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Employee With Work Injury Was Properly Denied Reasonable Accommodation Request

Kim Mason was injured on March 22, 2011 falling off her UPS delivery truck and injuring her wrist, requiring surgery.  She reached maximal medical improvement in October 2011. Several months later she requested accommodations for her wrist disability under the ADA.  Her surgeon completed a form which indicated that Mason could not perform all the functions of her current UPS driver position without certain accommodations.  The doctor gave Mason a 25 pound lifting restriction with ability to lift 10 pounds occasionally.

Mason met with Human Resources regarding her accommodation request.  She suggested that she could be accommodated by obtaining a position without the requirement of lifting heavy packages, noting management training and package center supervisor positions.  She also identified other jobs like customer counter clerk, safety, and other less physical positions as suitable for her to perform.  She noted that during her 17 years with UPS she had performed many of these jobs that she was asking to be considered for.

There was no question that Mason could not continue to perform her current job as a delivery truck driver because it involved heavy lifting. HR noted that Mason had the education, skills and experience to perform many of the jobs that she requested transfer to, but unfortunately there were no current openings.  UPS has an ADA committee, and the committee made a final determination that there simply were no jobs available for Mason to perform.  The company kept looking for union jobs during the next six months but none came open.

UPS employees who sought management positions in the company were required to go through the company’s “Management Assessment and Promotion Process” or “MAPP.”  To initiate the process, the employee had to submit a written letter of interest to UPS, and this letter had to be submitted for every year that an employee wished to be considered for a management position.  Letters of interest expired every December 31st.  Once a letter is submitted, the employee’s supervisor would conduct an initial assessment with scoring in a number of areas.  If an employee passed the first phase, then there were additional steps for the MAPP process.  This MAPP process became pivotal because two positions opened up at the Huntsville, Alabama location that did not require handling packages.  They were not union positions but management positions.  UPS notified Mason regarding these two open positions but Mason had not even started the MAPP process and was unavailable.

Thereafter Mason initiated the first phase of the MAPP process.  Her supervisor gave her a score  between two and three.  A score of 3.5 was required to pass the initial assessment, so Mason was never considered for promotion to a supervisory position in 2012.

From February 2012 to April 2013 several union job openings occurred at the Huntsville facility but all of them required physical functions far in excess of Mason’s restrictions.  Mason alleged that there were people doing some of these jobs who were receiving help in heavy lifting of packages, including the position of customer clerk.  One employee (Ms. Pender) gave testimony that she did get assistance from others on the heavy lifting aspects of the job.

Mason sued under the ADA asserting that UPS failed to accommodate her disability.  UPS moved to dismiss the case by arguing that Mason was not a qualified individual because she could not perform the essential functions of her job or the jobs she desired.  The district court agreed, and Mason appealed to the Eleventh Circuit Court of Appeals.  The Court said that it was Mason’s burden to identify the accommodation she needed and then show that it is reasonable.  The Court rejected Mason’s argument that UPS should have considered her for a management position.  “The ADA does not mandate that employers promote disabled employees in order to accommodate them.” (citation omitted).  Regarding Mason’s argument that other employees would be available to help on the heavy lifting, the Court said:

Mason’s restrictions would require her to leave every package weighing more than 25 pounds and some packages weighing between 10 and 25 pounds for other employees to deal with.  Given that evidence in the record reflects that the Huntsville center is small and leanly staffed, and requires all employees to perform their functions, Pender’s testimony is again insufficient to create a genuine factual dispute regarding the impact requiring another employee to assist Mason with any package weighing more than 25 pounds would have on the package center’s operations.  Thus, this requested accommodation is not reasonable.

In the end, the Court deferred to UPS’s job descriptions on what the lifting requirements were for each job and how the Huntsville facility functioned.  The Court found that Mason failed to prove she was a qualified individual, and therefore UPS had no duty to accommodate her disability.  The case can be found at Mason v. United Parcel Service Co. Inc., 2017 U.S. App. LEXIS 400 (11th Cir. 2017).  It demonstrates several points: first, how easily a workers’ compensation injury can lead to ADA litigation; second, how important job descriptions are in establishing essential functions of the job; third, if any employee cannot show he or she is qualified to do the job, there is no duty to accommodate.

