Legal Issues and Recent Developments, Published by the Lurie Law Firm LLC

Archive for April, 2010

Employer May Have Duty to Re-Arrange Shifts for Employee Unable to Commute Due to Partial Blindness

Monday, April 12th, 2010

On April 8, 2010, the Court of Appeals for the Third Circuit ruled that an employer may have violated the Americans with Disabilities Act by failing to accommodate an employee’s request to change her shift, claiming that her partial blindness made it difficult for her to commute at night.  In Colwell v. Rite Aid Corporation, No. 08-4675 (3d Cir. Apr. 8, 2010), Jeanette Colwell, a cashier at Rite Aid, was diagnosed with retinal vein occlusion in her left eye, and eventually became blind in her eye.   In mid-September 2005, Colwell notified her supervisor that, while she was able to perform her work duties without a problem, she found it difficult to drive at night, and requested to work only during day shifts. 

Colwell’s supervisor told her that she could not grant that request, as it wouldn’t be fair to the other employees.  Further, according to the collective bargaining agreement, shifts were based on seniority.  A few weeks later, Colwell provided a doctor’s note, recommending that she refrain from night driving. Colwell’s supervisor again refused her request to work only day shifts, and Colwell responded that her grandson would pick her up when possible, but that she could not routinely depend on others.   

Colwell’s union representative was also unsuccessful in convincing the supervisor to re-arrange Colwell’s shifts.  Colwell and her union representative then scheduled a joint meeting with her supervisor, who didn’t show up, claiming that ”he got tied up,” and would arrange another meeting. Frustrated, Colwell resigned, and gave two weeks notice, claiming that  “I feel I have not been given fair treatment. There has been prejudice against me. I have been picked on and lies have been told about me. No one deserves that kind of treatment.” 

Rite Aid did not respond to Colwell’s resignation letter.  Colwell then filed a lawsuit, claiming that Rite Aid failed to accommodate her disability, constructively terminated her employment, and retaliated against her.  After discovery, the district court dismissed Colwell’s complaint in its entirety.

The Third Circuit affirmed the dismissal of Colwell’s retaliation and constructive discharge claims, but found that there was an issue of fact as to whether Rite Aid tried to accommodate Colwell’s disability.  First, the Court held that Colwell was disabled as a matter of law, as she had no vision at all in one eye, rejecting Rite Aid’s argument that she did not prove that her condition had a substantial impact on her daily life activities.

The Court further found that Rite Aid had an obligation to attempt to accommodate Colwell’s disability.  In doing so, the Court rejected Rite Aid’s argument that Colwell was requesting a non-workplace accommodation:

Rite Aid adopts the position of the District Court that employers are not “required to accommodate [the] inability to commute to work independently” because “commuting to and from work falls outside the work environment.”  [citation omitted] In other words, Rite Aid argues that it had no duty to even consider changing Colwell’s shift because Colwell’s difficulties amounted to a commuting problem unrelated to the workplace, and the ADA does not obligate employers to address such difficulties. We agree with the EEOC that the reach of the ADA is not so limited. Instead, we hold as a matter of law that changing Colwell’s working schedule to day shifts in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates. The statute expressly so provides.

The Court concluded:

In sum, we hold that the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate a disabled employee’s disability-related difficulties in getting to work. As Rite Aid makes no factual argument about the reasonableness of Colwell’s request, nor has it argued before us that scheduling Colwell for day shifts would have been an undue burden, those questions are ultimately for the jury.

 The Court held, however, that there was a factual dispute as to whether or  not Rite Aid attempted to accommodate Colwell’s disability.  Rite Aid argued that it had thought that it did not need to change Colwell’s shift after she informed them that her grandson could pick her up; Colwell claimed, however, that she advised that she could not always rely on her grandson.  There was also an issue of fact as to who had terminated the interactive process; a jury could find that, by quitting before re-scheduling a meeting, Colwell had not given Rite Aid a further opportunity to accommodate her.  On the other hand, as the Court noted, a reasonable jury could conclude that any further meetings might be futile, as Colwell’s supervisor had consistently refused her requests. The Court summarized, “Under the circumstances presented in this case, a reasonable jury could thus conclude that either party violated the duty to engage with good faith in the interactive process.”

