evidence that Defendants had knowledge of her involvement in a co-worker’s discrimination lawsuit.

In Lozo-Weber v. State of New Jersey, the Plaintiff, Ms. Lozo-Weber, was employed by the Department of Human Services and worked as an occupational therapist at the New Lisbon Development Center from November 2003 through April 2009. Ms. Lozo-Weber, a Caucasian female, witnessed what she thought to be discriminatory actions being taken against her co-workers by direct supervisor Brian Kelly and Beth Cooper, who acted as a liaison between Kelly and the other workers. From August 2004 to the time Mrs. Lozo-Weber went on maternity leave and disability for lupus, she observed the firing and relocation of various staff members who were African American or Asian. In addition to her own belief that supervisors’ actions were racially motivated, Mrs. Lozo-Weber was told that she “needed to align herself with the right side” when she addressed her concerns about the relocation of certain minority employees.

After Mrs. Lozo-Weber returned from maternity leave, she acted as a witness in a co-worker’s lawsuit against the Department of Human Services, New Lisbon Development Center and supervisors Kelly and Cooper. She then began to receive negative comments about her performance when prior to her involvement as a witness; she had received consistently stellar performance evaluations. Despite the negative comments, Mrs. Lozo-Weber continued to receive positive performance evaluations until January 9, 2008. On that date, New Lisbon Development Center issued a preliminary notice of disciplinary action against Mrs. Lozo-Weber that charged her with neglect of duty, falsification and actual or attempted theft of State property. After a hearing, all the charges were dismissed and Mrs. Lozo-Weber was awarded back pay.

Non-Jewish Employee Subjected to Anti-Semitic Harassment May Proceed with Religious Discrimination Claim

April 23, 2012 | Smith Eibeler LLC

The New Jersey Appellate Division recently reversed a trial court’s granting of summary judgment dismissing an employee’s claim under the New Jersey Law Against Discrimination when Defendants wrongly perceived the employee to be Jewish and directed daily Anti-Semitic comments at him. The court disagreed with the trial court’s determination that the employers’ perception that the employee was Jewish, when he in fact was not, did not provide grounds for a recognizable claim under of religious discrimination under the New Jersey Law Against Discrimination.

In Cowher v. Carson & Roberts Inc., the claimant, Mr. Myron Cowher, was employed with Carson & Roberts Inc. as a truck driver from April 2006 through May 2008. From January 2007 through May 2008, Mr. Cowher was subjected to Anti-Semitic statements that were made directly to him by his two supervisors on a daily basis and often in the presence of other coworkers. Although the employer initially denied making such statements, video recordings revealed Mr. Cowher’s supervisors made various Anti-Semitic statements to Mr. Cowher. For example, Mr. Cowher’s supervisors called him a “Jew bag” over 20 times, called him a “Jew bastard” and told him “Only a Jew would argue over his hours.”

Mr. Cowher’s supervisors stated that the comments were made not because they perceived Mr. Cowher to be Jewish but instead because he and his wife took a cut of a Superbowl pool they ran and thus “fit the stereotype of Jews being avaricious.” The employer claimed that these comments were nothing but “light hearted banter between co-workers.” Mr. Cowher did not agree that these comments were “light hearted banter” and complained to the supervisors and to the Facility Manager. The Facility Manager told Mr. Cowher to laugh it off and then after making another complaint, Mr. Cowher was told to ignore it and it would go away.

SUPERVISOR OF PUBLIC AGENCY CAN BE LIABLE AS AN EMPLOYER UNDER THE FMLA

February 14, 2012 | Smith Eibeler LLC

The United States Court of Appeals for the Third Circuit recently held that an individual supervisor may be liable for violating the Family and Medical Leave Act if he or she has sufficient control over the conditions and terms of employment of the employee claiming the FMLA violation. In the matter of Haybarger v. Lawrence County Adult Probation and Parole, County of Lawrence and William Mancino, the Third Circuit found that a supervisor is an “employer” under the FMLA despite the fact that the supervisor did not have the authority to terminate the employee.

In this case, the plaintiff, Debra Hayberger, worked as an office manager for the Lawrence County Adult Probation and Parole which is an agency of the Lawrence County Court of Common Pleas. Ms. Haybarger suffered from Type II diabetes, heart disease and kidney problems, which frequently required her to take medical leave from work. Ms. Haybarger’s supervisor, William Mancino often criticized Ms. Haybarger for taking the medical leave, including writing that she needed “[t]o improve her overall health and cut down on the days that she misses due to illness” in her annual performance evaluations.

In 2004, Mr. Mancino placed Ms. Haybarger on a six-month probationary period because of Ms. Haybarger’s conduct, work ethic, behavior, lack of leadership and supervisory skills. After the six months, Mr. Mancino stated that Ms. Haybarger’s employment did not improve and he made a recommendation to Judge Motto that Ms. Haybarger be terminated. Judge Motto agreed with Mr. Mancino’s recommendation and terminated Mr. Haybarger’s employment.

New Jersey Supreme Court Affirms Contingency Fee Enhancements for New Jersey Discrimination Lawyers

January 27, 2012 | Smith Eibeler LLC

The New Jersey Supreme Court has affirmed that the framework for evaluating attorneys’ fee awards made pursuant to state statutory fee-shifting provisions such as the New Jersey Law Against Discrimination that was first adopted in the case Rendine v. Pantzer, 141 N.J. 292 1995. The Court held that the Rendine decision permitting attorney fee enhancements remains valid and has not been altered by the United States Supreme Court’s decision in Perdue v. Kenny, 130 S. Ct. 1662 (2010). In Perdue, the United States Supreme Court confirmed that contingency fee enhancements are not permitted in federal fee-shifting cases. As a result of the Perdue decision, the New Jersey Supreme Court granted certification in the cases Walker v. Guiffre (A-72-10) (a consumer fraud case) and Humphries v. Powder Mill Shopping Plaza (A-100-10) and consolidated their decision of these cases into one opinion.

In Humphries, the plaintiff alleged that the defendant shopping center, Powder Mill Shopping Plaza, violated the accessibility requirements in the American with Disabilities Act (ADA), 42 U.S.C. §§ 12181-12189 and the New Jersey Law Against Discrimination (LAD)[LINK]. The plaintiff, Ms. Humphries, is handicapped as a result of suffering from a spinal cord injury in 1973. Ms. Humphries handicap requires her to use a motorized wheelchair and specialized van. In the Spring of 2005, Ms. Humphries was unable use her wheelchair in order to get into a restaurant at the Powder Mill Shopping Plaza because the ramp up to the sidewalk was too steep. Ms. Humphries was only able to gain access to the restaurant after her brother set up a portable ramp for her. Once inside the restaurant, Ms. Humphries complained to the owner regarding the unsafe ramp.

Thereafter, Ms. Humphries reached out to a New Jersey Discrimination Attorney named Ed Kopelson, who then wrote letters to the defendants regarding their non-compliance to ADA and New Jersey Law Against Discrimination applicable codes for accessibility for handicaps. After not being able to resolve the dispute, Ms. Humphries filed a lawsuit. Prior to trial, the parties stipulated that the defendants did not comply with applicable accessibility requirements of the ADA and New Jersey Law Against Discrimination, that defendants would pay Mr. Humphries $2,500 and that the amount of Plaintiff’s attorney fees’ would be decided by the trial court.