New Jersey Employment Lawyers BlogArticles Posted in Reasonable Accommodation
Court of Appeals Allows Disabled Employee To Pursue ADA Wrongful Termination Claims
The United States Court of Appeals Third Circuit has reversed a district court’s dismissal of a disability discrimination lawsuit brought by a registered nurse against her former employer. In the lawsuit captioned Aleka Ruggiero v. Mount Nittany Medical Center, the registered nurse claims that she was unlawfully terminated from her employment in violation of the Americans with Disabilities Act (“ADA”) for being terminated after refusing to get required vaccination because of her disability.
The plaintiff, Aleka Ruggiero, was employed as a registered nurse at Mount Nittany Medical Center before being terminated in July of 2015. According to the Complaint, Ms. Ruggiero suffers from severe anxiety and eosinophilic esophagitis, which limited her certain areas of life, including her ability to eat, sleep and engage in social communications. Despite her disabilities, Ms. Ruggiero was able to perform her job duties.
However, Ms. Ruggiero was required by the medical to receive a vaccination for tetanus, diphtheria and pertussis (the “TDAP”) vaccination as a result of her position as a nurse. After not obtaining the vaccination prior to the deadline mandated by the hospital, Ms. Ruggiero provided a medical note from her doctor that medically exempted her from having to receive the vaccination. Mount Nittany Medical Center rejected the doctor’s note and requested further detail concerning Ms. Ruggiero’s medical inability to get the TDAP vaccination. After the treating doctor provided further information from the treating doctor, the medical center again rejected it as insufficient. The medical center also rejected Ms. Ruggiero’s request to wear a surgical mask while at work as a different form of reasonable accommodation. After rejecting both reasonable accommodations requests, Ms. Ruggiero was eventually terminated after she missed the new imposed deadline to obtain the TDAP vaccination.
Court Affirms Arbitrator’s Award Upholding Termination of Veteran Teacher for Shoplifting
An arbitration award supporting the termination of a Woodbridge teacher for repeated shoplifting has been affirmed by the New Jersey Superior Court and Appellate Division. In this case, Michele Schwab v. Woodbridge Township School District Board of Education, the terminated teacher argued that her shoplifting incidents were caused by a mental health disability and that she should not have been terminated for cause. In rejecting this argument on appeal, the courts have issue another reminder of how difficult it is to overturn the decision of a private arbitrator.
During her sixteen years as an educator, Michele Schwab received awards such as “Educator of the Year” and was frequently described as a highly effective teacher. However, in February of 2015, Ms. Schwab engaged in criminal behavior by shoplifting from a store in the Woodbridge Center Mall. Ms. Schwab’s arrest and the charges against her were later dismissed. More than a year later, she again was charged with shoplifting and pled guilty to the charges brought against her after a video of the act surfaced on social media. The video of her shoplifting that was seen by several of her fourth-grade students. Ms. Schward did not report her arrest to her employer, which the Board of Education claimed is a violation of a district policy.
When the school learned of the charges, Ms. Schwab was placed on suspension pending an investigation. Ms. Schwab’s employer additionally filed tenure charges against her, citing two counts of theft, failure to report her arrest, violation of district policies, and a pattern of unbecoming conduct. The charges were transmitted to an arbitrator for a hearing. After an investigation, the arbitrator decided that the Board of Education had established just cause to discipline Ms. Schwab, and that termination was an appropriate response to her charges.
USTA Changes Pregnancy Accommodation Policy
The United States has been slowly progressing towards equity when it comes to employment policies that outlaw gender, disability, and other types of discrimination. Despite this advancement, there are a few areas that have shown reluctance to moving forward. One such industry is that of professional sports. As a result of the nature of sports related occupations, issues such as disability, gender, and pregnancy discrimination have proven difficult to overcome. Athletes who are considering starting a family must contemplate the reactions of their sponsors, fans, and coaches, and they fear the cancelling of sponsorships as well as receiving less playing time from their coaches. Fortunately, a recent situation arose in women’s professional tennis that forced the United States Tennis Association to quickly consider changes to pregnancy and discrimination policies.
