Articles Posted in Disability Discrimination

Earlier this week, the New Jersey Supreme Court clarified how to determine whether an employer fired an employee because of a disability in violation of the New Jersey Law Against Discrimination (“LAD”).

Nurse wins appeal in disability discrimination caseMaryanne Grande, RN, worked for Saint Clare’s Health System for approximately 10 years.  During that time she suffered four separate work-related injuries that required her to take significant time off and led to additional periods during which she only could work light duty.

In February 2010, while moving an obese patient from a stretcher to a bed, Ms. Grande had to grab the patient to prevent him from falling.  She injured her cervical spine and needed surgery which required over four months of recovery and rehabilitation.  When she finally returned to work she had to work light duty for several weeks.

New Jersey’s Appellate Division recently ruled that federal labor law does not preempt an employee’s disability discrimination claim under the New Jersey Law Against Discrimination (“LAD”) or retaliation claim under the Workers’ Compensation Law (“WCL”).  Federal labor law preempts state law claims that require an interpretation of a collective bargaining agreement (“CBA”) between an employer and a union, meaning any such state law claims cannot proceed.

Truck driver alleges disability discriminationBrian Hejda, a union member, worked as a commercial truck driver for Bell Container Corporation.  In August 2012, he suffered a knee injury at work.  Mr. Hejda’s doctor placed him on restrictions and required him to work “light duty.”  Bell did not return him to work because it did not have a light duty position for him.  An orthopedist subsequently cleared Mr. Hejda to return to work in late September, but indicated he needed the same restrictions and could not drive a commercial truck.

In February 2013, another orthopedist cleared Mr. Hejda to return to work without any restrictions.  Several weeks later, Bell sent a letter to the union indicating that under a Department of Transportation (“DOT”) Federal Motor Carrier Safety Regulation, Mr. Hejda could not return to driving a commercial truck until a Certified Medical Examiner medically examined and certified him “physically qualified to operate a commercial motor vehicle.”

Earlier this month, the United States District Court for the District of New Jersey permitted an employee to continue with his claim that his employer harassed him because he is disabled, but dismissed his other disability discrimination claims.

Francis Gavin worked for Haworth, Inc. in various sales roles.  Mr. Gavin has a back disability which required him to undergo several surgeries and time off from work.  Most recently, he took off two weeks after lumbar spinal fusion surgery in August 2012.  He returned to work gradually, with medical restrictions for approximately 4 ½ months.

Employee with back disability can pursue harassment claim.After he returned to work, Mr. Gavin’s supervisor, Henry Pizoli, frequently made disparaging comments about his back condition.  For example, he commented about the fact that Mr. Gavin had to wear a duragesic patch and a back brace, saying it “doesn’t look good in front of customers” and asked him in front of a customer if he would be “able to work normally without this [back condition] being the center of attention.”  Mr. Pizoli also told Mr. Gavin he “should have never come back to work” after his surgery, and repeatedly suggested he should “leave.”

Earlier this month, New Jersey’s Appellate Division reversed a trial court’s decision that had dismissed Robert Benning’s disability discrimination lawsuit because the trial court improperly ignored evidence which supported his claim.

Custodian claims disability discrminationMr. Benning is disabled.  Specifically, he has cognitive impairment from an episode of cardiac arrest in 1984, which causes him difficulty with his short-term memory and processing new information.

In September 2006, Mr. Benning began working for the Middlesex Regional Education Services Commission (“Middlesex”).  Although he initially served as a teacher’s aide, he quickly began to work as custodian.  Between 2006 through 2009, he consistently received positive performance ratings.

Disabled employee firedA New Jersey court recently ruled that a jury must determine whether an employer committed disability discrimination in violation of the New Jersey Law Against Discrimination (“LAD”) by firing an employee for making a mistake on a day on which he had asked to be on a medical leave.

Matthew Cook worked for Gregory Press, Inc. as a printing machine operator.  In 2011, he began to experience neck pain, numbness and tingling in face, and tingling in his hands.  He saw a doctor who recommended an MRI.

In the meantime, Mr. Cook’s home was flooded and severely damaged by Hurricane Irene.  He took almost a week off from work to repair his home.

Earlier this year, the New Jersey Supreme Court ruled that in an employment discrimination lawsuit the employee’s treating physician can offer medical opinions relating to the medical treatment without having to be designated an expert witness.

Treating physician permitted to testify as expert witness
Patricia Delvecchio worked for the Township of Bridgewater as a police dispatcher.  Ms. Delvecchio suffers from irritable bowel syndrome (“IBS”).  She claims her IBS is a disability which Bridgewater failed to accommodate, in violation of the New Jersey Law Against Discrimination (“LAD”).  Specifically, she asked the department not to require her to work the night shift because doing so exacerbated her IBS.  The town refused, claiming doing so would impose an undue hardship since it would have to require other dispatchers to work the night shift more frequently.  Bridgewater also denied Ms. Delvecchio’s requests to take an extended sick leave.