Interestingly, while the Court found that there was an issue of fact regarding the interactive process, and required that issue to be decided by a jury, it affirmed the dismissal of Colwell’s claim of constructive discharge.  To prove a constructive discharge claim, the employee must show that the working conditions are so unpleasant or difficult that a reasonable employee would feel that he or she had no option but to resign.  The Court further noted:

Factors we have found relevant to this issue are whether the employer (1) “threatened [the employee] with discharge” or “urge[d] or suggest[ed] that she resign or retire,” (2) “demote[d] her,” (3) “reduce[d] her pay or benefits,” (4) “involuntarily transferred [her] to a less desirable position,” (5) altered her “job responsibilities,” or (6) gave “unsatisfactory job evaluations.” Clowes v. Allegheny Valley Hosp., 991 F.2d 1159, 1161 (3d Cir.1993).  None of those circumstances existed here. 

 More specifically, the Court found that Colwell’s alleged isolated from other employees, being called slow, and management’s failure to react to her complaints were no so unbearable that a reasonable person would feel compelled to resign. 

Colwell has implications for both employers and employees.  It is a good reminder to both parties that they have an obligation to engage in an interactive process, in good faith, regarding workplace accommodations.  Further, employees who quit often have a difficult time meeting the requirement for a constructive discharge; given the realities of the workplace, it can be a difficult hurdle for employees to prove that their working conditions were so intolerable that they felt that they had no option but to leave.

Federal Government Fines NJ Transit $569,000 for OSHA-Related Retaliation

Thursday, April 8th, 2010

On Tuesday, April 6, 2010, the federal Occupational Safety and Health Administration (OSHA) imposed a $569,000 penalty on NJ Transit for retaliating against an employee who reported a work-related injury, according to the New Jersey Law Journal.

While the amount of the award is noteworthy -  it is the largest penalty imposed under the recent Federal Rail Safety Act, which prohibits discrimination against railroad whistleblowers — it is also groundbreaking in other ways.  While successful whistleblowers can recover back pay and front pay (the difference between the income that the employee could have earned, and what he or she actually did earn), OSHA awarded consequential damages for the injuries caused as a result of the loss of income.  More specifically, OSHA awarded the employee,  Anthony Araujo, $40,271 for lost wages, $50,000 for damage to his credit rating, $12,297 for loss of his car and $345,754 for loss of his home.  OSHA also imposed $75,000 in punitive damages, and $5,000 emotional pain and suffering, as well as various other fines and damages.

It appears that OSHA intended to send a strong message, particularly in light of its finding that NJ Transit showed ”reckless disregard for the law and complete indifference for complainant’s rights.”  More specifically, Araujo’s responsibilities included protecting a contractor’s crew from passing trains.  During one of Araujo’s shifts, a contractor’s employee came in contract with an electric line above the tracks, causing an explosion. 

The case stems from a fatal explosion on Feb. 25, 2008, at a job site along a railroad right-of-way in Newark where Araujo had been assigned to protect a contractor’s crew from passing trains. The employee’s clothes caught on fire and, although Araujo radioed for help, the employee died the following day from burns suffered from the explosion. 

Following an initial investigation shortly after the accident, Araujo’s supervisor informed him that he had done nothing wrong.  The next day Araujo told his supervisor that he was distraught and unable to sleep.  He also requested help from NJ Transit’s Employee Assistance Program, was  diagnosed with post-traumatic stress disorder, and began counseling.  On February 27, Araujo was then put on paid EAP leave, Araujo’s supervisor called his EAP counselor, complaining that Araujo was malingering.