Court Dismisses Intentional Harm Law Suit Against Employer

Injured workers continue to attempt to sue their employers in civil court for bodily injury no matter how often our courts make clear that such suits are barred unless intentional harm can be proved. For every successful claimant who meets the intentional harm standard, there are thousands whose cases are dismissed on summary judgment.  Such is the case of Madkiff v. Frazier-Simplex, Inc., A-1328-15T1 (App. Div. February 23, 2017).

Mr. Madkiff worked for Frazier-Simplex and was injured on January 15, 2010 while he and other workers were trying to demolish a glass furnace at the Alcan Glass plant.  Jackhammers were being used to break up a dense fire brick material that lined the glass furnace.  The jackhammering process created debris the size of boulders. The workers were using a mechanical hoist to remove the boulders, but it was taking more time this way.  So the foreman told the workers to stop using the hoist.  Plaintiff Madkiff and others complained to the foreman that “somebody is going to get hurt lifting these boulders.” The foreman said “do it or we will get somebody else to do it.”

Plaintiff began trying to manually remove the debris.  He lifted a boulder and felt sudden pain in his neck and back that incapacitated him from working.  He said that he knew the boulder weighed between 150 and 200 pounds but thought he could lift the boulder.  When asked if he thought the foreman was intending to injure him by telling him not to use the mechanical hoist, plaintiff said “I don’t know.”

Mackiff brought a workers’ compensation claim and also sued his employer contending that the employer’s action met the exception under the exclusive remedy rule in New Jersey because it constituted intentional conduct.  The trial court dismissed his suit, and plaintiff appealed.  The Appellate Division explained that plaintiff’s claim would be barred unless he could prove that his employer had the subjective intent of injuring him, or engaged in intentional conduct with a substantial certainty that plaintiff would be injured.

The Court distinguished between reckless conduct and intentional conduct.  “Plaintiff cites his testimony that he and some co-workers told the foreman ‘somebody is going to get hurt’ lifting boulders and that the foreman told them to do it anyway.  That did not show the foreman deliberately intended to injure plaintiff.”  The Court said that mere knowledge of a strong possibility of a risk does not prove substantial certainty.  The Court said, “Plaintiff proffered no evidence, expert or otherwise, that it was virtually certain he would be hurt, let alone that the foreman or defendant was aware of that virtual certainty.”

For his part, plaintiff argued that the foreman’s instructions to stop using the mechanical hoist amounted to intentional removal of a safety device.  But the Court did not buy this argument.  “The mechanical hoist was not a ‘safety device’ on a dangerous machine.  Rather, like a pulley, lever, shove, or forklift, it was a tool used by workers to accomplish their tasks.”  In the end the Court said that “it was a common fact of life for laborers in the construction and demolition industry to injure their necks and backs when lifting heavy objects.”   Plaintiff could not show that his injury was “more than a fact of life of industrial employment.”

Employers will continue to win suits like this for intentional harm because the New Jersey legislature fully intended to make workers’ compensation the exclusive remedy for workers who suffer injuries arising out of and in the course of employment with only truly rare exceptions.

Third Circuit Clarifies Standard for Establishing Age Discrimination Claims

The Age Discrimination in Employment Act (“ADEA”) is a federal law that prohibits employment discrimination against employees over the age of 40.  One of the lingering questions under the law has been what happens when an employer adopts an employment policy that, while seemingly benefiting a group of employees over 40 years old, also simultaneously adversely affects other employees much older than 40.  For years, in these kinds of situations, federal appeals courts have held that there can never be such a thing as subgroup age discrimination under the ADEA, meaning that in the above example, the older subgroup of harmed employees could not claim age discrimination.  Recently, however, in Karlo v. Pittsburgh Glass Works, 2017 U.S. App. LEXIS 406 (3rd Cir. January 10, 2017), the federal Third Circuit Court of Appeals gave new life to this legal theory, and held that such a claim of age discrimination is now indeed cognizable under the ADEA in subgroup situations.