Eventually, the Township asked Ms. Delvecchio to resign.  Ms. Delvecchio refused, and instead accepted a job as a records clerk, a position with a lower salary than her previous job as a police dispatcher.  Ultimately, Bridgewater fired Ms. Delvecchio for “neglect of duty” and “chronic/excessive absenteeism” because she had exceeded her allotment of sick leave.

A recent ruling by New Jersey’s Appellate Division demonstrates that an employer can commit disability discrimination in violation of the Americans with Disabilities Act (“ADA”) if it requires an employee to attend a psychiatric fitness for duty exam without a sufficient basis to do so.

Paul Williams worked for the Township of Lakewood, New Jersey as a truck driver for the Department of Public Works (“DPW”). In March 2013, Lakewood received an anonymous letter which claimed Mr. Williams’s coworkers “dread” working with him and “everyone knows he has some sort of mental issues” that lead to daily “tirades and outbursts.” The letter asked Lakewood to get Mr. Williams help, and to take steps to ensure the safety of his coworkers.

Employer can violate ADA by unwarranted psychiatric fitness for duty examLakewood waited more than eight months before it did anything in response to the letter. In December 2013, it ordered Mr. Williams to attend a psychological fitness for duty examination, and warned him he would be subject to discipline if he failed to attend. Mr. Williams refused to attend the exam, claiming it violated his rights under the ADA. True to its warning, Lakewood fired Mr. Williams.

Earlier today, New Jersey’s Appellate Division ruled that an employee is entitled to a trial to determine whether her employer fired her because it incorrectly perceived she was unable to perform her job due to an actual or perceived disability, obesity. The case largely turns on whether the employer’s physician relied on an accurate description of the physical requirements of her job.

New Jersey school sued for disability discriminationBarbara Sheridan worked as a custodian for the Egg Harbor Township Board of Education. Egg Harbor was concerned whether Ms. Sheridan could perform her job based on the fact that she was short of breath and her face was flushed after she performed certain more strenuous job duties. The school district also was concerned that Ms. Sheridan was unable to climb ladders, had trouble climbing stairs, and was a risk that she would injure herself or otherwise performing her job duties.

The school district sent Ms. Sheridan for a fitness for duty exam with an independent physician, who concluded she physically was incapable of performing all of her job duties. Relying on those conclusions, the school board fired Ms. Sheridan.

In my previous article, Employer Must Provide Job Description So Employee Can Assess Need for Reasonable Accommodation, I discussed a case which addresses an employee’s right to a reasonable accommodation for a disability. The same case also demonstrates the power of direct evidence of discrimination.

Judge Ruling in Disability Discrimination CaseDirect evidence is evidence that directly reflects the employer’s discriminatory motive. For example, it can include a statement by the employer that it fired the employee for a discriminatory reason.

Ordinarily, at a trial the employee has the ultimate burden to prove that a discriminatory factor such as age, race, gender or disability made a difference in the employer’s decision to fire her. However, if the employee can present direct evidence of discrimination, then the employer has the burden to prove it did not discriminate against her.

The New Jersey Appellate Division Court recently considered the standard for discharging an employee based on a “perceived disability,” and in so doing reversed a grant of summary judgment to the defendant. In Grande v. Saint Clare’s Health System, the Court applied the standard established in 1998 in Jansen v. Food Circus Supermarkets, Inc., which provides that in evaluating whether an employee can remain in a position despite having a disability, the standard is “whether the handicapped person can do his or her work without posing a serious threat of injury to the health and safety of himself or herself or other employees.”  This “requires the employer to conclude with a reasonable degree of certainty that the handicap would probably cause such an injury” before it can fire an employee.  According to the Court, in determining whether the employee “poses a materially enhanced risk of serious injury . . . [p]robability, not mere possibility, is key.”

In this case, the plaintiff, Marianne Grande, worked as a nurse for the defendant employer, St. Clare’s Health System, for approximately ten years. During her last three years of employment, she suffered three injuries at work, two injuries to her shoulder and one to her back.  Following her back injury, she took family and medical leave followed by personal leave.  While on leave, the plaintiff’s physician cleared her to return to work full time without any restrictions.  Despite such clearance, the defendant required her to participate in a “functional capacity evaluation test,” to assess her ability to, for example, lift certain objects and move in certain ways.  In her role as a nurse, she worked with stroke victims and sometimes was required to move patients.

Hospital sued for disability discriminationWhen the evaluation was completed, it provided for some restrictions.  At this time, the plaintiff’s doctor allowed her to return to work in accordance with the restrictions set forth in the hospital’s evaluation.  That same day, however, the hospital discharged the plaintiff indicating it could not accommodate her disability given the restrictions set forth in the evaluation. Approximately one month after her discharge, the plaintiff’s doctor cleared her to return to work, again without restrictions.  Notwithstanding such clearance, the hospital declined to rehire her.

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