On March 5, 2008, NJ Transit notified Araujo that he was under investigation for violating agency policies in connection with the accident, and it suspended without pay.  NJ Transit held a disciplinary hearing more than six months later, and finally notified Araujo on February 11, 2009 that his discipline was over, and that he could return to work.   During his suspension, Araujo had no income from NJ Transit, and tried to live on credit cards, but ultimately lost his house and car, and his credit rating suffered dramatically.

In announcing its findings, OSHA’s Regional Administrator Robert Kulick said, “A preponderance of the available evidence indicates that Complainant’s reporting of his work related illness was a contributing factor in the adverse actions taken against him. Accordingly, OSHA finds that there is reasonable cause to believe that Respondent violated FRSA.”  OSHA also noted that NJ Transit did not cooperate in its investigation, did not make employees available for questioning and, although it requested an extention of time to file an answer to the charge, it never did so. 

This case underscores the need for employers to take employee complaints seriously, to investigate fully and promptly, and to cooperate in governmental investigations.

Employee Not Entitled to Unemployment for Gross Misconduct, Even If Following Orders

Monday, April 5th, 2010

According to a recent unpublished Appellate Division decision, an employee is not entitled to unemployment benefits where she engaged in gross misconduct, even if she did so at the direction of her employer. 

In Fore v. Board of Review, Docket No. A-0830-08T2 (App. Div. Apr. 5, 2010), the employee-nurse was terminated by Robert Wood Johnson University Hospital (the “Hospital”) after she admitted that she had made various notations and assessments on a patient’s chart, even though she had not actually seen that patient.   The employee acknowledged that standard nursing practices prohibited making notations without seeing a patient, that she recorded verbatim the doctor’s assessment of the patient, and that she simply did what she was instructed to do.  In this regard, she claimed that her actions were consistent with the procedure that was in place in the department.  She further testified that she had complained about this procedure to various supervisors, but that she was criticized if she did not complete the report as directed.

Despite this testimony, both the Board of Review and the Appellate Division held that the employee was not entitled to unemployment benefits.  Initially, the court noted that employees are not eligible for unemployment if they are terminated for “‘gross misconduct.”   Here, the employee created records which falsely indicated that the employee and Hospital had provided certain benefits; the Appellate Division held that this constituted gross misconduct, and possible criminal violations.

Thus, the primary issue before the court was whether the employee should be excused because she was following orders.  The Appellate Division found that there was ample evidence to support the Board of Review’s decision to deny the employee unemployment benefits: 

There is substantial evidence in the record to support the findings of the Appeal Tribunal and, in turn, of the Board of Review. The Tribunal added that claimant had her professional obligations not to follow improper or inappropriate instructions from people (including the chief radiation technician Foley) who were not nurses. The Appeal Tribunal also expressly added it did not “doubt that the claimant was told to complete the charts as she had been” or that her “workload was possibly too much for one person to handle.” It stated that “[n]one of that[,] however, relieves the claimant of the obligation to act in a manner consistent with her licensure,” or excuses the indication on medical records “that she had performed the assessments” which she had not.

Therefore, the record also includes sufficient evidence that claimant misrepresented that she performed professional assessments that she had not and, that by doing so, she violated a section of the New Jersey Code of Criminal Justice, N.J.S.A. 2C:21-4.1. There is no requirement or policy requiring a conviction to preclude unemployment benefits, cf. In Re Election Law Enforcement Comm’n, __ N.J. __ (2010) (use of campaign funds not proper to defend indictment for crime), and even if Robert Wood Johnson or its staff was not deceived or mislead, we can take notice that pain assessment reports can be reviewed to evaluate regulatory compliance and insurance recoveries.  Accordingly, the record supported the denial of benefits under N.J.S.A. 43:21-5(b) for “gross misconduct.”

After finding that there was substantial evidence of misconduct, the Appellate Division rejected the employee’s “Nuremberg Defense” that she was simply following improper — and potentially illegal — orders.

