Articles Posted in Reasonable Accommodation

Published on:

The United States Court of Appeals for the 3rd Circuit has affirmed a New Jersey District Court’s decision denying post-trial motion for judgment by Walmart after the jury entered a verdict against them in favor of a former employer.  The former employee, Barry Boles, claimed that he was unlawfully terminated by Walmart in retaliation for taking medical leave because of his disability.  The jury agreed, and found Walmart liable for back pay damages in the amount of $130,000, emotional distress damages in the amount of $10,000, punitive damages in the amount of $60,000 and attorney fees and costs in the amount of $200,000.  Walmart appealed the decision to the Court of Appeals.

In this case entitled, Barry Boles v. Wal-Mart Stores, Inc., the employee Mr. Boles had worked for Walmart for many years.  Mr. Boles first went out on a medical leave on May 8, 2011, after going to the emergency room for a large blister on his leg.  The large blister progressed into a five or six inch ulcer requiring Mr. Boles to take an extended medical leave of absence.  Walmart eventually placed Mr. Boles on medical leave pursuant to the Family and Medical Leave Act from June 22, 2011 through September 10, 2011.  During his FMLA leave, Mr. Boles’ treating doctor provided a certification that advised Walmart that Mr. Boles would not be able to return to work until October/November, 2011.

On October 23, 2011, Mr. Boles returned to work, but learned that he could not log onto his computer.  Mr. Boles attempted to reach out to the Market Human Resource Manager, Quawad McDonald, to find out his status, but his attempts were ignored by Mr. McDonald.  Finally, on or about October 29, 2011, Mr. Boles received a letter from Mr. McDonald advising him that he had been terminated as of October 25, 2011 for “failure to return” to work.

Published on:

The New Jersey Appellate Division decided that a company’s mandatory program and policy implemented only against employees suffering from alcoholism is a violation of the New Jersey Law Against Discrimination. In A.D.P. v. ExxonMobil Research Company, ExxonMobil Research and Engineering Company (Exxon) forced employees identified as recovering alcoholics to sign a contract that required only those employees to submit to mandatory clinical drug testing for two (2) years and monitoring for an additional three years. Other employees were not subject to drug or alcohol testing except for cause. In reversing the lower court’s grant of summary judgment in favor of Exxon, the Appellate Division determined that the additional terms and conditions of employment imposed by Exxon based on Plaintiff’s disability of alcoholism constitutes a claim for disability discrimination.

Plaintiff began working for a predecessor company of Exxon in 1978 as a research technician. She continued with Exxon and worked for a total of twenty-nine years. Plaintiff was consistently ranked as a top performer and received eight promotions from 1983 through 2005 becoming a Senior Research Associate. After the death of Plaintiff’s husband in 2004, she suffered from depression and other medical conditions. In August of 2007, Plaintiff disclosed to a nurse at Exxon that she was an alcoholic and planned to check herself into an inpatient rehabilitation program in order to receive treatment for her alcohol dependency and depression. Plaintiff successfully completed inpatient rehabilitation at Carrier Clinic and outpatient treatment at Hunterdon Medical Center. Before Plaintiff was allowed to return to work at Exxon, she was required to sign an after-care contract pursuant to Exxon’s company-approved after-care program. The after-care contract identified Plaintiff as an employee recovering “from chemical dependency” and mandated she participate in the after care program, totally abstain from alcohol and drugs not prescribed by a physician, submit to clinical substance testing for a minimum of two years after completion of a Primary Treatment Program and be monitored for an additional three years. The mandatory testing was to be periodic and unannounced. The policy applied to Plaintiff also stated that an employee suffering from alcohol or drug dependency that refuses rehab, fails to respond to treatment, or fails to exhibit satisfactory work performance would be disciplined up to and including termination.

In fear of losing her job, Plaintiff signed the after-care contract and submitted to nine (9) random breathalyzer tests between October 29, 2007 and August 20, 2008. Exxon had no reasonable cause to believe Plaintiff had been drinking alcohol at work or was intoxicated when these breathalyzer tests were administered. The tests were administered solely because of the after-care contract Plaintiff was required to sign as a recovering alcoholic. On August 22, 2008, Plaintiff was forced to take yet another “random” breathalyzer test. This test produced blood alcohol concentration (BAC) readings of .047 and 0.43.3. These readings are well below the threshold BAC of 0.08 set by New Jersey law as driving under the influence. Plaintiff was terminated on August 26, 2008. Exxon articulated that the only reason Plaintiff was terminated was because she violated the after-care contract in having a positive test. Exxon confirmed that, “an employee’s status as an alcoholic is the lone trigger for requirements of total abstinence and random testing without cause.” The company also confirmed that Plaintiff performance had absolutely nothing to do with her termination and that even if she was in the top 1 percent of her group, she would still have been terminated for failing the test.

Published on:

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.

Published on:

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.

Published on:

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.

Published on:

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.