Arguably the greatest female tennis player in history, Serena Williams has won twenty-three Grand Slam singles titles since 1999, as well as four Olympic gold medals and seventy-two total career singles titles. Williams recently took a leave of absence from competing as she became pregnant and gave birth to her child, Olympia, in September of 2017. She also unfortunately experienced severe complications from this pregnancy that added to the physical strain of giving birth. Despite her record-breaking athletic history, she returned from pregnancy leave to find that she was unseeded in the French Open this year. In professional tennis, seeds are awarded to the highest ranked players of the year, and unseeded players encounter additional obstacles in the tournament, such as facing highly competitive players very early on in the tournament. For such a successful and powerful athlete as Williams, not being awarded a seeded spot following her pregnancy was not only disrespectful, but also viewed as discriminatory.
As a result of the backlash that the actions of the French Open have received, the United States Tennis Association (USTA) has announced that they plan to alter their seeding procedure in order to take into account additional factors that may have influenced an athlete’s ranking, which will include pregnancy and the complications that arise from the condition. Wimbledon already reserves and occasionally exercises the right to alter computer calculated seeding if they feel there are additional factors (such as pregnancy) that should be taken into consideration. In support of Wimbledon’s practice, the President and Chairwoman of USTA, Katrina Adams, explained that players should not be penalized for exercising their rights to start a family, and that the new US Open policy will help the sport to achieve greater equality and strike down discriminatory practices. Adams compared the French Open’s actions to the business environment, stating that forcing a player to return from maternity leave to a lower ranked position would be the same as having a business executive return to an entry level position. If this happened in any company in the United States, the employer would be guilty of pregnancy discrimination. Why is this not the case with the Women’s Tennis Association?
Holmdel Graduate Denied Accommodation at High School Graduation Ceremony
As reported by Asbury Park Press, a Holmdel High School student is claiming that school officials prohibited her from coming on to the stage to receive her high school diploma during last week’s graduation ceremony. The incident has sparked outrage from some in the community concerning the school’s lack of planning and communication to accommodate the student’s ability to come onto the stage with her wheelchair. To their credit, school officials fully accepted blame and have apologized to the student for what it has referred to as a significant mistake. This unfortunate incident is an example of the profound impact that a failure to provide necessary accommodations to a disabled person can have in his or her life experiences.
Individuals who suffer from disabilities face significant obstacles throughout their lives, which include often being excluded from certain activities and other life events. Both federal and state laws, including the federal Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination were enacted to prohibit certain forms of discrimination in employment, schools and in other public places of accommodation. These anti-discrimination disability laws are designed to provide disabled employees the assistance they need in order to be employed, receive an education and be properly accommodated in the public domain.
The New Jersey Law Against Discrimination specifically identifies schools as a place of public accommodation. A place of public accommodation may not discriminate against disabled persons and must provide reasonable accommodations unless it is shown that the requested or needed accommodation would impose an undue hardship. If a disabled student needs or requests a reasonable accommodation, the school must initiate an interactive process to search and determine what appropriate reasonable accommodation is necessary. This interactive process requires the school to take some initiative and identify the potential reasonable accommodations that could be adopted to overcome the student’s precise limitations resulting from the disability. The law requires all parties to act in good faith to explore potential accommodations. A school that obstructs or delays the interactive process or fails to communicate with the other party will be viewed as not acting in good faith. When this occurs, the courts will attempt to isolate the cause of the breakdown and then assign responsibility.
Court of Appeals Rejects Walmart Appeal Seeking to Overturn Disability Retaliation Verdict
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.
COURT FINDS EMPLOYER’S ALCOHOL POLICY IMPOSED ONLY ON RECOVERING ALCOHOLICS IN VIOLATION OF THE NEW JERSEY LAW AGAINST DISCRIMINATION
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.
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?
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
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.