Were we to accept claimant’s argument that she should receive unemployment benefits when discharged for falsifying a report, or because she did not “deceive or mislead any person as to information . . . concerning the patient,” we would be permitting wrongdoing and suppressing the truth about misconduct by encouraging employers to retain wrongdoers who follow their supervisors’ unlawful commands——and would be acting inconsistent with public policy established in legislation such as the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8, and our common law jurisprudence. See, e.g., Tartaglia, supra, House v. Carter-Wallace, Inc., 232 N.J. Super. 42 (App. Div.), certif. denied, 117 N.J. 154 (1989). Stated differently, if we took the position advanced by appellant we would encourage employers to retain wrong doers as a means of avoiding unemployment compensation losses.

Finally, the court noted  that, while the employee was not entitled to unemployment benefits, she might be entitled to recover against the Hospital for alleged violations of the New Jersey Conscientious Employee Protection Act (“CEPA”), which prohibits employers from taking retaliatory action against employees who complain about violations of law or public policy.  See here for more information regarding CEPA.

Although the Appellate Division’s insistence on personal responsibility may be laudable, in practice it may put an employee in an untenable Catch-22.  An employee has the option of objecting to perceived illegal conduct but, if the complaint falls on deaf ears, the employee’s options are limited, and unpleasant.  1.  Continue to follow orders, with the understanding that the employee may be personally liable for illegal activity and, if then fired, not be able to receive unemployment benefits; 2. refuse to follow orders, and suffer potential retaliation, including ostracism and termination for insubordination; 3.  quit and try to find another job (which may be difficult in the current economic situation).  An employee who is facing potential retaliation or dismissal for raising concerns of illegal activity should therefore seriously consider consulting an attorney before the situation devolves into the one at issue in Fore.  

The employer in Fore may have also won a Pyrrhic victory.  Although it prevailed on the unemployment compensation dispute, it has received a judicial ruling that one of its employee engaged in potentially illegal conduct,  and it appears that it is facing a fairly substantial CEPA claim, with the employee claiming that the Hospital routinely directed her to routinely engage in this misconduct.  Further, the opinion indicates that the Hospital may have routinely and falsely billed insurance companies, and the government, for work that was not performed (possibly in violation of the False Claims Act, as well as other statutes).  In this regard, it is unclear exactly what happened to the employee’s complaints, and whether they were ever elevated and/or whether the Hospital ever investigated these issues.  As a result, the Hospital may have also put itself into a Catch-22: if they didn’t terminate the employee for improper activity, it may have looked like they endorsed the conduct; by terminating her, however, they may have bought a CEPA claim, as well as a judicial opinion publicizing potential illegal systemic activity.  This is  a strong reminder to employers to take complaints seriously, and to act on them promptly, in the hope of avoiding precisely this type of situation.

A copy of the Fore decision is available from the author, upon request.

Employer Loses Disability Discrimination Claim Due to Medical Opinion Based on Failure to Investigate

Thursday, April 1st, 2010

In an unpublished decision by the New Jersey Appellate Division today, the court affirmed a finding that a school district unlawfully failed to reinstate a teacher who took a psychological disability leave after he was accused of improper comments and behavior.  Ponsi v. Cliffside Park Board of Education, Docket No. A-5902-07T2 (Apr. 1, 2010).  On May 23, 2003, John Ponsi, a teacher at Cliffside Park High School, was unexpectedly called into the principal’s office for a meeting with two students, who accused him of making racial and lewd remarks earlier that week.  Another teacher was also at that meeting, who accused Ponsi of pushing her that same week.  Four days later, the Board of Education notified Ponsi that he was suspended with pay, pending the outcome of an investigation and psychological examination.

Contrary to the notice, the Board did not conduct an investigation.  Ponsi did, however, see his physician, who referred him to a psychiatrist due to depression and anxiety resulting from the accusations and suspension. In September 2003, Ponsi was also evaluated by Dr. Meyerhoff, a psychiatrist appointed by the Board, who concluded that Ponsi was unable to teach for the foreseeable future.  As a result of that examination, the Board notified Ponsi that he was ineligible to teach until he provided proof of recovery and that, if his absence exceeded two years, his employment would be terminated.