The legal question that the Third Circuit had to decide in Karlo was whether a subgroup disparate impact claim could be brought under the ADEA. Disparate impact is a way of proving discrimination where a facially neutral employment policy has an adverse impact on a class of employees protected under the discrimination laws. In Karlo, a group of employees over 50 years of age claimed that their layoff from respondent was improper age discrimination because a disproportionate number of employees over 50 years old were laid off while persons who were over 40 but under 50 years old were not. Relying upon past United States Supreme Court precedent holding that the ADEA prohibits all forms of age discrimination, not just age discrimination that happens to affect only persons who are over 40 years old age, the Third Circuit held in Karlo that disparate impact claims can be brought to prove age discrimination under the ADEA, even when the group that is benefited by the subject employer’s practice happens to be over 40 years old.

The Third Circuit’s decision has now created a “split” amongst how federal appeals courts have ruled on this issue. This means that the present decisional law on this issue is not uniform throughout the country. When this happens, the United States Supreme Court will often have to decide the issue to create the necessary uniformity on the standard to be applied by the federal courts. Therefore, until that eventually happens, employers must be more cognizant of how sometimes even a facially neutral employment policy that ostensibly makes no wrongful distinctions amongst employees may result in age discrimination because the policy harms older employees in a disproportionate way compared to other older employees. Because of this possibility, employers must not only make sure that their employment policies not expressly discriminate against older employees, but the impact of how such policies may apply and affect other older employees must also be evaluated so that such policies do not unintentionally discriminate against members of that protected class.

Because disparate impact claims are complicated and often difficult to recognize, employers are wise to seek sound advice from an experienced labor and employment lawyer whenever there is suspicion or concern that a neutral employment policy is having a harmful impact on a group of employees protected under federal or state anti- discrimination laws.

Is a Job Duty Reassignment Considered an Adverse Employment Action?

Employers occasionally find themselves in a situation where they must reassign an employee to a different shift or a different duty assignment due to staffing needs or some other legitimate business reason.  Although the reassignment is usually lawful when it can be supported by legitimate business reasons, a disgruntled employee may claim that the reassignment is a discriminatory/unlawful adverse employment action.  This then leads to the question: when does an employee’s reassignment become an “adverse employment action” under the law?  The United States District Court for the District of New Jersey recently analyzed this question in Betts v. Summit Oaks Hospital, No. 14-06357, 2017 U.S. Dist. LEXIS 3535 (D.N.J. January 10, 2017).  The Court ultimately found that without evidence that the job reassignment had a tangible impact on the employee’s employment, the employee was unable to show that she suffered an adverse employment action.

Facts of the Case:

Defendant Summit Oaks Hospital (the “Hospital”) hired Willie Kay Betts (“Betts”) as a full-time nurse in November 2011. Betts was primarily assigned to the rehabilitation unit within the hospital but she was, at times, assigned to the detoxification unit. The Hospital regularly requires its employees to temporarily staff different units due to its varying staffing needs.

According to Betts, she was assigned to the detoxification unit in the hospital for the greater part of 2012.  Betts was not transferred to the detoxification unit, but she claims that she was staffed exclusively there until late 2012 or early 2013.  Betts also alleges that she was assigned to the detoxification unit more often than other nurses because of her race and color.  Betts resigned from her position with the Hospital in August 2015.

Betts filed a charge of discrimination against the Hospital with the New Jersey Division on Civil Rights and the Equal Employment Opportunity Commission (“EEOC”).  The EEOC conducted an investigation and issued a right to sue letter, detailing the EEOC’s determination that the Hospital had discriminated against Betts.  The EEOC declined to file suit against the Hospital and advised Betts of her right to file a private lawsuit.  Betts filed a lawsuit in United States District Court for the District of New Jersey, claiming that she was discriminated against on the basis of her race and color in violation of Title VII because she was assigned to the detoxification unit more often than Caucasian nurses were assigned there.