On January 31, 2005, Ponsi’s psychiatrist provided a written report, finding that Ponsi’s depression and anxiety had sufficiently abated and that that he could return to teaching.  The Board then had their initial psychiatrist  re-examine Ponsi.  The psychiatrist agreed that Ponsi’s depression and anxiety had abated, but found that Ponsi should not return to work, because he showed no repentance or remorse over the alleged lewd and racial remarks, or the pushing incident.  Dr. Meyerhoff wrote:

Though Mr. Ponsi is ready to return to work and, in theory is less overtly troubled and distraught than previously, he is not repentant about the previous school problem, offers no additional information which would logically explain why a teacher and two students, in effect, conspired against him, and conveys an astonishingly comfortable, serene and tolerant attitude as he, veritably, would accept reinstatement in school, without care or concern. Probably, with the aforementioned sense of self righteousness he could stand before  a classroom for days or even weeks, but it is likely he would unravel, at some point. If the Cliffside Park Board of Education seriously wishes to reinstate him, it is not unreasonable that he be re-interviewed, as a “returning” employee, by the same administrators he suggests have been incompetent.

Although the Board had conducted no investigation, its psychiatrist accepted all allegations against Ponsi as if they were true and, based on this assumption, decided that the Board should not reinstate Ponsi.  The Board, knowing that it had conducted no investigation, and that the allegations had not been proven, agreed with its psychiatrist’’s evaluation, and decided not to reinstate Ponsi.

Ponsi then retained a second psychiatrist.  This psychiatrist disagreed with Dr. Meyerhoff, who

diagnosed a delusional disorder, because Mr. Ponsi was not repentant, offering no additional information to logically explain why a teacher and two students would have conspired against him . . . Mr. Ponsi does not use the term, “conspiracy,” with me. I do not discern any paranoid delusions. His account of the accusations made against him is plausible and does not appear to be delusional. He raises reasonable doubts as to the validity of such allegations for which he cannot honestly express remorse or logically explain. In my view, this cannot be held against him. Since he is not delusional, I cannot agree with Dr. Meyerhoff that he will “unravel” at some point when teaching in a classroom.

The Board nevertheless decided not to reinstate Ponsi, and still did not investigate the underlying accusations against him.

After an evidentiary hearing, the Division on Civil Rights found that the Board violated that Law Against Discrimination by failing to offer a reasonable accommodation for Ponsi’s disability.  The Appellate Division affirmed this ruling.  The court noted that it was clear that Ponsi had a disability.  Further, as the Division on Civil Rights found that Ponsi’s experts were more credible than Dr. Meyerhoff, the court found that Ponsi established that he was qualified to return to work.  The court also reasoned that, once Ponsi claimed that he was entitled to reinstatement, the Board was obligated to engage in an interactive process, to determine whether Ponsi could return and, if so, whether Ponsi needed any reasonable accommodation.  As the court observed, the Board did not even bother investigating the allegations, even though itknew that its psychiatrist’s opinion was based entirely on the assumption that the allegations were true.  The court summarized, “If Dr. Meyerhoff’s assumption that the allegations against Ponsi were true is discounted, his diagnosis supports Ponsi’s reinstatement. Furthermore, the Board did not even follow Dr. Meyerhoff’s recommendation that Ponsi be interviewed, a clear signal that they had no intention to reinstate him.”

There are several lessons to be learned from Ponsi.  First, depression and anxiety may be considered protected disabilities, even if they are caused by job-related stressors.  Second, while it is understandable that the Board might have been reluctant to call Ponsi in for an investigation while he was on leave suffering from depression — and may have had difficulty conducting an investigation into a few remarks two years later, when Ponsi was able to return — employers that do not investigation allegations, and who rush to judgment, do so at their own peril.  Third, employers that retain their own doctors to examine employees should take care to ensure that accurate and objective information is being provided.  Fourth, if there are clear factual errors, or internal inconsistences, in an examination, the employers should not blindly accept the report and its recommendations. 

A copy of the decision is on file with the author, and is available on request.