Analysis:

The Hospital filed for summary judgment. It argued that Betts was unable to establish that she suffered an adverse employment action, which is part of the prima facie case of discrimination.  An adverse employment action is a “significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing significant changes in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).  Here, Betts was sometimes assigned to work in the detoxification unit, when she had an alternative preferred unit. However, “minor actions such as lateral transfers and changes of title and reporting relationships are generally insufficient to constitute adverse employment actions.” Langley v. Merck & Co., 186 F. App’x 258, 260-261 (3d Cir. 2006). Although Betts preferred to work in the rehabilitation unit, Betts failed to show how her assignment to the detoxification unit had any tangible impact on her employment.  Betts’ pay, benefits and terms of employment remained the same throughout her employment with the Hospital.  Thus, Betts was unable to establish that she suffered an adverse employment action and summary judgment was granted in favor of the Hospital.

What does this mean?

      Employers have the ability to temporarily reassign employees based upon legitimate business needs.  If a reassignment does not have any tangible impact on the employee’s employment, this will not be considered an adverse employment action.  Since the question of whether or not a reassignment will have a tangible impact upon employment can be fact specific (and more complicated than it seems at first glance), it is best to consult with counsel before making significant reassignments of employees.

Court Upholds City’s Termination of Worker with Lupus Based on Doctor’s Note Prohibiting Outdoor Work

Jimmy Mathis worked as a laborer for the City of Red Bank in Tennessee. Eventually he rose to the position of Assistant to the Director of Public Works. Initially he would inspect for building code violations, handle animal control problems, oversee street projects and handle citizen requests. A written job description described his duties, which also included exposure to temperature extremes during outdoor work.

In 2011 a new Public Works Director required of Mathis more code inspections, which meant more outdoors work. The level of outdoor work continued to rise in 2012 when Mathis’s desk was moved from City Hall to the Public Works Garage. He was no longer responsible for much of his former administrative work, and those duties moved to other employees.

By 2012 Mathis began to have skin problems and saw a dermatologist, who diagnosed Lupus. He took FMLA leave and his dermatologist, Dr. Susong, noted that Mathis needed to be indoors. Mathis next sought an indefinite leave, which lasted six months. During that time, the Department continued to restructure its workflow. A code enforcement officer was hired, and the position of Assistant to the Public Works Director was eliminated.

Preparing to return to work from leave, Mathis met with the Public Works Director and City Manager. There was a dispute whether they told Mathis his job would mainly involve code work. The reality is that his job continued to evolve into outdoor work. Mathis did not request an accommodation at this juncture. He bought protective clothing and was permitted to wear ultraviolet light protective shirts. He paid for them himself, but the City eventually bought him other such shirts.

By 2013 it was clear that the protective clothing was not reducing Mathis’s symptoms. He requested a new FMLA leave. His job at this point was described mainly as mowing grass and weeding. Dr. Susong wrote a certification stating that Mathis must avoid sunlight. Asked to clarify whether Mathis could not work outside, Dr. Susong said emphatically that he must work indoors.

The City met with Mathis, who inquired about possible indoor work but he was advised that he was not qualified for the two open jobs, lacking computer skills and a CDL. On account of the strongly worded note from Dr. Susong and the absence of any vacant positions, the City terminated Mathis’s employment. Mathis sued under the ADA alleging failure to make reasonable accommodation.

The City prevailed at the federal court level, and Mathis appealed to the Sixth Circuit Court of Appeals. The Appeals Court observed that Mathis must show that he can perform the essential functions of his job with or without accommodation, but Mathis failed to do that. Mathis said he wanted to be returned to his pre-2011 work, but even that job required some outdoor work. There were days even in his pre-2011 job when Mathis would be outside four to five hours. The Court said that Dr. Susong’s note disqualified Mathis from any outdoor work.

During the course of litigation, Mathis changed his position and argued that he could handle limited sun exposure with protective clothing. After the City’s motion for summary judgment was filed, Dr. Susong watered down his initial certification which prohibited any outdoor work. The Court said that these after-the-fact changes in Mathis’s position were irrelevant. The City had the right to base its decision on the note that Dr. Susong prepared in 2013 prohibiting any outdoor work. The Court commented that essential functions of a job can and often do change. The changes in this case occurred well before Mathis’s diagnosis of lupus.

The Court concluded, “Mathis’s reasonable accommodation claim fails most plainly because the need for an accommodation was not apparent until mid-2013, when his limitations would not have allowed him to perform his desired job’s essential functions. But it also appears that no accommodation would have been available even if Mathis had requested one in early 2012, because the job he desired no longer existed.”

Mathis also argued that the City failed to engage in the interactive process. But the Court responded that before that process commences, the worker must inform the employer that a reasonable accommodation is needed. 29 C.F.R. Pt. 1630, App. In the end, the Court explained that the City really had no options once Dr. Susong wrote his note saying that Mathis could not have any outdoor exposure because Mathis was not qualified for any available indoor job.

This case points out the importance of having a good job description and the fact that jobs can and do change, adding and sometimes subtracting essential functions. The case also demonstrates the power that doctors have when they prepare medical certifications regarding restrictions at work. In this case Dr. Susong’s restriction against any outdoor work boxed the plaintiff out of his job. A late attempt by the doctor to amend his opinion during litigation but after the job termination was properly rejected by the court. What matters is what information the employer has at the time it makes its employment decision, and in this case, the doctor’s report was crystal clear in stating that Mathis could have no outdoor exposure. This case can be found at Mathis v. City of Red Bank, 2016 U.S. App. LEXIS 19423 (6th Cir. 2016).

Appellate Court Rules Employer Has Subrogation Rights in Three Key Cases

Three cases were heard together in the New Jersey Appellate Division regarding the right of employers to obtain reimbursement under N.J.S.A. 34:15-40 in situations involving car accidents where medical treatment was potentially recoverable under PIP.  The cases are Lambert v. Travelers Indemnity Company of America, Reed v. Qual-Lynx and Township of Marlboro, and Agar v. Qual-Lynx and Township of Hazlet, App. Div. A-1073-14T3, A-3040-14T1, A-3071-14T1 (App. Div. August 24, 2016).

The first case involved Jennifer Lambert who worked for the Howell Township Board of Education as a school bus aide.  She was injured in a work-related car accident.  Travelers Insurance Company paid $94,705.22 for medical expenses and $54,695.87 for indemnity benefits.  Lambert sued the other driver and recovered $300,000.  Her lawyer refused to reimburse Travelers anything for medical expenses but agreed to reimburse two thirds of indemnity benefits.

The second case involved Paul Reed, who  worked for the Township of Marlboro as a police officer.  Reed was redirecting traffic during work when he was struck by a vehicle.  Marlboro belonged to the Monmouth Municipal Joint Insurance Fund and its third party administrator, Qual-Lynx, paid $60,430.48 for medical expenses and $44,578.29 for indemnity benefits.  Reed recovered $100,000 in his third party law suit.  Counsel for Reed offered to reimburse the JIF two thirds of indemnity benefits but refused to reimburse any medical expenses.

The third case involved William Agar, who worked as a police officer for the Township of Hazlet.  Officer Agar was injured on June 26, 2011 while sitting in his police car, which was struck by another vehicle.  The Township of Hazlet also belonged to the Monmouth County Municipal Joint Insurance Fund and the JIF paid $4,331.02 for medical expenses and $15,693 for indemnity benefits.  Agar recovered $60,000 in his third party law suit and refused to reimburse any of the medical expenses.

All three cases went before the same Judge of the Superior Court, who ruled based on the unreported Dever decision that the plaintiff injured workers did not have to reimburse the portion of the workers’ compensation lien corresponding to medical expenses.  The Superior Court Judge concluded that since a no-fault insured cannot make a recovery from a third party tortfeasor for medical expenses, the workers’  compensation carrier could not seek reimbursement under N.J.S.A. 34:15-40.

The Appellate Division reversed in all three cases and said that the Automobile Insurance Cost Reduction Act  (AICRA) did not negate the right of employers to subrogation of medical expenses.  The Court explained that the way N.J.S.A. 39:6A-6 of AICRA works is that workers’ compensation becomes the primary payor in a work-related car accident.  The PIP carrier must pay initially by contract but ultimately the workers’ compensation carrier must reimburse the PIP carrier.  “N.J.S.A. 39:6A-6 ‘relieves the PIP carrier from the obligation of making payments for expenses incurred by the insured [, including medical expenses] which are covered by workers’ compensation benefits.”   The Court also noted that workers’ compensation benefits “shall be deducted from the benefits collectible under [PIP].”

The Court added, “The collateral source rule does not make workers’ compensation part of the PIP no-fault system; rather it shifts the burden of providing insurance from the automobile insurance system to the workers’ compensation system.”  The Court concluded, “. . . nothing in that statutory language suggests that the Legislature intended to treat a workers’ compensation insurer as if it were an automobile insurer.”   The Court added, “Nor is there any suggestion that the Legislature intended to treat workers’ compensation insurers as if they were PIP insurers.  It is fair to assume that had the Legislature intended to effectuate such a major change, it would have used express language in the statute and discussed that incorporation in AICRA’s legislative history.”

These cases make clear that the unreported decision in Dever is bad law insofar as its ruling on subrogation.  These three decisions have been reported and should end the controversy over recent years about whether a work-related plaintiff injured in a car accident must reimburse the employer for medical expenses when a third party recovery is made.

Divorcing Employees Deemed Member of Protected Class under the NJLAD

One aspect of the broad anti-discrimination protections afforded to employees under the New Jersey Law Against Discrimination (“NJLAD”) that is often overlooked involves the law’s prohibition on any type of workplace discrimination based upon an employee’s “marital status”.  The NJLAD does not define specifically what “marital status” actually means, but it has generally been understood to bar employment related decisions premised on whether or not someone was married or single. Given that understanding, the next logical question that arises is whether such protections apply to someone who is going through a divorce and transitioning from married to single status. That question was recently answered by the New Jersey Supreme Court in the case of Smith v. Millville Rescue Squad, ___ N.J. ___ (2016).

Plaintiff was employed as the director of operations for the defendant.  He was terminated a short time after he informed his supervisor that he was engaged in an affair with a volunteer worker and that he and his wife, who also worked for defendant, were separated and had commenced divorce proceedings. When allegedly informed of this, the supervisor told plaintiff that he could not promise that the revelation would not affect his job, and the same supervisor subsequently expressed his view that the divorce proceedings were going to “get ugly”.   Plaintiff was eventually terminated after a meeting of defendant’s board, purportedly for long standing job performance reasons, shortly after making this revelation about his on-going divorce proceedings.

In a lawsuit commenced challenging his termination filed against both the defendant and his own supervisor, the plaintiff alleged that he was wrongfully fired due to his sex and marital status.  At trial, at the conclusion of plaintiff’s case, the trial court granted the defense’s request for case dismissal.  The court determined that plaintiff failed to establish that he was terminated because (1) he was either married or unmarried, (2) because he was having an affair, or (3) because other employees were treated differently based on their marital status. The court likewise found that plaintiff’s evidence showed that he was terminated because defendant management was concerned about the likelihood of an acrimonious divorce, which the court declared did not give rise to a marital status discrimination claim. This ruling was eventually reversed on appeal, the Appellate Court determining that “marital status” under the law included the states of being separated and involved in divorce proceedings.

The Supreme Court upheld the decision of the Appeal Court, broadly ruling that the NJLAD protects employees going through a divorce from experiencing any adverse employment actions solely due to the fact that they were in the process of separating or ending their marriage. In justifying its decision, the Supreme Court believed that interpreting “marital status” to include married, single, and divorcing individuals, serves the statute’s remedial goal of ensuring that workplace decisions are made free of stereotypical notions that have no bearing on the employee’s ability to perform hisher job duties.

The Smith decision highlights again how broadly New Jersey courts interpret state anti-discrimination laws to cover things that most employers likely believe are not the subject of such legal requirements. In light of this decision, employers must again scrutinize their hiring and firing practices to ensure that employment-based decisions are being made free of any consideration of a person’s marital status, which now includes transitioning from married to being single.

 

 

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